# The New India Assurance Co v. Murli Manohar Saxena & Anr

- **Citation:** (2023) 6 ILRA 592
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-10
- **Case number:** First Appeal from Order No. 1208 of 1992
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-new-india-assurance-co-v-murli-manohar-saxena-anr-50334
- **Pages:** 10

## Headnote

A. Civil Law-Motor Vehicles Act, 1988Section 173-quantum of compensation-In
the instant case, the insurance policy was
taken at 2.00 p.m. and the accident had
occurred earlier in the day at 10.30 a.m.-
Thus, the principles of law laid down by
the Apex Court in Sunita Rathi and Smt.
Sobina
lakai,
squarely
apply
to
the
insurer's case- The Insurance coverage
would not enable the claimant to seek
recovery of the amount from the appellant
Company-(Para 1 to 23)

B. In this case, the Court held that in
absence of any specific time mentioned
in the policy, the contract would be
operative from midnight of the day by
operations of the provisions of the
General Clauses Act but in view of the
special
contract
mentioned
in
the
insurance policy, the effectiveness of
the policy would start from the time
and date indicated in the policy.(Para
22)

The appeal is allowed. (E-6)

List of Cases cited:

## Text

592 INDIAN LAW REPORTS ALLAHABAD SERIES
there were three dependants though the
deceased was a bachelor.

24. Hence, the total compensation
payable to the appellants and daughters of
the deceased as per the discussion above is
recomputed herein below:

i. Monthly Income : Rs.1200/-

ii. Percentage towards future prospects
: 50% = Rs.600/-

iii. Total income : Rs.1800/-

iv. Income after deduction of 1/3 :
Rs.1800/- - Rs.600/- = Rs.1,200/-

v. Annual income : Rs.1,200/- x 12 =
Rs.14,400/-

vi. Multiplier applicable : 18

vii. Loss of dependency: Rs.14,400/- x
18 = Rs.2,59,200/-

viii. Amount under non-pecuniary
heads : Rs.50,000/- + Rs.30,000/- =
 Rs.80,000/-

ix.
Total
compensation
:
Rs.2,59,200/-
+
Rs.80,000/-
=
Rs.3,39,200/-

25. Learned Tribunal has awarded rate of
interest at 10% per annum. Thus the
compensation of works out to what is granted
but is recalculated on the basis of 9% per
annum looking to the period of litigation. The
additional amount be refunded to Insurance
Company from the fix deposit.

26. This Court granted stay, hence, the
additional amount is to be deposited calculating
amount with 9% rate of interest.

27. In view of the above, the appeal is
partly allowed. Judgment and award passed by
the Tribunal is modified to the aforesaid extent.
The appellant-Insurance Company shall deposit
the entire amount within a period of 12 weeks
from today with interest @ 9% per annum from
the date of filing of the claim petition till the
amount is deposited. The amount already
deposited be deducted from the amount to be
deposited.

28. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of Smt.
Hansagori P. Ladhani vs. The Oriental
Insurance Company Ltd., [2007(2) GLH 291]
and this High Court in total amount of interest,
accrued
on
the
principal
amount
of
compensation is to be apportioned on financial
year to financial year basis and if the interest
payable to claimant for any financial year
exceeds Rs.50,000/-, insurance company/owner
is/are entitled to deduct appropriate amount
under the head of 'Tax Deducted at Source' as
provided u/s 194A (3) (ix) of the Income Tax
Act, 1961 and if the amount of interest does not
exceeds Rs.50,000/- in any financial year,
registry of this Tribunal is directed to allow the
claimants to withdraw the amount without
producing the certificate from the concerned
Income- Tax Authority. The aforesaid view has
been reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal From
Order No.23 of 2001 (Smt. Sudesna and others
Vs. Hari Singh and another) and in First
Appeal From Order No.2871 of 2016 (Tej
Kumari Sharma v. Chola Mandlam M.S.
General Insurance Co. Ltd.) decided on
19.3.2021 while disbursing the amount.
----------
(2023) 6 ILRA 592
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.04.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal from Order No. 1208 of 1992

The New India Assurance Co. ...Appellant
Versus
Murli Manohar Saxena & Anr.
 ...Respondents
6 All. The New India Assurance Co. Vs. Murli Manohar Saxena & Anr.
593
Counsel for the Appellant:
Sri Rajiv Chaddha

