Allowed

The New India Assurance Company Limited v. Sunil

Kerala HC9 Oct 2023MACA/906/2012

Case brief

AI extract

What is this about?

The High Court allowed the insurer's appeal regarding a motor accident compensation award. The Court held that the insurer is entitled to recover the payout from the insured due to a fundamental breach caused by the lack of a valid vehicle permit.

What did the court decide?

Award modified to allow appellant/3rd respondent to recover compensation from respondent/2nd respondent.

The New India Assurance Company Limited Vs Sunil — Motor Accident Claims | Kerala HC (2023)

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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.

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MONDAY, THE 9TH DAY OF OCTOBER 2023 / 17TH ASWINA, 1945

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MACA NO. 906 OF 2012

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AGAINST THE AWARD DATED 14.10.2011 IN OP(MV)223/2006 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR

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APPELLANT/3RD RESPONDENT:

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THE NEW INDIA ASSURANCE COMPANY LIMITED
TRIPUNITHURA NOW REPRESENTED BY ITS MANAGER,
REGIONAL OFFICE, M.G.ROAD, KOCHI-11.

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BY ADVS.
SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW

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RESPONDENT/2ND RESPONDENT:

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SUNIL

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S/O.VARKEY, KADATHINGAL HOUSE, KANNAN KULANGARA,
TRIPUNITHURA, PIN-682 032 (NO RELIEFS ARE CLAIMED
AGAINST THE PETITIONER AND THE IST RESPONDENT IN THE
ABOVE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE
PARTIES IN THIS APPEAL).

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 09.10.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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MACA NO. 906 OF 2012

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JUDGMENT

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The appellant is the 3^rd respondent in O.P.(M.V.) No.223/2006

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on the files of the Motor Accident Claims Tribunal, North Paravur.

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The said claim petition was submitted by the claimant

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seeking compensation for the injuries sustained to him in a motor accident that occurred on 14.12.2005. The accident occurred when the claimant was travelling on a motorcycle, it was hit by a mini lorry bearing Registration No.KL 6 A 6895, which was driven by the 1^st respondent in the claim petition. The said vehicle was owned by the respondent herein and was insured with the appellant. Consequent to the accident, the claimant sustained serious injuries and seeking compensation of Rs.3,00,000/- the said claim petition was submitted.

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The owner and driver of the vehicle remained ex parte, and the appellant filed a written statement admitting the existence of a policy in respect of the said vehicle. However, while disputing the quantum of compensation, they also raised a contention that the vehicle was a transport vehicle and did not have a valid permit, and

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MACA NO. 906 OF 2012

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3

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therefore, they sought exoneration from the liability. They also submitted I.A. No.2176/2008 for directing the respondent herein to produce the permit for the relevant time, but even though such a direction was issued, the permit was not produced.

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The evidence in this case consists of oral evidence of

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PW1 and Exts.A1 to A10 from the side of the claimant. From the side of the respondents in the claim petition, Exts.B1 to B3 were marked. After examining the materials placed on record, the Tribunal found that the accident occurred due to the negligence of the driver of the mini lorry. The contention raised by the appellant Insurance Company regarding the violation of policy condition was rejected on the ground that they did not take any steps under Rules 376 of Kerala Motor Vehicle Rules to furnish the details of the vehicle.

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The quantum of compensation was fixed as

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Rs.1,50,475/- and the appellant was directed to deposit the said amount with interest @7.5% per annum.

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The appellant has already satisfied the said award, and

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MACA NO. 906 OF 2012

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4

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this appeal is submitted, challenging the award to the extent that the right of recovery was denied by the Tribunal in the award.

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Heard Sri.Mathews Jacob, the learned senior counsel

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appearing for the appellant. Even though notices were served on the respondent, there is no appearance.

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The only question that arises is whether the right of recovery can be granted to the appellant for the violation of conditions. The Tribunal rejected the said contention on the sole ground that the appellant did not comply with the obligations under Rule 376 of Kerala Motor Vehicles Rules. However, a reading of Rule 376 would indicate that the same does not contain any stipulations with respect to the details of the permit. On the other hand, it is discernible from the records that the Insurance Company had already filed an interlocutory application for a direction to the respondent herein to produce the permit at the material time. Despite the service of notice on the said application, the permit was not produced. In such circumstances, the Tribunal ought to have drawn adverse inference against the respondent herein.

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MACA NO. 906 OF 2012

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5

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As regards the contention of the appellant, with regard

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to the breach of policy condition consequent to lack of permit for the said vehicle, the said question is already decided by the Hon’ble

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Supreme Court in Amrit Paul Singh v. Tata AIG General Insurance Company Co.Ltd. [2018 (3) KLT 911]. In the said decision, it was held that the existence of a permit of any nature is a matter of documentary evidence and has to be brought on record by the insured of the said vehicle. Therefore, the absence of a valid permit is a fundamental breach, which would enable the Insurance Company to get the right of recovery from the insured after satisfaction of the award. In the light of the settled position of law, I am of the view that the appellant is entitled to succeed in this appeal.

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Accordingly, this appeal is allowed by modifying the award dated 14.10.2011 in O.P.(M.V.) No.223/2006 passed by the Motor Accident Claims Tribunal, North Paravur, by holding that the appellant/3^rd respondent shall be entitled to recover the amount of compensation from the respondent/2^nd respondent, if the award is

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MACA NO. 906 OF 2012

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already satisfied by the appellant.

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With the above finding, this appeal is disposed of.

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Sd/-
ZIYAD RAHMAN A.A.
JUDGE

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scs

The New India Assurance Company Limited v. