Deokar Exports Pvt.
Ltd. Vs. New India Assurance Company Ltd.  INSC 1619 (23 September 2008)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5103 OF 2002 Deokar
Exports Pvt. Ltd. .... Appellant Versus New India Assurance Company Ltd.
....Respondent O R D E R R. V. Raveendran J.
appellant imported a De-hydration Machine financed by Maharashtra State Finance
Corporation (for short 'MSFC'). The machine was insured by the appellant with
the respondent (also referred to as the `Insurer') through MSFC, against the
risk of fire for the period 12.9.1986 to 12.3.1988. Long after the expiry of
the policy, on 25.8.1988, MSFC sent a cheque for Rs.3,135/- on behalf of the
appellant for renewal of the policy. A formal stamped receipt was issued by the
insurer confirming the receipt of the cheque on 26.8.1988.
letter dated 7.4.1989, the insurer informed the 2 appellant that it had
received the premium amount from MSFC, but as no proposal had been received from
appellant, it was not in a position to issue the fire insurance policy. The
insurer sent a standard proposal form to the appellant along with the said
letter. The appellant filled and signed proposal form and delivered it to the
insurer on 16.6.1989. In the said proposal, the appellant stated that insurance
cover was required for the period 12.3.1988 to 12.9.1989. But the insurer
issued an insurance policy dated 30.6.1989 extending insurance cover for the
period 26.8.1988 to 25.8.1989. The Insurer sent the insurance policy to MSFC as
required. MSFC did not raise any objection about the period of cover when the
policy was received by it. Nor was the policy renewed beyond 25.8.1989.
10.2.1990, the machine was damaged in a fire accident. On 17.2.1990, the
appellant lodged a claim for Rs.26,91,139/- with the insurer, in regard to the
said damage. The insurer rejected the claim on the ground that there was no
insurance cover on 10.2.1990. Feeling aggrieved, the appellant approached the
National Consumer Disputes Redressal Commission (`Commission' for short)
complaining deficiency in service by the Insurer. The said complaint was
dismissed on 23.9.1992 on the ground that the 3 complaint involved decision on
complex issues of fact and, therefore, the appropriate remedy was by way of
suit. The appellant thereafter filed a civil suit on 29.3.1993 claiming
Rs.26,91,130/-, being the value of the damaged machine, with interest etc. The
appellant submitted that the suit was in time, if the period spent in prosecuting
the claim before the Commission was excluded under section 14 of Limitation
Trial Court by judgment and decree dated 16.9.1999 dismissed the suit. It
upheld the contention of the appellant that the insurance cover could only be
prospective, that is for a period of one year from the date of issue of the
policy; and that as the insurance policy was issued on 30.6.1989, it should be
deemed to have been issued to cover a period of one year commencing from that
date; and that therefore, as on the date of the fire accident - 10.2.1990, the
machine must be deemed to have been insured. However, the trial court dismissed
the suit as barred by limitation. It refused to exclude the time spent in
prosecuting the complaint before the National Consumer Redressal Commission for
purposes of limitation.
the appellant filed an appeal before the Bombay High Court contending that the
finding regarding limitation was erroneous. The insurer filed cross- 4
objections challenging the finding that the insurance was in force on the date
of fire accident. The High Court by its judgment dated 9.3.2001 dismissed the
appeal by the appellant and allowed the cross-objections of the insurer.
The High Court held
the suit was not barred by limitation.
But it held that the
suit was liable to be rejected on merits, as there was no insurance cover on
10.2.1990. It held that the date of insurance policy was immaterial and what
was material was the date of assumption of risk; and as the insurer had assumed
risk with effect from 26.8.1988 for a period of one year upto 25.8.1989, it
cannot be made liable for a fire accident which occurred after the expiry of
the policy. The High Court also noted that when the policy was sent to MSFC,
which was acting on behalf of the appellant, no objection was raised in regard
to the period of insurance cover.
said decision of the High Court is challenged in this appeal by special leave.
The appellant contended that a contract of insurance, unless otherwise mutually
agreed, shall always be prospective in its operation, that is from the date of
issuance of the policy of insurance or cover note. It was submitted that as the
proposal by the appellant required insurance cover for the period 12.3.1988 to
12.9.1989, the insurer could have issued the policy 5 assuming risk from the
required date, that is, 12.3.1988.
If that was not
possible, for whatever reason, the policy should have assumed risk
prospectively from the date of issue of the policy, and not from some
retrospective date chosen by the insurer. It was further submitted that as the
insurer had sent the policy to MSFC, the appellant could not point out the
error relating to the period of insurance cover. The appellant contended that
in the circumstances, the policy should be treated as having been issued
prospectively for one year effective from 30.6.1989; and if so, the machine was
deemed to have been insured on the date of the accident.
the contentions urged, the following questions arise for our consideration :
(i) Where the
insurance company is not able to issue a policy of insurance, for the period
required in the proposal, whether the alternative is only to issue the policy
to be effective prospectively from the date of issue.