Counsel for the Respondents:
Sri N.C. Rajvanshi, SrI Mukesh Kumar Kushwaha

A. Civil Law-Motor Vehicles Act, 1988Section 173-quantum of compensation-In
the instant case, the insurance policy was
taken at 2.00 p.m. and the accident had
occurred earlier in the day at 10.30 a.m.-
Thus, the principles of law laid down by
the Apex Court in Sunita Rathi and Smt.
Sobina
lakai,
squarely
apply
to
the
insurer's case- The Insurance coverage
would not enable the claimant to seek
recovery of the amount from the appellant
Company-(Para 1 to 23)

B. In this case, the Court held that in
absence of any specific time mentioned
in the policy, the contract would be
operative from midnight of the day by
operations of the provisions of the
General Clauses Act but in view of the
special
contract
mentioned
in
the
insurance policy, the effectiveness of
the policy would start from the time
and date indicated in the policy.(Para
22)

The appeal is allowed. (E-6)

List of Cases cited:
1. New India Assr. Co. Ltd. Vs Ram Dayal & ors.
(1990) 2 SCC 680

2. Oriental Ins. Co. Ltd. Vs Sunita Rathi & ors.
(1998) 1 SCC 365

3. NICL Vs Sobina lakai (Smt) & ors. (2007) 7
SCC 786

(Delivered by Hon'ble J.J. Munir, J.)

1. This is an appeal by the Insurance
Company challenging an award of the
Motor Accident Claims Tribunal/ XIth
Additional District Judge, Agra dated
13.10.1992 passed in Motor Accident
Claims Petition No.64 of 1992, allowing
the claim.

2. According to the claimantrespondent No.1, Murli Manohar Saxena
on the 4th of September, 1991 at half past
ten in the morning hours, he was
proceeding from Kamla Nagar to the Civil
Court, Agra, riding pillion on Scooter,
bearing registration No. UTM-8322, driven
by his younger brother, Bhagwanji Saxena.
The Scooter was moving on the left hand
side of the road and had reached the Abbu
Ullah Dargah Bypass Road when suddenly
a Jeep, bearing registration No. UVJ-6096
appeared, driven negligently and at a high
speed. The driver of the Jeep did not sound
any horn and hit the Scooter, that the
claimant-respondent No.1 (for short, 'the
claimant') was riding. In consequence of
the impact, the claimant and his brother fell
down injured. They fainted. The Scooter
was damaged. The claimant's right lower
limb was fractured, and in addition, he
sustained injuries to his brain and eyes,
besides a number of other body parts. The
claimant says that despite treatment, his
right lower limb does not function
normally. The claimant cannot move about
conveniently. He has turned quite a
handicapped man both physically and
mentally. The claimant was an upcoming
lawyer, who had a bright future. However,
on account of the injuries sustained in the
accident,
his
practice
was
adversely
affected.
Accordingly,
the
claimant
demanded a compensation in the sum of
Rs.10 lacs.

3. The Uttar Pradesh State Bridge
Corporation Limited are the owners of the
offending Jeep. They put in a written
statement asserting that the claimant is not
entitled to relief. The Uttar Pradesh State
Bridge Corporation, who are arrayed as
594 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent No.2 to this appeal, shall
hereinafter be called 'the owners'. The
owners in their written statement further on
said that the claimant has incorrectly shown
his monthly income. He has not disclosed
the particulars of the Scooter's insurance
nor impleaded the Scooter's insurers as
parties to the claim petition. According to
the owners, on 04.09.1991, Jeep bearing
registration No. UVJ-6096 was being
driven by their driver Prithvi Singh, who
was proceeding from the owners' office in
Nehru Nagar to their work site at the
Yamuna Bridge. He was driving the vehicle
at a controlled speed. At the Abbu Ullah
Dargah, a scooter, proceeding from the
direction of the Bhagwan Talkies, overtook
the offending Jeep and hit the claimant's
Scooter, causing it to be thrown to the
ground. The rider of the scooter did not
sustain any injury nor was the Scooter
damaged. The rider of the scooter,
however, escaped. In the disarray, the Jeep
driver, in order to save the claimant,
jumped off the road into a kachcha pit by
the roadside and proceeded on. Suddenly, a
Scooter came on from the direction of
Kamla Nagar and collided with the owners'
Jeep. There was no collision, however,
between the offending Jeep and the
Scooter, the claimant was riding. Whatever
compensation the claimant has sought, he is
not entitled to.

