NATIONAL INSURANCE COMPANY LTD Vs. RAJWINDER KAUR

JUDGEMENT

(1.) In all the three appeals the common point urged for consideration is that the insurance company is not liable for the claim arising cut of the accident in view of the fact that the proposal had been given and a cover note had been obtained on 13.10.2001 at 5:00 p.m. suppressing the fact that there had been an accident earlier on the same day at 3:00 p.m and the said fact had not been revealed to the insurer. The Development Officer had been examined as RW-1 to testify the above facts of the actual issue of the cover note at 5:00 p.m. The time of the accident at 3:00 p.m is itself not in dispute. What was sought to be brought out through evidence in the cross examination by the counsel appearing for the driver and the owner was that the cover note stipulated the commencement of the policy at 00:00 hours on 13.10.2001 and therefore, the policy must be effective to cover the risk that had arisen by an accident during the currency of the policy.

(2.) Even apart from the evidence of RW-1, the Branch Manager himself has examined as RW-2 who also gave evidence to the effect that there was an investigation instituted and it had revealed that the accident that had taken place at 3:00 p.m and only subsequent thereto, the cover note had been issued. It is significant that the cross examination was only to the effect that the cover note referred to the commencement of the risk from 00:00 hours on 13.10.2001 and the owner and the driver did not have a courage to suggest that the proposal itself had been made prior to the accident. The evidence of RW-l was emphatic on three aspects: 1) the accident had taken place at 3:00 p.m, 2) the proposal of the cover note had come about subsequently at 5:00 p m and 3) at the time when the proposal for the policy was given or when cover note was issued, they had net been informed that an accident had already taken place with reference to the rame vehicle. The suggestion was only with reference to one aspect of the case that the cover note had assumed the risk from 00:00 hours and not from 5:00 p.m as spoken to by RW-1 and RW-2, This fact was taken by the Tribunal as completely governing the issue to make the insurer liable.

(3.) Even before me the same contention relating to the commencement of risk is advanced and the learned Counsel appearing for the Respondents would rely on the judgment of the Hon'ble Supreme Court in J. Kalaivani v. K. Sivashankar, 2001 10 JT 396. The Hon'ble Supreme Court had held that the liability of the Insurance Company would commence from the time when a specific mention of time is made and in the absence of such time the policy would become operative from previous midnight when bought. The principle of law is well taken and I have no difficulty in accepting the plea that normally the risk would commence from 00:00 hours if there had been no time stipulated in the policy. Another important aspect of the insurance law is that the contractor insurance is a contract of uberima-feidi (utmost good faith) and if there had been a suppression of material fact the policy would become vitiated. The Hon'ble Supreme Court in the above case had occasion to consider only one issue relating to commencement of risk and it had no occasion in that case to deal with the situation of suppression of material fact. That is precisely the issue in this case.