(ii) Whether the
insurer was justified in issuing the policy showing the period of insurance
cover as 26.8.1988 to 25.8.1989? (iii) Whether the policy should be treated as
one covering 6 the machine against tie risk during the period 30.6.1989 to
contention and grievance of the appellant is not that the insurance policy
should have covered the risk during the period specified in its proposal. Its
contention is that the policy of insurance ought to have covered the risk for a
period of one year with effect from the date of issue of the policy of
insurance, and not for the period stipulated in the policy, nor for the period
mentioned in its proposal.
64 VB of The Insurance Act, 1938 (`Act' for short) provides that no risk can be
assumed unless premium is received in advance. Sub-sections (1) and (2) of the
said section, relevant for our purpose, are extracted below:
"64-VB. No risk
to be assumed unless premium is received in advance - (1) 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 guaranteed to be paid by such person in such manner and
within such time as may be prescribed or unless and until deposit of such
amount as may be prescribed, is made in advance in the prescribed manner.
(2) For the purposes
of this section, in the case of risks for which premium can be ascertained in
advance, the risk may be assumed not earlier than the date on which the premium
has been paid in cash or by cheque to the inusrer.
Explanation - Where
the premium is tendered by 7 postal money order or cheque sent by post, the
risk may be assumed on the date on which the money order is booked or the
cheque is posted, as the case may be."
Two things emerge from the said section. The first is that the insurer cannot
assume risk unless and until premium is received or guaranteed or deposited.
The second is that a policy issued can assume the risk from a retrospective
date provided such date is not earlier than the date on which premium had been
paid in cash or by cheque to the insurer.
this case, the proposal sent by the appellant was received by the insurer on
16.6.1989. It required that the period of insurance cover should be for the
period 12.3.1988 to 12.9.1989. The reason why the respondent wanted the
insurance cover retrospectively from 12.3.1988 is obvious. The initial
insurance policy expired on 12.3.1988. Under the terms of finance between MSFC
and the appellant, apparently it was necessary to have an uninterrupted and
continuous insurance cover during the period the machine was secured in favour
appellant wanted the insurance cover to be continued by way of renewal for the
period 12.3.1988 to 12.9.1989. But the premium amount for one year was received
by the insurer only on 26.8.1988. Having regard to the bar 8 contained in
Section 64-VB of the Act, the insurer could not accept the request of the
appellant to grant insurance cover with retrospective effect from a date prior
to 26.8.1988 when it received the premium. Therefore, the insurer adopted the
standard, logical and obvious course of issuing the insurance policy with
effect from the date on which it received the premium amount by cheque that is
with effect from 26.8.1988. As the premium paid was for one year and the
standard term of fire policy was one year, the policy was issued assuming risk
for the period 26.8.1988 to 25.8.1989. Non-issue of the policy for the period
commencing from 12.3.1988 required by the appellant, was for a good and valid
reason. There was also nothing illogical or arbitrary about the insurance of a
policy specifying the period of insurance cover as one year effective from the
date of receipt of the premium, that is from 26.8.1988 to 25.8.1989. If the
appellant wanted insurance cover prospectively it should have so specified in
the proposal. Having failed to do so and having sought retrospective cover, the
appellant cannot make a grievance when the insurance cover is issued
retrospectively from the date of receipt of the premium.
aspect which requires to be noticed is that when the policy was sent by the
insurer to MSFC, there was 9 no protest or objection from MSFC that the policy
was issued for a wrong period. Nor did it return the policy to the insurer with
a request to make it prospective from the date of the policy. The appellant did
not choose to examine the policy or cross-check with MSFC about the currency of
the insurance policy or about the need to further renewal of the policy. In
fact, it would appear from the record that MSFC had written on 31.7.1989 to the
appellant that the insurance policy was due to expire in August, 1989. It is,
thus, clear that both the appellant and MSFC were aware of the fact that the
insurance cover under the policy was for the period 26.8.1988 to 25.8.1989 but
neither of them objected to it. Nor was any premium paid for further renewal of
the policy beyond 25.8.1989.
the insurer cannot be made liable for the loss which occurred on account of a
fire accident on 10.2.1990.
policy of insurance is a contract based on an offer (proposal) and an
acceptance. The appellant made a proposal. The respondent accepted the proposal
with a modification. Therefore, it was a counter proposal. The appellant had
three choices. The first was to refuse to accept the counter-proposal, in which
event there would have been no contract. The second was to accept either 10
expressly or impliedly, the counter-proposal of the respondent (that is
respondent's acceptance with modification) which would result in a concluded
contract in terms of the counter proposal. The third was to make a counter
proposal to the counter-proposal of the respondent in which event there would
have been no concluded contract unless the respondent agreed to such
counter-counter- proposal. But the appellant definitely did not have the fourth
choice of propounding a concluded contract with a modification neither proposed
nor agreed to by either party. If the appellant did not agree to the policy
covering the period 26.8.1988 to 25.8.1989 instead of the period 12.3.1988 to
12.9.1989, the result would never create an insurance contract effective from 30.6.1989
or any other date.
contention of the learned counsel for the appellant that an equitable view must
be taken is untenable. In a contract of insurance, rights and obligations are
strictly governed by the policy of insurance. No exception or relaxation can be
made on the ground of equity.
12. We, therefore,
find no reason to interfere with the judgment of the High Court. The appeal is
dismissed with costs quantified at Rs.10,000/-.
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