4.
The
New
India
Assurance
Company Limited, who are the insurers of
the offending Jeep, were arrayed as
opposite party No.2 to the claim petition.
The said Insurance Company are the
appellants here. They will hereinafter be
referred to as 'the Insurers'. A written
statement was filed on behalf of the
Insurers, denying the allegations in the
claim petition generally. It is the Insurers'
case that at the time of the accident, the
offending Jeep was not insured with the
Insurers. The claim petition is barred by
Section 149 of the Motor Vehicles Act,
1988 (for short, 'the Act'). On 04.09.1991 at
2:00 p.m., a Senior Engineer got the
offending Jeep insured with the Insurers. At
the time the Insurance Policy was taken
out, the fact was suppressed by the owners
that earlier in the day at 10:30 a.m., the
offending Jeep was involved in an accident.
It is pleaded that if the fact of the accident
was within the Insurers' knowledge, they
would never have issued the Insurance
Policy. It is the Insurers' case that the
policy was taken out by the owners playing
fraud upon the Insurers. According to the
Insurers, they are not obliged to indemnify
the owners on the policy held by them.

5. On the pleadings of parties,
following issues were struck (translated
into English from Hindi):

"1.
Whether
the
accident
on
04.09.1991 at 10:30 a.m. happened on
account of the negligence and mistake of
the driver of Jeep, bearing registration No.
UVJ-6096?

2. Whether the accident was not
caused by Jeep, bearing registration No.
UVJ-6096?

3. Whether Jeep No. UVJ-6096 at the
time of the accident was insured with
opposite party No.2, New India Assurance
Company Ltd.?

4. Whether the claimant is entitled to
receive any compensation, if yes, how
much and from whom?"

6. On behalf of the claimant, Mr.
Shailendra
Kulshreshtha,
Advocate
testified as PW-1, who is an eye-witness of
the accident. The claimant, Murli Manohar
Saxena testified as PW-2. On behalf of the
Insurers,
Suresh
Chandra
Goyal,
a
6 All. The New India Assurance Co. Vs. Murli Manohar Saxena & Anr.
595
Development Officer with the Insurers, was
examined as DW-1 and the driver of the
offending
Jeep,
Prithvi
Singh
was
examined as DW-2. Documentary evidence
was also led on both sides, to which
allusion would be made during the course
of this judgment.

7. The Tribunal decided Issues Nos.1
and 2 together. And, rightly so in our
opinion, because both issues are identical
and involve a similar controversy to decide
albeit with some difference. In answering
the two issues, the Tribunal considered the
evidence of PW-1, who had seen the
accident from a distance of about 15 yards.
According to this witness, the offending
Jeep proceeded from the side of the
Bhagwan Talkies, driven at a high speed
and negligently. It attempted to overtake
the ill-fated Scooter. It is in that attempt that
the offending Jeep hit the ill-fated Scooter,
causing the accident. The Tribunal has taken
note of the fact that it is this witness, who
carried the injured to emergency medical aid
and lodged a report at Police Station New
Agra. The Tribunal has taken note of this
witness's testimony, where it is said that he
was accompanied by Mr. Naim Sheikh,
Advocate, who caught the driver of the
offending Jeep on the spot and handed him
over to the Police. It is this witness, who has
proved the FIR in the case. The Tribunal has
noted that PW-1 was cross-examined at
length on behalf of the owners, but the crossexamination does not create any doubt about
the witness's presence at the site of the
accident. PW-2 also supported his claim, the
case of accident involving the offending Jeep
and the injuries sustained in the accident. The
witness does not appear to have been much
discredited in the cross-examination.

8. The Tribunal has then taken note of
the testimony of the two witnesses
produced on behalf of the Insurers. It has
been recorded by the Tribunal that DW-1,
Suresh Chandra Goyal has said in his
testimony that he had insured the offending
Jeep on 04.09.1991 against third party risk.
The insurance was taken out by the Senior
Manager of the owners and it was issued in
the name of the Senior Engineer. A Junior
Engineer in the owners' establishment,
Ashok Varma had come to take out the
Insurance Policy. This witness has said in
his cross-examination that the policy was
taken out at 2 o'clock in the afternoon. He
has also said that the coverage of the risk is
there after the deposit of money on account
of premium due on the policy is accepted.
It has further been said that if the premium
is not deposited, the coverage of risk does
not come into force. The Tribunal has
remarked that this witness (DW-1) has
testified to the fact that the offending Jeep's
insurance was taken out at 2 o'clock in the
afternoon.

