JAIKRISHNDAS Vs. CHIRUTHAIL AMMAL

JUDGEMENT

(1.) The first respondent before the Motor Accidents Claims Tribunal, the owner oft he car CRP 6835 is the appellant herein. On 30-9-1976. at or about 10-30 a.m.'when the appellant who was getting down from his parked car,opened the door, it hit the scooter TMS 4191, driven by Divakaran, who was proceeding alongside the parked car resulting in the throwing away of the scooter driver and causing his death. The mother of the deceased filed a petition under S.110A of the Motor Vehicles Act. claiming compensation of Rs. 1.15.000, for the death of the deceased. The Second respondent is the Insurance Company with whom the appellant, has insured ' his vehicle. The additional Motor Accidents Claims Tribunal, Madras, by order dat6d 19-0-1979, determined the compensation at Rs. 20,780 under the various headings. However, the award was given only against the appellant and the Insurance company was held not liable. In this appeal by the insured, the learned counsel for the appellant did not question the claim of the first respondent herein, the mother of the deceased nor the quantum of compensation fixed. However, he contended that the Tribunal went wrong in absolving the insurance company of its liability to pay the money. If the award is both against the insured and the insurer, the learned counsel contended that the insured could have asked the Insurance company to pay and if he, had been made to pay the compensation, he would be in a position to recover the same ' from the Insurance company. The question, therefore, for consideration is whether the second respondent Insurance Company is liable for the claim.

(2.) The facts relevant to this aspect of the matter may now be noticed. The vehicle CRP 6835 was insured with the second respondent originally from 2391975 for a period of one year expiring on 22-9-1976. But the Insurance was not renewed with effect from 23-9-1976. As already stated, on 30-9-1976, the -accident took place at or about 10-30 a.m. On 30-91979 the appellant sent his proposal form Ex R-I praying for a comprehensive insurance policy. On the same day, the second respondent issued a cover note for a temporary period to expire on 14-101976. Later a regular policy was issued on 4-10-1976 noting the period of insurance from 1 30-9-1976 to 22-9-1977, both days inclusive. The original insurance policy produced by the appellant is marked as Ex R. II in this case.

(3.) Column 17 of the propsal form related to the period of insurance and he had requested for insurance from 30-91976 to 29-9-1977. However, after the words 'from 30-9-1976' we find in brackets '5:30 p.m.'. In the temporary cover note issued on 30-9-1976, also, we find against the column 'effective date of commencement of insurance for the purpose of the Act', '30-9-1976 (5-30 p.m.)' and against the date and place. it is also mentioned, '5.30 p.m.'. The appellant disputed the reference to '5:30 p.m.' in his proposal form and contended that it was, not there when he gave the proposal form and that there were some erasures and over-writings on '5:30 p.m.' and ' it is not believable. However, we find in the cover note, again a reference is made to "5:30 p.m.' and there are no erasures. But this fact, whether the proposal form was given at 5.30 p.m. or the cover note was issued at 5:30 p.m. is not going to matter on the point raised by the learned counsel for the appellant, and therefore, we need not well too much on this aspect. One other aspect mentioned by the learned counsel may also be referred to as a statement and that was according to the learned counsel the proposal form was sent by the appellant in the morning on 30-9-1979 through his manager and that at the time when he sent the proposal, the accident had not taken place. The Court below was not willing to place any reliance on this statement of the appellant in view of the fact that the manager himself has not been examined. But one thing is clear that the proposal form was not given by the appellant personally to the Insurance company, but it was taken by his Manager, though it may be subsequent to the accident at 10:30 a.m. Therefore, we will proceed to consider the legal question on the basis that the proposal form was sent on 30-9-1976 some time after 1030 a.m. and the acceptance also was subsequent, to the accident. But, as seen from the original Insurance Policy, produced, which does not mention anything about the time, the period of insurance covered is from 30-9-1976 to 29-91977. Clearly, therefore, the policy shall be deemed to cover from the midnight of 29/30-9-1976, which will cover the time of accident also