NATIONAL INSURANCE COMPANY LIMITED Vs. CHINTO DEVI

JUDGEMENT

(1.) The present appeal by Insurance Company is directed against the order dated 27th March, 1989 by the High Court dismissing in-limine the appeal filed by the appellant against the order of the Tribunal holding the Insurance Company liable under the policy. The question raised in this appeal is, whether the Insurance Company is liable on a policy taken at a time, which is after the time of the accident though admittedly it being of the same date. According to the appellant the policy was taken on 23rd February, 1987 at 4.45 p. m. for which reliance is placed on the covering note. On the other hand according to the respondent-owner the insurance was taken at 10. 00 a. m. in the morning and not in the evening. It is not in dispute that the accident had taken place at 11.30 a. m. The question which was considered and decided by the Tribunal was that when the policy is of the same date of accident, notwithstanding the same being issued at 4.30 p. m. , i. e. after the accident, it would still cover the liability of the insurer, from the previous mid-night of the same date. Accordingly, it held the appellant is liable for the same. This was the principle based on the principle decided by this Court in the case of Ram Dayal, stated hereunder.

(2.) Learned senior Counsel appearing for the Insurance Company submits that since after the decision in New India Assurance Co. Ltd. v. Ram Dayal and Ors. reported in [jt 1990 (2) SC 164 = (1990) 2 SCC 680], where this Court held, when the policy is of any date, it would cover the liability of the insurer from the previous mid-night preceding the same date, hence, even where accident, in point of time is earlier than the time when insurance policy was issued, the Insurance Company would be liable. A change in this principle is brought through decision of this Court which holds, if there is any special contract mentioned in the policy, it would be operative in terms of that contract; hence where time is mentioned when it was issued then the liability would cover only from the time it was issued. Reference is made in National Insurance Co. Ltd. v. Jikubhai Nathuji Dabhi (Smt) and Ors. reported in [1997 (1) SCC 66]. This was a case where the policy was taken at 4. 00 p. m. while accident took place at 11. 00 a. m. This Court held in view of the special contract mentioned in the policy viz. the time of its issue, it would be operative from that time and not from the previous mid-night. This decision has taken note of the aforesaid Ram Dayal's case. The similar principle is also decided in New India Insurance Co. v. Bhagwati Devi and Ors. reported in [ (1998) 6 SCC 534].

(3.) Relying on the said two decisions submission is, on the facts of this case the policy would only be effective from 4.45 p. m. of 23rd February, 1987 and since the accident took place at 11 30 a. m , the appellant would not be liable to pay to the insured.