VINABEN RAJESHKUMAR SOLANKI Vs. DHAVALKUMAR RAJESHKUMAR MEGHA

JUDGEMENT

(1.) Challenge herein is given to the order passed below Exh.35 in MACP no.320/17 dtd. 19/3/2022 by the MACT, Anand. Mr. Hakim submitted that the claim petition was filed by the heirs of the deceased for the vehicular accident which took place on 24/11/2016, wherein the Indigo car bearing registration no. GJ-6 BL-4664 was involved. The driver, owner and the insurance Company of the vehicle was joined as respondent in the matter. Mr. Hakim submitted that the respondent no.3- insurance Company had preferred an application for deleting as party to the proceedings on the ground that the policy issued of the vehicle involved did not cover the accident time as was observed that the policy was for a period of between 25/11/2016 to 24/11/2017 issued at 5.45 p.m. Hence, there was no contractual liability of the insurance Company.

(2.) Mr. Hakim submitted that the insurance policy itself mentions that it was signed in presence of the witness at Chennai on 24/11/2016 with the cover note number and receipt. Mr. Hakim submitted that the receipt number is also reflected in the policy and the said fact was brought to the notice of the Tribunal by way of reply Exh.44 and the endorsement has been reproduced in the reply. Inspite of that, the learned Tribunal has allowed the application of the insurance Company and had ordered to delete them from the matter. Mr. Hakim submitted that the insurance Company has been prematurely exonerated from the proceedings only on the ground that the time mentioned in the insurance policy is after the accident which the insurance Company is to plead and establish by placing reliance on the evidence on record as to when the premium was received and has to prove the proposal form signed and submitted by the owner of the vehicle. Sec. 64VB of the Insurance Act, 1938 provides that the risk coverage starts from the date of receipt of premium. Mr. Hakim has relied upon on the judgment in the case of Bimlesh & Ors. v. New India Assurance Company Limited, (2010) 8 SCC 591 to submit that in a summary proceedings, the Tribunal has to ensure that the claim application is heard and decided by the Tribunal expeditiously but at the same time has to ensure that all the issues raised are decided on merits and any objection raised by the insurance Company about maintainability would be connected with the liability which is required to be examined on merits of the case and such premature exoneration without dealing with the facts and evidence on record and without granting the opportunity to cross-examine, would lead to failure of justice.

(3.) The claimant while replying to Exh.35 of the insurance Company has raised an issue about the discrepancy in noting the period and further has relied upon the endorsement "In witness whereof this Policy has been signed at Chennai on 24/11/2016 in lieu of cover note No.dated Receipt No. CBCMOR2778889. Subject to IMT Endt. Nos. & Memorandum 28. I/We hereby certifiy that, the policy to which this certificate relates as well as this certificate of insurance are issued to accordance with the provisions of Chapter X and Chapter XI of the Motor Vehicles Act, 1988". As per the claimant, cover note was issued on 24/11/2016 which itself shows that the risk was covered from the date of issuance of the cover note and in the present case, the insurance premium was paid in cash. The said facts have been brought to the notice of the Tribunal. The Tribunal ought to have given opportunity to the claimants to prove the endorsement in the policy and further the insurance Company was also required to clarify those endorsement on the policy and the policy itself suggests that it was dated November 24, 2016 and policy is signed at Chennai on 24/11/2016 in lieu of cover note and receipt no. CBCMOR2778889. The learned Tribunal was also required to consider the provision of Sec. 64VB of the Insurance Act to consider the assumption of the coverage of the risk of receipt of the premium where specifically insurance policy refers to the cover note.