LexBALBIR KAUR & ORS. versus NEW INDIA ASSURANCE COMPANY LTD. & ORS.
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[2009] 6 S.C.R. 327 ... ., BALBIR KAUR & ORS. A v. NEW INDIA ASSURANCE COMPANY LTD. & ORS. (Civil Appeal No.1838 of 2009) APRIL 15, 2009 B [S.B. SINHA AND P. SATHASIVAM, JJ.] -· Constitution of India, 1950 - Article 142 - Fatal accident - Tribunal awarded compensation holding insurer liable - High Court set aside the award opining that accident took c place a day before when policy to take effect, hence insurer was not liable - Meanwhile claimants withdrew the amount deposited by insurer - Held: In view of peculiar facts and circumstances of the case, interest of justice would be subserved if in exercise of discretionary jurisdiction under Article 142 of Constitution, insurer is directed not to recover D .., . . the amount from claimants - Motor Vehicles Act, 1988 - s.166 - Insurance Act, 1948 - s.64VB The deceased was riding on a two wheeler scooter which was hit by a bus. As a result, he died. The Tribunal E awarded compensation of Rs.7.96 lacs to the claimants. High Court allowed the appeal of Insurance Company and set aside the award of tribunal opining that the cover note of the insurance was issued on 15.03.1996 but the ~ same was to take effect from 19.03.1996 and the accident took place on 18.03.1996, the insurer was not liable F therefor. The High Court, in its impugned judgment, directed refund of the said amount to the Insurance . Company. Hence the appeal. A limited notice was issued to this Court, confining ... ..J to the question as to whether in the peculiar facts and G circumstances of the case and, particularly, in view of the fact that the appellants already withdrew the amount deposited by the Insurance Company, this Court can issue a direction to the Insurance Company to recover 327 H 328 SUPREME COURT REPORTS (2009] 6 S.C.R. A the amount from the owner and the driver in the same proceedings. Partly allowing the appeal, the 1Court HELD: 1. Section 64 VB of the Insurance Act, 1938 8 merely provides that no insurer shall assume any risk in India in respect of any insurance business on which premium is not ordinarily payable outside India unless and until the premium payable is received by him or is I guaranteed to be paid by such persons in such manner and within such time as may be prescribed or unless and C until deposit of such amount as may be prescribed, is made in advance in the prescribed manner. [Para 12) [332-A-B] 2. A policy which is issued from a future date must be with the consent of the holder of the policy. The D insurance company cannot issue a policy unilaterally from a future date without the consent of the holder of a policy. Even the circular letter was not produced and/ or no material was placed as to why the policy was issued from a later date. Keeping in view the peculiar facts and E circumstances of the case and in particular having regard to the fact that the appellants have already withdrawn the amount, the interest of justice would be subserved if this Court in-exercise of its discretionary jurisdiction under Article 142 of the Constitution of India direct the insurance company not to recover the amount from the F appellants subject of course to its right of recovery from the owner and the driver of the vehicle. [Paras 13 and 15) [332-C-G] National Insurance Co. Ltd. v. Jikubhai Nathuji Dabhi (SMT) and Ors. (1997) 1 sec 66 and J. Kalaiveni and Ors. G v. K. Sivshankar and Anr. JT (2001) 10 SC 396, referred to. Case Law Reference: (1997) 1 sec 66 referred to H JT (2001) 10 SC 396 referred to Para 10 Para 10 -~ BALBIR KAUR & ORS. v. NEW INDIA ASSURANCE 329 ... COMPANY LTD. & ORS . ~ CIVIL APPELLATE JURISDICTION : Civil Appeal No. A 1838 of 2009. From the Judgment & Order dated 21.03.2007 of the High Court of Delhi in MAC Appl. No. 64 of 2004. Santosh Chaurihaa, Hari Shankar K, Vikas Singh Jangra B and Pramod Kharwar for the Appellant. - Salil Paul (for Manjeet Chawla) for the Respondents. -.j The Judgment of the Court was delivered by 5.8. SINHA, J. 1. Baljit Singh, deceased was riding on a c two-wheeler (scooter) bearing Registration No. DAB 6529. The said scooter was hit by a bus driven by one Ramesh Singh Rawat. He suffered multiple grievous injuries in the said accident. He was taken to Deen Dayal Upadhya, Hospital, New Delhi where he was declared 'brought dead'. D 41( 2. Appellants filed an application before the Motor Accident Claim Tribunal, Deihi (Tribunal)
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