Dismissed

The New India Assurance Co. Ltd., v. Chandrika and Others

Kerala HC10 Oct 2018MACA/2971/2008

Case brief

AI extract

What is this about?

This is a Motor Accident Claims Appeal against a MACT award granting compensation for a death caused by a tractor accident. The Court held that since notice to one respondent could not be completed due to his having left India, the appeal was not a fit case for deciding on merits and dismissed it without deciding the insurance coverage dispute.

What did the court decide?

The C.M. Application as well as the appeal stand dismissed without deciding the merits.

The New India Assurance Co. Ltd., Vs Chandrika and Others — Insurance | 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.R.RAMACHANDRA MENON

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WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940

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MACA.No. 2971 of 2008

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C.M. APPLICATION No.3024 of 2008

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AGAINST THE AWARD IN OPMV 3242/2001 OF MACT,THRISSUR DATED 31-05-2008

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APPELLANTS/3RD RESPONDENT:

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THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, PALACE ROAD,, THRISSUR, REPRESENTED BY ITS MANAGER.

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BY ADV. SRI.A.A.ZIYAD RAHMAN

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RESPONDENT/ PETITIONERS & RESPONDENTS 1 AND 2 :

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1 CHANDRIKA, W/O. LATE VELAYUDHAN THERAYANCODE COLONY,, P.O. KUNDALASSERY, KERALASSERY PANCHAYATH,, PALAKKAD DISTRICT

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2 BABU D/O. CHANDRIKA THERAYANCODE COLONY,, P.O. KUNDALASSERY, KERALASSERY PANCHAYATH,, PALAKKAD DISTRICT

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3 VINEESH MINOR AGED 17 YEARS S/O.CHANDRIKA,THERAYANCODE COLONY,, KUNDALASSERY.P.O,KERALASSERY PANCHAYATH,PALAKKAD, REP.BY GUARDIAN & MOTHER CHANDRIKA,, W/O.LATE VELAYUDHAN, THERAYANCODE COLONY,P.O. KUNDALASSERY, KERALASSERY PANCHAYATH,, PALAKKAD DISTRICT

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MACA.No. 2971 of 2008

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4 RAKKAMMA W/O. LATE CHAMI, THERAYANCODE COLONY,, P.O. KUNDALASSERY, KERALASSERY PANCHAYATH,, PALAKKAD DISTRICT.

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5 P.S. ABDUL KABEER S/O. SAIDALI, POOKATTUKUNNATH HOUSE,, P.O. PERUR, OTTAPPALAM.

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6 KUMARAN S/O. VELLA THERAYAMCODE HOUSE,, KUNDALASSERY, PALAKKAD. BY ADVS. SRI.K.P.BALAGOPAL SRI.P.V.CHANDRA MOHAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.No. 2971 of 2008

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JUDGMENT

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The death of a person aged 33 years, pursuant to

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the fatal injuries sustained on falling down from the Tractor in which he was travelling, was sought to be compensated by filing a claim petition by the legal heirs. The claim was sought to be resisted by the Insurance Company who had issued the policy in respect of the tractor, disputing negligence on the part of the

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driver of the tractor, quantum and also the version that the deceased was accompanying his goods at the time of the accident. It was also specifically contented in paragraph 4 of the written statement that the policy did not cover the risk of the person like the deceased.

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Based on the evidence adduced, both oral and

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documentary, a finding was rendered to the effect that the accident was due to negligence on the part of the driver of the tractor. Compensation was awarded under different heads, granting a total sum of Rs.3,47,750/-, which was directed to be satisfied by the appellant

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MACA.No. 2971 of 2008

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Insurance Company, holding that the deceased was

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accompanying the goods carried in the vehicle and hence was entitled to have coverage.

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The grievance of the appellant is that no such

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coverage is envisaged either in the statute or in the Policy and that a wrong finding was rendered by the Tribunal. Right of recovery is liable to be given to the appellant, contends the appellant.

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The appeal was belated for 46 days, which is

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sought to be condoned by filing C.M. Application No.3024 of 2008, wherein notice was ordered on 08.01.2009.

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Notice sent to the 5^th respondent/owner was

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returned 'unserved' with the endorsement that he had left India, as noted in the proceedings sheet on 07.12.2009, which made the appellant to file I.A. 3605 of 2009 for serving notice to the 5^th respondent by

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substituted service by way of affixture in the last known address. But the fact remains that since notice

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to the 5^th respondent was returned as left India, service of notice upon him could not have been

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MACA.No. 2971 of 2008

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completed by way of affixture, as sought for in

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I.A.3605 of 2009.

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It has come to the notice of this Court that

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almost a similar issue was considered by the Apex Court

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and as per the ruling in Shivawwa and another vs. Branch Manager, National India Insurance Co.Ltd and

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another [ 2018 (5) SCC 762] , coverage under such circumstances has been upheld. This Court does not intend to proceed with the merit of the case in this

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regard, in view of the fact that service of notice to the 5^th respondent is still to be completed, despite pendency of this matter for nearly 10 years. It is not a fit case where interference is to be made to unsettle

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the balance. The C.M.Application as well as the appeal stand dismissed.

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Sd/- P.R. RAMACHANDRA MENON, JUDGE

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The New India Assurance Co. Ltd., v. Chandrika and Others

Case brief

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The New India Assurance Co. Ltd., v. Chandrika and Others

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