UNITED INDIA INSURANCE CO LTD Vs. SASHIPRAVA SWAIN

JUDGEMENT

(1.) THIS is an appeal under the provisions of Workmen's Compensation Act against the award of the Assistant Labour Commissioner -cum -Commissioner for Workmen's Compensation and the sole question that arises for consideration is whether the insurance policy taken on a particular date mentions a particular time at which the policy was given can be said to be effective from the commencement of the date or from the specific time indicated in the policy in question. The aforesaid question arises because of a point taken by the insurer that the accident took place on 16.2.1987 at 7 a.m. whereas the policy of insurance was issued on the same day at 11.20 a.m. From the order of the Commissioner it transpires that this plea had not been taken by the insurer in its written statement filed before the Commissioner, but later on an application for amendment appears to have been filed on 21.7.1989 making this assertion and that application for amendment was never considered and was not allowed by the Commissioner and, therefore, the Commissioner came to the conclusion that any evidence led on that score must be held to be without jurisdiction and I entirely agree with the said conclusion of the Commissioner. The Commissioner, however, taking into account that assuming the point to be urged by the insurer and assuming it is held to have been established that the policy was issued at 11.20 a.m., in eye of law it, must be held to be effective from the commencement of the date and while coming to the aforesaid conclusion, he has relied upon the two decisions in Walker v. John McLean and Sons Ltd. 1980 ACJ 429 (CA, England) and United India Insurance Co. Ltd. v. B.M. Shukla 1988 ACJ 1052 (MP). The Commissioner has further examined the policy in question and entertained a suspicion about the same in view of certain scoring through for which no explanation was offered by the Branch Manager in course of his deposition. I am not delving into the matter in detail since the contention raised by Mr. Roy appearing for the appellant, to my mind, cannot be sustained in view of the Supreme Court decision on the point. The question is being examined and answered on the assumption that the policy was taken on 16.2.1987 at 11.20 a.m. though agreeing with the Commissioner, I hold that the insurer was not entitled to raise this plea and lead evidence on that score since there was no basis for raising the plea in the written statement filed by it and the subsequent prayer for amendment has not been allowed.

(2.) APART from the two decisions on which reliance has been placed by the Commissioner in the impugned order, the decision of the Supreme Court in the case of New India Assurance Co. Ltd. v. Ram Dayal 1990 ACJ 545 (SC), fully covers the present issue. Relying upon the interpretation made in the case of F&B; Warren, 1938 Ch 725 and the Division Bench decision of the Allahabad High Court in the case of Jad -doo Singh v. Malti Devi 1983 ACJ 747 (Allahabad), the Apex Court held 'When a policy is taken on a particular date, its effectiveness is from the commencement of that date.' The learned Judges also indicated that there are two judgments of the Madras High Court and a Division Bench decision of the Punjab and Haryana High Court also takes the same view. Mr. Roy appearing for the appellant, however, brings to my notice two Division Bench decisions of the Karnataka High Court which has taken note of the aforesaid Supreme Court decision and has taken a contrary view, those two decisions being National Insurance Co. Ltd. v. Indirabai 1992 ACJ 292 (Karnataka) and United India Insurance Co. Ltd. v. Kalavathi 1992 ACJ 888 (Karnataka). In the aforesaid Karnataka case, the learned Judges were of the opinion that Section 64 -VB of the Insurance Act was not brought to the notice of their Lordships of the Supreme Court and, therefore, the decision of the Supreme Court cannot be held to be binding. The learned Judges further while interpreting the word 'date' used in Section 64 -VB have relied upon an interpretation of the said word given by the Supreme Court in Narendra Madivalapa Khani v. Manikrao Patil AIR 1977 SC 2171, in relation to the provisions contained in the Representation of the People Act and ultimately came to the conclusion that where a specific time in the policy has been given then the policy must be effective from that very point of time and not from an earlier point of time. The aforesaid two decisions of the Karnataka High Court undoubtedly support Mr. Roy's contention to a great extent, but I am unable to agree with the view expressed by the learned Judges of the Karnataka High Court in view of the unequivocal detraction made by the Supreme Court in Ram Dayal's case referred to supra which clearly indicates that the effectiveness of the policy would be from the commencement of the date irrespective of the time on the date on which it is taken. In view of the aforesaid decision of the Supreme Court as well as the decisions of the Madras, Allahabad and Punjab and Haryana High Courts and also a decision of Kerala High Court in the case of Oriental Insurance Co. Ltd. v. Sivan 1990 ACJ 533 (Kerala), the distinction sought to be made by their Lordships of the Karnataka High Court does not appear to be justified. In the aforesaid premises, the answer to Mr. Roy's contentions would be that the policy of insurance became effective from the commencement of the date, that is, 16.2.1987 and consequently the insurer has been rightly held to be liable. It is to be reiterated that this contention of the learned counsel for the appellant is being dealt with and is answered since it was raised though in the absence of pleading to that effect the evidence could not have been taken into consideration as was held by the Commissioner. In the circumstances, this appeal is dismissed.