9. The Tribunal has considered the
testimony of DW-2, Prithvi Singh, who is
the driver of the offending Jeep. This
witness has been noticed to say that on
04.09.1991 between 10:00 - 10:45, he was
proceeding from the Nehru Nagar Office to
the Water Works Office. As soon as he
reached near the Abbu Ullah Chauraha, a
scooter overtook him at high speed. At that
time, another scooter came from the
opposite direction and collided with the
other scooter. The riders of one of the two
scooters were thrown down. The witness
has said that he stopped his vehicle and
helped the injured board a three wheeler to
ferry them to the hospital. The witness has
said that after he had proceeded across
some distance, he was caught by 7 or 8
Advocates. The witness has been noticed to
say that he requested the Advocates that he
did not cause the accident, but he was
596 INDIAN LAW REPORTS ALLAHABAD SERIES
forced to ride a motorcycle and his vehicle
was parked, where he had been stopped.
The witness has also said that he was
mistreated and got detained at the police
station.

10. The Tribunal has remarked that the
accident did not happen the way DW-2,
Prithvi Singh has described it. It has also
been observed that the witness's version is
not dependable. It has been observed by the
Tribunal that the witness under reference
has said that both scooters were thrown
down and damaged, but he does not give
out the number of the other scooter or its
description. The Tribunal has also recorded
the fact that the witness has acknowledged
in his cross-examination that when the
offending Jeep was got released from the
Police Station, its mudguard was damaged.
The bonnet was depressed and the glass
also damaged. The witness does not say in
his cross-examination that he had made any
report to the Police regarding this damage
to the Jeep caused elsewhere. The Tribunal
has remarked that since no FIR regarding
the damage sustained by the Jeep was
lodged, it is evident that it was this witness,
who was driving the Jeep negligently, and
it is the offending Jeep, which caused the
accident. The issues, therefore, were
answered in the manner that the accident
was caused on account of the rash and
negligent driving by the driver of the
offending Jeep and further that it was the
offending Jeep, that was involved in the
accident.

11. Heard Mr. Rajiv Chaddha, learned
Counsel for the Insurers in support of the
appeal and perused the records. No one
appears for the owners.

12. The learned Counsel for the
Insurers has attempted to assail the findings
of the Tribunal on the two issues aforesaid
saying that the offending Jeep was not
involved in the accident nor the driver
negligent.
Upon
going
through
the
testimony of PW-1, who is not at all an
interested witness, the involvement of the
offending
Jeep
as
also
the
driver's
negligence are evident.

13. The driver has acknowledged that
the offending Jeep had sustained damage to
its mudguard, that was broken. The bonnet
and the wind shield were also broken.
Though, it is said that this was the
condition of the Jeep, when it was released
from the Police Station, but in the absence
of any action taken by the owners, who are
themselves
no
less
a
face
of
the
Government
than
the
Police,
lends
credence to the claimant's case that the
offending Jeep was the one involved in the
accident and the damage mentioned in his
testimony by DW-2, Prithvi Singh, the
driver of the Jeep, is attributable to the very
accident, that caused injury to the claimant.
Also, the fact that the Jeep and the driver
were apprehended on the spot and the Jeep
later on released from the Police Station,
are
assurance
enough
about
the
involvement of the Jeep. The Tribunal's
findings on Issues Nos.1 and 2 cannot be
faulted. Those findings are, accordingly,
upheld.

14. The Insurers assail the findings of
the Tribunal recorded on Issue No.3. It is
argued with much vehemence on behalf of
the Insurers that the Tribunal has erred in
holding that the Insurers are liable, because
they did not get the Insurance Policy
cancelled, a course of action they should
have followed if it was their case that the
policy was taken out at 2:00 p.m. on
04.09.1991, after the accident had already
happened earlier in the day at 10:30 a.m. It
6 All. The New India Assurance Co. Vs. Murli Manohar Saxena & Anr.
597
is submitted on behalf of the Insurers that
the policy was obtained by the owners
practicing fraud on the Insurers and the
policy is, therefore, void. The Insurers say
that they are not liable to satisfy the award.

