Oriental Insurance Co.Ltd vs Porselvi & Anr

2. Challenge in this appeal is to the order passed by a learned single Judge of

the Allahabad High Court dismissing the appeal filed by the present appellant under

Sec.173 of the Motor Vehicle Act, 1988 (in short the `Act').

3. The factual position is almost undisputed and the only dispute relates to the

date of commencement of the policy i.e. the date from which the policy was in

operation. The accident took place on 28/5/1996. The policy covers the period from

29.5.1996

to 28.5.1997. The High Court in para 13 of the impugned judgment held

as follows:

"As the cover note has already been issued on 28.5.1996 itself, which is

also entered in Ex. B1, Policy, the finding of the Tribunal fastening liability on

the appellant cannot be termed as perverse. In view of the above discussion,

there is no merit in this appeal. The quantum of compensation has not been disputed by the appellant--Insurance Company. In the result, the Civil

Miscellaneous Appeal fails and the same is dismissed."

4. Learned counsel for the appellant brought to our notice the cover note which

clearly indicates that the policy was valid from 29.5.1996 to 28.5.1997 though it was

issued on 28.5.1996. A copy of the policy was brought on record. Relevant portion

thereof reads as follows:

"Effective date of commencement of insurance for the purpose of the Act,

from 0'clock on (date) 29.5.1996 to midnight of 28.5.1997."

5. A three Judge Bench of this Court in New India Assurance Co. Ltd. v. Sita

Bai (Smt.) and Ors. [(1999) 7 SCC 575) inter alia observed as follows:

"6. The correctness and applicability of the judgment in Ram Dayal case

[(1990) 2 SCC 680] came up for consideration before this Court subsequently in

a number of cases. In New India Assurance Co. v. Bhagwati Devi [(1998) 6

SCC 534] a three-Judge Bench of this Court relied upon the view taken in

National Insurance Co. Ltd. v. Jikubhai Nathuji Dabhi [(1997) 1 SCC 66]

wherein it has been held that if there is a special contract, mentioning in the

policy the time when it was bought, the insurance policy would be operative

from that time and not from the previous midnight as was the case in Ram

Dayal case where no time from which the insurance policy was to become

effective had been mentioned. It was held that should there be no contract to

the contrary, an insurance policy becomes operative from the previous midnight,

when bought during the day following, but in cases where there is a mention of

the specific time for the purchase of the policy, then a special contract comes

into being and the policy becomes effective from the time mentioned in the cover note/the policy itself. The judgment in Jikubhai case has been

subsequently followed in Oriental Insurance Co. Ltd. v. Sunita Rathi [1998) 1

SCC 365] by a three-Judge Bench of this Court also.

6. Since the effect of the aforesaid factual position has not been considered by

the High Court we set aside the impugned judgment and remit the matter for fresh

consideration in accordance with law.

7. The appeal is disposed of.