- (1.) ON 17.11.1992 in a road accident a minor by name Saravanan died. The claimants are the parents of the deceased Saravanan. They filed an application before the Motor Accidents Claims Tribunal, Namakkal, claiming a compensation of Rs .75,000 for the death of the minor. Before the tribunal, the second claimant examined herself as a witness besides one other witness. ON behalf of the respondent one witness was examined. Exs.A-1 to A-4 and B-1 to B-5 were marked. The tribunal found that the accident took place on account of the rash and negligent driving of the vehicle by the driver of a van bearing registration No.TAM 5596. The tribunal has quantified the compensation payable at Rs 70,000 and directed the owner, who was the first respondent and the insurance Company, the second respondent to pay the same to the claimants.
(2.) AGGRIEVED by the said decision, the insurer has now preferred this appeal. Learned Counsel for the appellant did not address any argument questioning the findings of the tribunal with regard to rash and negligent driving of the vehicle or as to the quantum fixed by the tribunal. The only argument that was addressed is that at the time when the accident took place, there was no subsisting policy of insurance and therefore the insurer is not liable. The accident took place on 17.11.1992 and it is said to have taken place at about 9.00 am. According to RW1, on 17.11.1992 after the office of the second respondent was opened, the premium amount was paid by the owner Chandrasekaran. Ex-R-2 is the receipt for the payment of premium. Therefore, it is stated that at the time when the accident took place, there was no insurance coverage and therefore the insurer is not liable. It is not disputed that the vehicle, which was involved in the accident was previously owned by one Vankatachalam, who had insured the vehicle for the period from 28.10.1991 to 27.10.1992. He sold the vehicle to the Chandrasekaran, the third respondent herein and transferred it in his favour with effect from 28.10.91 to 17.11.92. It is only on 17.11.1992 after the insurance company office was opened viz. after 10.00 AM, he had approached the insurance company for insurance of the vehicle and apparently as there was a break in the insurance period, he was issued with the policy which has been produced in the court as marked as Ex-B-2. It reads that it is valid and effective only from 18.11.1992. Perhaps having heard of the accident, the owner had rushed to the insurance company for insuring the vehicle and paid the premium on the same day. This is obvious. Now in that context, it has to be seen whether the insurer can be made liable for the accident that took place on 17.11.92 at about 9.00 am when admittedly there was no insurance coverage. In this connection, it is to be pointed out that the Supreme Court has held in the decision reported in Life Insurance Corporation of India v. Raja Vasireddy Komalavalli Kamba and others, 1984 ACJ 345 as follows:- " The general rule is that the contract of insurance will be concluded only when the party to whom an offer has been made accepts it unconditionally and communicates his acceptance to the person making the offer. Whether the final acceptance is that of the assured or insurer, however, depends simply on the way in which negotiation for insurance have progressed." The Supreme Court has further observed that "mere filling in proposal for insurance and depositing the first premium with the LIC does not create a binding contract unless it had accepted the proposal." Here, admittedly, the proposal has been accepted only on 18.11.92 and therefore the insurance cover will run only from 18.11.92 and it is enforceable only from 18.11.92. The act of the owner of vehicle in rushing to the insurance company on the date of the accident i.e on 17.11.92 filling in the proposal form and paying the premium will not make the insurer liable from 17.4.92. The Supreme Court has also held in the decision reported in National Insurance Co. Ltd., v. Smt. Jijubhai Nathujidabhi and others, 1996 ACC 694 Vol. II as follows:- " In view of the special contract mentioned in the insurance policy, it would be operative from 4.00 PM. on October 25, 1983 and the accident had occured earlier thereto, the insurance coverage would not enable the claimant to seek recovery of the amount from the insurance company." The Supreme Court has also held in the decision reported in New India Assurance Co. v. Ram Dayal, 1990 (2) SCR 570, that in the absence of any specific time mentioned in that behalf, the contrive would be operative from the mid-night of the day of operation as per provisions of the General Clauses Act, but in view of the special contract mentioned in the insurance policy that it would be operative from 4.00 PM, on October, 25, 1983 and as the accident had occurred earlier thereto, the insurance coverage would not enable the claimant to seek recovery of the amount from the insurance company." Here, admittedly, the policy was not renewed in time. The premium was paid only on 17.11.1992. The insurance policy has been issued as from 18.11.92. Therefore, even if the mid-night rule is applied, it would be operative only from the 00.01 am on 18.11.92 and not from 00.01 am on 17.11.92.......... Therefore, as the cover being only for the period from 18.11.92 to 17.11.93,...... the accident having taken place on 17.11.92 morning around 9.00 AM., the insurer cannot be made liable. The judgment of the Tribunal therefore holding that the appellant is liable for the claim cannot be sustained. The policy makes it clear that the effective date is 18.11.92. Hence in such circumstances, the order of the Tribunal holding the insurer liable for the compensation cannot be sustained. In such circumstances, the appeal is allowed setting aside the award passed by the tribunal in so far as it held the appellant liable and leaving untouched the award passed as against the owner. In such circumstances, the parties shall bear their costs. Consequently, CMP No.3155of 1991 is closed. ;