15. Upon a perusal of the records, this
Court finds that the original cover note
issued by the Insurers dated 04.09.1991 is
on record as paper No. 44-Ga. Besides that,
there are photostat copies of the cover
note also on record as paper Nos. 39-Ga
and 46-Ga and another photostat copy,
paper No. 5-Ga. The cover note, that has
been filed on record and marked as paper
No. 44-Ga, clearly mentions the time of
issue as 2:00 p.m. on 04.09.1991,
whereas the photostat copy bearing paper
No. 46-Ga does not mention any time.
Again, the photostat copy, bearing paper
No. 5-Ga, does not mention the time of
issue,
whereas
the
photostat
copy,
bearing paper No. 39-Ga mentions the
time of issue as 2:00 p.m.

16. Going by the principles of
admissibility of documentary evidence, the
original alone is admissible and there is no
reason to look into secondary evidence
when the primary evidence is there. The
photostat copies, numbering two, that do
not mention the time of issue of the cover
note, could possibly have been used to
discredit the genuineness of the document
while
cross-examining
DW-1,
Suresh
Chandra Goyal, but Suresh Chandra Goyal
in his cross-examination has stood firm by
the fact that the cover note was issued by
him on behalf of the Insurers on 04.09.1991
at 2:00 p.m. He took the said stand in his
examination-in-chief, where he has said:

"सशपथ ब्यान भकया भक मैं न्यू इंभडया इस्योरेंस कम्पनी
OP No.2 में भवकास अभधकारी ह ूँ और बीमा करता ह ूँ।
भदनांक 4.9.91 को दोपहर 2 बजे जीप नम्बर UVJ 6096
का बीमा केवल Third Party Risk के भलए सीभनयर
इंजीभनयर यू पी स्टेट बृज कारपोरेशन के नाम से भकया था। बीमा
कराने J.E. अशोक वमाथ व एक बाबू चौहान कम्पनी के ब्रांच
आभर्स महात्मा गांधी रोड आगरा पर आये थे और उन्होंने जीप
का बीमा करने को कहा था। 4.9.91 से पहले यह गाड़ी न्यू
इंभडया में इन्सोडथ नहीं रही। 4.9.91 का बीमा First बीमा था।
ररनूअल नहीं था। भपछले बीमा का कोई कागज नहीं भदखाया था।
यह लोग गाड़ी लेकर नहीं आए थे। इनके द्वारा यह नहीं बताया
गया था 4.9.91 को सुबह 10.30 बजे इस जीप से कोई
दुघथटना हुई है।"

17. This witness when crossexamined on behalf of the owners stood
firm by his stand that the cover note was
issued by him at 2:00 p.m. on 04.09.1991.
DW-1
has
stated
in
his
crossexamination, at the instance of the
owners, thus:

"एक समय में कवर नोट का असल सभहत चार कापी
बनती है। एक Original Party के पास चली जाती है बाकी
आभर्स में रहती है। कवर नोट पर मेरे ही दसखत हैं भकसी अन्य
अभधकारी के नहीं होती। चारो काभपयों पर समय एक सा है।
बकाया भक दो कापी आभर्स में है जीप नम्बर UVJ 6096
का बीमा मैंने भकया था। यह मैंने 4.9.91 को दोपहर दो बजे
भकया था। मैंने यह नहीं कहा भक बीमा दो बजे के बाद भकया था।
दाभखलशुदा कवर नोट के अलावा मैं अन्य ररकाडथ इसभलए नहीं
लाया भक मुझे बताया नहीं गया था। बीमा के समय जीप उपलब्ध
नहीं थी व जीप मैंने नहीं देखी। Third Party बीमा पाटी के
भवश्वास पर भबना वाहन देखे भकया जाता है। असल कवर नोट व
काबथन कापी एक ही समय एक ही Process में भलखी व
दसखती है। असल व काबथन कापी में भिन्नता नहीं है। यह कहना
गलत है भक दुघथटना के समय जीप बीभमत हुई है। यह िी कहना
गलत है भक दाभखलशुदा काबथन कापी में समय बढ़ा भदया गया
हो।"

