Allowed

The Oriental Insurance Co. Ltd. v. K.A. Jaison

Kerala HC6 Oct 2023MACA/1184/2012

Case brief

AI extract

What is this about?

The High Court allowed the insurer's appeal against the Motor Accidents Claims Tribunal. The court held that the insurer is entitled to recover the compensation from the registered owner and driver despite the policy violation, as the insured failed to produce the fitness certificate and license after being formally directed to do so.

What did the court decide?

The award of the Motor Accidents Claims Tribunal is modified to hold that the third respondent/insurer is entitled to recover the amount awarded from the registered owner and driver of the vehicle.

The Oriental Insurance Co. Ltd. Vs K.A. Jaison — Contract and Commercial Disputes | Kerala HC (2023)

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MACA NO. 1184 OF 2012

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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 ZIYAD RAHMAN A.A.
FRIDAY, THE 6TH DAY OF OCTOBER 2023 / 14TH ASWINA, 1945

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MACA NO. 1184 OF 2012

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AGAINST THE AWARD DATED 20.01.2012 IN OP(MV)NO.1035/2009 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA

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APPELLANT/3RD RESPONDENT:

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THE ORIENTAL INSURANCE CO. LTD
KANJIRAPPALLY, REPRESENTED BY ITS ASSISTANT MANAGER,
REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18.
BY ADV GEORGE CHERIAN (SR.)

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RESPONDENT/S:

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1 K.A. JAISON S/O.ANTONY, KURIYEDAN HOUSE, EDANADU, CHOWARA P.O, PRASANNAPURAM KARA, CHOWARA VILLAGE, ALUVA, SREEMOOLANAGARAM.

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2 K.P.BENNY S/O.PAULOSE, 3/17, KALLELY HOUSE, CHOWARA P.O, SREEMOOLANAGARAM, ALUVA.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 06.10.2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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MACA NO. 1184 OF 2012

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ZIYAD RAHMAN, A.A, J

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M.A.C.A No. 1184 of 2012

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Dated this the 6th day of October, 2023

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JUDGMENT

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The appellant is the third respondent in

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OP(MV)No.1035/2009, passed by the Motor Accidents Claims Tribunal, Pala. The said claim petition was submitted by the claimants in the claim petition, seeking compensation for the death of one Ouseph Kurian in a motor accident that occurred on 17.02.2009. The accident occurred when the deceased was

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hit by the Mahindra Tipper Lorry bearing Registration No.KL7AZ-7776, while he was walking through the road. The said vehicle was being driven by the first respondent, owned by the second respondent and insured with the appellant herein.

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The third respondent/Insurance Company alone contested the matter. In the written statement, they accepted

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the coverage of policy in respect of the vehicle but contended

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that the vehicle was not covered with the fitness certificate at

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the relevant time and the driver did not have an effective

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MACA NO. 1184 OF 2012

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driving licence and badge. Therefore, they sought exoneration from the liability.

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Evidence in this case consists of Exts.A1 to A6 from

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the side of the appellant, and from the side of the respondent, Ext.B1 policy certificate was marked.

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After considering the materials placed on record, the tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the lorry and the quantum of compensation was fixed as Rs.1,83,000/-. With regard to the contention regarding violation of the policy condition, the Tribunal found that the insurance company failed to establish the said fact, and therefore, they were directed to pay the amount awarded with interest @ 7.5% per annum from the date of the petition till realisation and no right was granted to them to recover the compensation from the registered owner of the vehicle. This appeal is filed by the appellant in such circumstances, challenging the award to the extent that the Tribunal declined the claim for the right of recovery.

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MACA NO. 1184 OF 2012

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Heard Adv.Smt.Latha Susan Cherian, learned counsel

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appearing for the appellant. Even though notices were served on respondents 1 and 2, who are the owners and driver of the

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said vehicle, no one appeared for them

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The only question that arises for consideration is whether the right of recovery is to be granted to the appellant. In this case, it is discernible that the appellant has filed IA No.1165/2011 for a direction to the respondent to produce the driving licence and badge. Similarly, IA No.1173/2011 was also filed for a direction to the respondent to produce the fitness certificate of the vehicle. Even though the Tribunal issued the direction in both the said IAs, neither the driving licence nor the fitness certificate were produced. Despite the same, the Tribunal rejected the contention of the appellant instead of drawing an adverse inference. The only reason for rejection is that in the final report filed by the police, no charge was mentioned regarding the lack of a driving licence or fitness certificate.

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MACA NO. 1184 OF 2012

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After considering the materials placed on record, I am

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of the view that merely because the final report does not

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mention the lack of driving licence or fitness certificate, it cannot be a ground to deny the right of recovery of the insurance coverage. It is a fact that respondents 1 and 2 did not respond to the direction issued by the tribunal to produce

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the same, and therefore, an adverse inference can be drawn against the owner and driver of the vehicle. It is also to be noted that even in this appeal, the said respondents did not enter appearance despite the service of notice. As regards the lack of fitness certificate is concerned, the said position of law is settled by a Five Judges Bench of this Court in Parithpillai Vs

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Oriental Insurance Company (2018 5 KHC 18), wherein it was held that the lack of fitness certificate is a fundamental breach

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and therefore the Insurance Company is entitled for right of recovery.

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In such circumstances, this appeal is allowed, and the

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MACA NO. 1184 OF 2012

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award dated 20.01.2012 passed by the Motor Accidents Claims Tribunal, Pala, in OP(MV)No.1035/2009 is modified by holding that the appellant/third respondent shall be entitled to get the amount awarded by the Tribunal, recovered from the respondents 1 and 2 by executing the very same award.

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The appeal is disposed of with the above observations.

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sd/-

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ZIYAD RAHMAN, A.A, JUDGE

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R.AV

The Oriental Insurance Co. Ltd. v. K.A. Jaison

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Co. Ltd. v. K.A. Jaison

Case brief

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What did the court decide?

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