UNITED INDIA INSURANCE CO LTD Vs. GOPINATHAN

JUDGEMENT

(1.) A claim was made by an injured person before Motor Accidents Claims Tribunal for compensation. The motor accident had occurred on 26-12-1983 at about 7-30 a.m. in which the claimant sustained fracture of tibia and fibula, besides some other injuries. He was riding a moped (KLG 8830) along the public road which lies north to south. While he was overtaking a bus which was stopped on the western side of the road, a Fiat car (KLP 7905) came from opposite direction and collided with the moped. Claims Tribunal found that both the claimant and the car driver were negligent Claims Tribunal which assessed total compensation due to the claimant at Rs.65,200/- deducted one half therefrom on account of claimant's contribution of negligence in the accident and hence awarded a sum of Rs.32600/-. The appellant insurance company was directed to pay the said sum, besides fixing liability with the owner and driver of the Fiat Car. One of these appeals has been filed by the insurance company, and the other appeal has been filed by the claimant challenging the quantum of compensation assessed.

(2.) While dealing with the insurer's appeal, the following facts are relevant: The owner and driver of the car filed a joint written statement on 27-9-84. The insurer filed written statement on 13-9-84, in which, he has stated that the car was insured on 26-12-83 at 12.30 p.m. without disclosing that it was involved in an accident earlier on the same day and that the non disclosure of this material fact renders the insurance policy void. In the joint written statement filed by the owner and driver of the car they have mentioned that the car was covered by a valid policy. But nothing is mentioned in their written statement whether the accident was disclosed to the insurer or not. Ext.B1 is the policy of insurance and Ext. B5 is the certificate of insurance dated 26-12-83. It is evident from Ext. B5 that the policy was taken only at 12-10 p.m. on 26-12-83.

(3.) The decision of this Court in Oriental Insurance Co. Ltd. v. Sivan ( 1989 (2) KLT 897 ) was cited in support of the contention that a policy issued even after the time of accident will be good enough to cover the liability of the insured if the policy was issued on the same day. The point involved in the said case was whether the policy of insurance was effective from midnight on 14-7-1985 or whether it was only effective from 11 a.m. on 15-7-1985 at which time the policy was issued in the said case. The Division Bench in that decision laid stress on the words "effective date of commencement of insurance for the purpose of the Act" in entry No.3 in Form A of the Motor Vehicles (Third Party Insurance) Rules, 1946. Their Lordships in that context has observed thus: "No insurance policy, within the meaning of the Motor Vehicles Act, containing a clause that the risk under the policy would commence with effect from a specified time on a date can validly be issued". Accordingly, the Division Bench held that the risk under the policy must have commenced with effect from mid night of 14-7-1985.