18. This Court finds that the original
cover note, bearing paper No. 44-Ga has
been filed through a list of documents,
bearing paper No. 41-Ga by Mr. Rama
Kant Dixit, Advocate, Civil Court, Agra.
This Court finds from a perusal of paper
No. 45-Ga, which is a letter dated
598 INDIAN LAW REPORTS ALLAHABAD SERIES
28.05.1992, addressed by the Deputy
Project Manager of the owners to Mr.
Rama Kant Dixit, Advocate that Mr. Dixit
was the owners' Counsel. Thus, it is
apparent that the original cover note,
bearing paper No. 44-Ga was filed on
behalf of the owners, from whose custody
it should have logically come. DW-1,
Development Officer of the Insurers, has
already said in his cross-examination that
the original cover note was issued to the
owners, which otherwise too is obvious.
Therefore, the cover note, being filed by
the learned Counsel for the owners, is a
document, produced from custody of the
party, with whom it should have been. The
cover note clearly indicates that it was
issued on 04.09.1991 at 2:00 p.m. At the
same time, the author of the cover note,
who issued it on behalf of the Insurers, has
said that it was not a case of renewal,
where the Insurers were renewing an
existing policy of theirs. He had issued a
fresh cover note, without examining the
vehicle, which this Court must say, he
ought not have done, trusting the onwers. It
must be remarked that the Insurers' official
should never have issued a cover note,
which was a fresh proposal, without
examining the vehicle, that does not appear
to be a new vehicle. The reference to the
trust reposed in the owners, for whatever
worth it might be, can only be salvaged for
the Insurers by the fact that the owners
were a Government Corporation, and it was
not expected that they would indulge in
practice of fraud or tell falsehood to the
Insurers. Unfortunately, in this case the
way the evidence has turned out, the
officials of the owners, a State Corporation,
have practiced apparent fraud on the
Insurers, by deliberately not disclosing the
fact that the vehicle they proposed to be
insured, had met with an accident earlier in
the day. Therefore, it must be held that the
cover note, on which the owners rely, was
issued on 04.09.1991 at 2:00 p.m. Thus,
there was no proposal for the Insurers to
insure the offending Jeep on 04.09.1991,
prior to 2:00 p.m. of that day. The accident
happened at 10:30 a.m. on 04.09.1991. At
that time, there was no cover note issued by
the Insurers.

19. There is no case on behalf of the
owners that the Jeep was insured under a
policy of insurance by some other Insurer
that was expiring on 04.09.1991. Thus, the
inference is that until the cover note was
issued by the Insurers at 2:00 p.m. on
04.09.1991, there was no insurance cover
for the offending Jeep.

20. An issue arises whether a policy
issued on a particular day would cover the
risk for that day commencing the previous
midnight, or what would be the time when
the cover note purchased on a particular
day becomes effective pending issue of a
policy. The question fell for consideration
of the Supreme Court in New India
Assurance Co. Ltd. v. Ram Dayal and
others, (1990) 2 SCC 680, where it was
held:

"2. The insurer repudiated its liability
by maintaining that the policy had been
taken after the accident and, therefore, it
had no liability to meet the award of
compensation against the owner. The
Tribunal accepted this stand and rejected
the claim against the insurer. In appeal, the
High Court took the view relying upon
certain decisions that the insurance policy
obtained on the date of the accident became
operative from the commencement of the
date of insurance - i.e. from the previous
midnight and since the accident took place
on the date of the policy the insurer became
liable.
6 All. The New India Assurance Co. Vs. Murli Manohar Saxena & Anr.
599

3. Apart from the judgment under
appeal, we find that this view is supported
by two judgments of the Madras High
Court and an earlier decision of the Punjab
and Haryana High Court. Two Division
Benches of the Madras High Court have
taken the view after discussing the law at
length that the policy taken during any part
of the day becomes operative from the
commencement of that day. Besides these
judgments a Division Bench decision of the
Allahabad High Court in Jaddoo Singh v.
Malti Devi [AIR 1983 All 87] supports this
view on principle.

4. There is evidence in this case that
the vehicle was insured earlier up to August
31, 1984 and the same was available to be
renewed but instead of obtaining renewal, a
fresh insurance was taken from September
28, 1984, which is the date of the accident.
We are inclined to agree with the view
indicated in these decisions that when a
policy is taken on a particular date, its
effectiveness is from the commencement of
the date and, therefore, the High Court, in
our opinion, was right in holding that the
insurer was liable in terms of the Act to
meet the liability of the owner under the
award."

