DIVISIONAL MANAGER UNITED INDIA Vs. GOVIND MAJHI

JUDGEMENT

(1.) THIS is an appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, 'the Act') against the judgment dated 31.3.1997 of the Second Motor Accident Claims Tribunal (SD), Berhampur, in M.A.C. No. 37/95 (105/94).

(2.) THE facts briefly are that on 11.1.1994 at about 9.30 A.M. the respondent No. 1, while going or) a bicycle near Karahandba on Sukunda Berhampur Road, met with an accident with the truck bearing registration number ORG 9215 which was coming from Berhampur side. Respondent No. 1 suffered some injury and filed a petition for compensation of Rs. 50,000/ under Section 166 of the Act which was numbered as M.A.C. Case No. 37/95 (105/94). In the said petition under Section 166 of the Act, the owner of the aforesaid truck (respondent No. 2, and the appellant were impleaded as opposite parties. Respondent No. 2 did not contest the claim of respondent No. 1 and was set ex parte, while the appellant filed written statement and contested the claim of the respondent No. 1. One of the pleas taken by the appellant before the Tribunal was that the Insurance Cover Note for the truck bearing registration number ORG 9215 was issued on 11.1.1994 at 6 P.M. whereas the accident took place on the same day on 11.1.1994 at 9.30 A.M. Hence, the appellant was not liable to indemnify the owner of th6 truck for the accident which took place prior to the issue of the Insurance Cover Note. The Tribunal, however, rejected the aforesaid plea of the insurance company and held that the insurance policy commences from the mid night of the previous day as per the decision of the Supreme Court in New India Assurance Company Ltd. v. Ram Dayal and Ors., 1990 ACJ (SC) 545, and subsequent decisions of various High Courts. The Tribunal held that in this case although the accident took place at 9.30 A.M. on 11.1.1994 and the policy was issued at 6 P.M. on 11.1.1994, the appellant was liable to indemnify the owner as regards payment of compensation. On the basis of the evidence adduced in the case, the Tribunal awarded a compensation of Rs. 17,300/ with interest at the rate of 9 per cent per annum from the date of the application (24.2.1994) till the date of realization. Further, if the appellant failed to pay the same within a period of thirty days, the appellant shall be liable to pay the interest at the rate of 15 per cent thereafter till realization. Aggrieved by the said judgment and award of the Tribunal, the appellant insurance company has filed this appeal.

(3.) MR . L. Samantaray, learned counsel appearing for the respondent No. 1, on the other hand, submitted that as the truck was covered by a valid insurance policy, the insurer was liable to pay the compensation to the claimant and to get the same reimbursed from the owner if the defence of the insurer is that it was not liable in the facts and circumstances of the case. In support of this contention, Mr. Samantaray relied on the provisions of Section 149 of the Act and the decision of the Supreme Court in NewIndia Assurance Company Ltd., Shimla v. Kamla and Ors., AIR 2001 SC 1419.