Partly allowed

SBI Genral Insurance Co. Ltd. v. Devan

Kerala HC21 Dec 2018MACA/2240/2018

Case brief

AI extract

What is this about?

Appeals preferred by the insurer against compensation awards by the Motor Accidents Claims Tribunal wherein the insurer denied insurance for the allegedly negligent vehicle, supported by a specific denial in the driver's written statement. The court set aside the awards and remitted the matter.

What did the court decide?

The direction to pay the award amount by the insurer is set aside; matter remitted to the Tribunal for fresh consideration.

SBI Genral Insurance Co. Ltd. Vs Devan — Motor Accident Claims | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.D.RAJAN

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FRIDAY ,THE 21ST DAY OF DECEMBER 2018 / 30TH AGRAHAYANA, 1940

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M.A.C.A.No. 2240 of 2018

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AGAINST THE AWARD IN OPMV 559/2014 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR DATED 05-01-2018

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APPELLANT/3RD RESPONDENT:

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SBI GENRAL INSURANCE CO. LTD., TRADE TOWERS, 3RD FLOOR, KALOOR KADAVANTHARA ROAD - 682 017. REP BY IT'S ASSISTANT MANAGER, SBI GENERAL INSURANCE CO. LTD., HYDERABAD.

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BY ADV. SRI.R.AJITH KUMAR VARMA(128/84)

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RESPONDENTS/CLAIMANT & RESPONDENTS 1& 2:

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1 DEVAN AGED 25 YEARS, S/O. SABARINATH, MANAPURATH HOUSE, THIRUTHIPURAM, MOOTHAKUNNAM, ERNAKULAM PIN - 683 516.

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2 JOSE T.O S/O. OUSEPH, THARAYIL HOUSE, THIRUVALLOOR, KODUNGALUR, THRISSUR - 680 664.

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3 AJAYAKUMAR

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S/O. KUTTAPPAN, VALIYAPARAMBIL HOUSE, MAKKANAI, MANNAM P.O, ERNAKULAM PIN - 683 520(DELETED)(R3 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 21/11/2018 IN IA NO.3/2018 IN MACA NO.2240/2018).

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BY ADV. SRI.A.N.SANTHOSH

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.12.2018, ALONG WITH MACA.2238/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.NoS. 2240/2018 & 2238/2018

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

¶21

THE HONOURABLE MR. JUSTICE P.D.RAJAN

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FRIDAY ,THE 21ST DAY OF DECEMBER 2018 / 30TH AGRAHAYANA, 1940

¶23

M.A.C.A.No. 2238 of 2018

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AGAINST THE AWARD IN OPMV 558/2014 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, NORTH PARAVUR DATED 05-01-2018

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APPELLANT/3 RD RESPONDENT:

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SBI GENERAL INSURANCE CO.LTD.,

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TRADE TOWERS, 3RD FLOOR, KALOOR KADAVANTHARA ROAD - 682 017.REP BY IT'S ASSISTANT MANAGER, SBI GENERAL INSURANCE CO LTD, HYDERABAD.

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BY ADV. SRI.R.AJITH KUMAR VARMA(128/84)

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RESPONDENTS/CLAIMANT & RESPONDENTS 1 & 2:

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1 SABARINATH

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AGED 68 YEARS, S/O. BALAKRISHNAN, MANAPURATH HOUSE, THIRUTHIPURAM, MOOTHAKUNNAM - 683 516.

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2 JOSE T.O S/O.OUSEPH, THARAYIL HOUSE, THIRUVALLOOR, KODUNGALUR, THRISSUR - 680 664.

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3 AJAYAKUMAR

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S/O. KUTTAPPAN, VALIYAPARAMBIL HOUSE, MAKKANAI MANNAM P.O - 683 520(DELETED)(R3 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 21/11/2018 IN IA NO.3/2018 IN MACA NO.2238/2018).

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BY ADV. SRI.A.N.SANTHOSH

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.12.2018, ALONG WITH MACA.2240/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A.NoS. 2240/2018 & 2238/2018

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JUDGMENT

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These appeals are preferred against the award in OP(MV)No.558/2014 and OP(MV)No.559/2014 of Motor Accidents Claims Tribunal North Paravur by the insurer. The claimants in the above appeals sustained injuries in a motor accident on 28-03-2014 at 8.30.am. The petitioner in OP(MV)No.559/2014 was riding a motor cycle KL-7-AU-6538 through the Paravur-Moothakunnam public road, the other claimant was pillion rider, when they reached at the place of occurrence another vehicle KL-47-C-3170 driven in a rash and negligent manner hit against the motor cycle. As a result, the rider and the pillion rider of the motor cycle sustained serious injuries . Immediately they were removed to hospital. The accident was due to the rash and negligent driving of lorry by its driver.

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The accident was not disputed by the respondents in the lower court. The driver and owner were ex-parte. They did not file any written statement. Insurer denied the insurance of the vehicle KL-47-C-3170. Both cases were tried jointly and evidence was recorded in OP(MV)No.558/2014.

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M.A.C.A.NoS. 2240/2018 & 2238/2018

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Petitioners evidence consist of oral testimony of PW1 and documentary evidence were marked as Exts.A1 to A14. The learned counsel appearing for the appellant contended that the offending vehicle was not insured with the appellant and they have no liability to indemnify the owner.

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Advocate A.N. Santhosh appears for the claimants.

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According to Sec.147 of the Motor Vehicles Act, 1988 reads as follows:

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“147. Requirements of policies and limits of liability. - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-

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(a) is issued by a person who is an authorised insurer;

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and

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(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)-

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(i) against any liability which may be incurred by him in respect of the death of or bodily [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

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(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

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provided that a policy shall not be required-

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(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained

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M.A.C.A.NoS. 2240/2018 & 2238/2018

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by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee,-

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(a) engaged in driving the vehicle or

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(b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle, or

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(ii) to cover any contractual liability. Explanation.- For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.

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(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:-

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(a) save as provided in clause (b), the amount of liability incurred;

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(b) in respect of damage to any property of a third party, a limit of rupees six thousand:

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Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.

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M.A.C.A.NoS. 2240/2018 & 2238/2018

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(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.

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(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.

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(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.”

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A perusal of the written statement, it is clear that no insurance was taken by the appellant for the vehicle KL-47/C3170 which was specifically denied in the written statement. Ignoring that contention in the written statement learned Tribunal fast ened liability upon the insurer. There is no appeal or cross objection filed against the award of compensation.

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M.A.C.A.NoS. 2240/2018 & 2238/2018

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Hence the direction to pay the award amount by the insurer is hereby set aside. The matter is remitted to Tribunal for fresh consideration as per law. Both parties are directed to appear before the Tribunal on 26-02-2019. On such appearance, the learned Tribunal shall dispose of the matter within 30 days from their appearance.

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These appeals are disposed of, as above.

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Sd/-

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P.D.RAJAN, JUDGE

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nak

SBI Genral Insurance Co. Ltd. v. Devan

Case brief

What is this about?

What did the court decide?

SBI Genral Insurance Co. Ltd. v. Devan

Case brief

What is this about?

What did the court decide?

What the court decided

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