21. The decision in Ram Dayal
(supra) was distinguished in Oriental
Insurance Co. Ltd. v. Sunita Rathi and
others, (1998) 1 SCC 365 on principle,
depending
on
the
fact
that
the
commencement of the liability of the
insurer would be different, where just the
date of the issue of the insurance policy or
the cover note was mentioned and a cover
note where the date and time of the issue of
the insurance policy or the cover note was
also mentioned. In Sunita Rathi (supra),
which is a three Judge Bench decision of
their Lordships of the Supreme Court, it
was held:

"2. The motor accident occurred on
10-12-1991 at 2.20 p.m. It was only
thereafter the same day at 2.55 p.m. that the
insurance policy and the cover note were
obtained by the insured, owner of the motor
vehicle involved in the accident. There is
express mention in the cover note that the
effective date and time of commencement
of the insurance for the purpose of the Act
was
10-12-1991
at
2.55
p.m.
The
applicability of the decision in Ram Dayal
case [(1990) 2 SCC 680 : 1990 SCC (Cri)
432 : (1990) 2 SCR 570] has to be
considered on these facts. In our opinion
the decision in Ram Dayal case [(1990) 2
SCC 680 : 1990 SCC (Cri) 432 : (1990) 2
SCR 570] is distinguishable and has no
application to the facts of this case. The
facts of that decision show that the time of
issuance of the policy was not mentioned
therein and the question, therefore, was of
presumption when the date alone was
mentioned and not the time at which the
insurance was to become effective on that
date. In such a situation, it was held in Ram
Dayal case [(1990) 2 SCC 680 : 1990 SCC
(Cri) 432 : (1990) 2 SCR 570] that in the
absence of any specific time being
mentioned, the logical inference to draw
was that the insurance became effective
from the previous midnight and, therefore,
for an accident which took place on the
date of the policy, the insurer became
liable. There is no such difficulty in the
present case in view of the clear finding
based on undisputed facts that the accident
occurred at 2.20 p.m. and the cover note
was obtained only thereafter at 2.55 p.m. in
which it was expressly mentioned that the
effective date and time of commencement
of the insurance for the purpose of the Act
was 10-12-1991 at 2.55 p.m. The reliance
on Ram Dayal case [(1990) 2 SCC 680 :
1990 SCC (Cri) 432 : (1990) 2 SCR 570]
by the Tribunal and the High Court was,
600 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, misplaced. We find that in a
similar situation, the same view which we
have taken, was also the view in National
Insurance Co. Ltd. v. Jikubhai Nathuji
Dabhi [(1997) 1 SCC 66 : (1996) 8 Scale
695] wherein Ram Dayal case [(1990) 2
SCC 680 : 1990 SCC (Cri) 432 : (1990) 2
SCR 570] was distinguished on the same
basis."

(emphasis by Court)

22. The issue again came up for
consideration before the Supreme Court in
National Insurance Co. Ltd. v. Sobina
Iakai (Smt.) and others, (2007) 7 SCC
786. In Smt. Sobina Iakai (supra), it was
held:

"14. This Court had an occasion to
examine the similar controversy in New
India Assurance Co. Ltd. v. Ram Dayal
[(1990) 2 SCC 680 : 1990 SCC (Cri) 432 :
(1990) 2 SCR 570] . In this case, this Court
held that in absence of any specific time
mentioned in the policy, the contract would
be operative from the midnight of the day
by operations of the provisions of the
General Clauses Act but in view of the
special contract mentioned in the insurance
policy, the effectiveness of the policy
would start from the time and date
indicated in the policy.

15. A three-Judge Bench of this Court
in National Insurance Co. Ltd. v. Jikubhai
Nathuji Dabhi [(1997) 1 SCC 66] has held
that in the absence of any specific time
mentioned in that behalf, the contract
would be operative from the midnight of
the day by operation of provisions of the
General Clauses Act. But in view of the
special contract mentioned in the insurance
policy, it would be operative from the time
and date the insurance policy was taken. In
that case, the insurance policy was taken at
4.00 p.m. on 25-10-1983 and the accident
had occurred earlier thereto. This Court
held (at SCC p. 67, para 3) that "the
insurance coverage would not enable the
claimant to seek recovery of the amount
from the appellant Company".

16. Another three-Judge Bench of this
Court in Oriental Insurance Co. Ltd. v.
Sunita Rathi [(1998) 1 SCC 365] dealt with
similar facts. In this case, the accident
occurred at 2.20 p.m. and the cover note
was obtained only thereafter at 2.55 p.m.
The Court observed that the policy would
be effective from the time and date
mentioned in the policy.

17. In New India Assurance Co. v.
Bhagwati Devi [(1998) 6 SCC 534] this
Court observed that, in absence of any
specific time and date, the insurance policy
becomes operative from the previous
midnight. But when the specific time and
date is mentioned, then the insurance policy
becomes effective from that point of time.
This Court in New India Assurance Co.
Ltd. v. Sita Bai [(1999) 7 SCC 575 : 1999
SCC (Cri) 1322] and National Insurance
Co. Ltd. v. Chinto Devi [(2000) 7 SCC 50 :
2000 SCC (Cri) 1272] has taken the same
view.

18. In J. Kalaivani v. K. Sivashankar
[(2007) 7 SCC 792 : JT (2001) 10 SC 396]
this Court has reiterated clear enunciation
of law. The Court observed that it is the
obligation of the court to look into the
contract of insurance to discern whether
any particular time has been specified for
commencement or expiry of the policy. A
very large number of cases have come to
our notice where insurance policies are
taken immediately after the accidents to get
compensation in a clandestine manner.

19. In order to curb this widespread
mischief of getting insurance policies after
the accidents, it is absolutely imperative to
clearly hold that the effectiveness of the
insurance policy would start from the time
6 All. Aarav Shukla & Anr. Vs. State of U.P. & Ors.
601
and date specifically incorporated in the
policy and not from an earlier point of
time."

 (emphasis by Court)

23. In view of the findings of this
Court that the policy was issued in fact
at 2:00 p.m. on 04.09.1991 and the
accident happened at 10:30 a.m., earlier
in the day, the principles of law laid
down by the Supreme Court in Sunita
Rathi and Smt. Sobina Iakai, squarely
apply to the Insurers' case. In the
opinion of this Court, therefore, the
liability to satisfy the award would go to
the owners and the insurers have to be
relieved.

24. In the result, this appeal succeeds
and is allowed. The impugned judgment
and award dated 13.10.1992 passed by the
Motor
Accident
Claims
Tribunal
is
modified and it is ordered that the award
shall be satisfied by the owners and not the
Insurers. The Insurers shall be entitled to
costs in the sum of Rs.10,000/- recoverable
from the owners.
----------
(2023) 6 ILRA 601
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Habeas Corpus No. 43 of 2020

Aarav Shukla & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Upendra Singh, Sri Nitin Chopra, Sri Prakhar
Saran Srivastava, Sri Suvarna Singh, Sri Tarun
Agarwal, Ms. Rosemarry Raju
Counsel for the Respondents:
G.A., Sri Ashish Deep Verma

The Constitution of India, 1950-Article226- WRIT of Habeas Corpus- Doctrine
of intimate and closest concern are of
persuasive relevance only when the
child has uprooted from its native
country
and
taking
to
a
place
to
encounter alien environment, language,
customs and surroundings etc.,which
may have substantial bearing on the
process of his over all growth and
grooming. As the child was very tender
age it cannot be supposed that he was
segregated
from
social
customs
prevalent to U.S.A. to which he has been
accustomed. He did not receive any
schooling, education or care of any
daycare institution in U.S.. On the
contrary minor child is under due care of
his mother and maternal grand parents
and other relatives of maternal side
since his arrival in Noida (India). There
is no consent order with regard to
custody of child by U.S court or any
competent authority in U.S. even after
alleged order dated 24.12.2020 which
was passed by U.S. court with regard to
custody of child long after his departure
from U.S-No compelling reason to direct
return of minor child to U.S., nor his stay
in the company of his mother along with
maternal grand parents at Greater Noida
is prejudicial to his interest in any
manner warranting his return to U.S -
Issue of custody of child ought not to be
on the basis of rights of parties claiming
custody of minor child but to focus
should stand on whether the factum of
best
interest
of
the
minor
childVisitation rights to father are admissible
so that he may have access to minor
child whenever he would visit India.
(Para 33 & 34) (E-15)

List of Cases cited:

1. Tejaswini Gaud & ors.Vs Shekhar Jagdish
Prasad Tewari & ors., (2019) 7 SCC 42

2. Yashita Sahu VS St. of Rajasthan & ors.,
(2020) 3 SCC 67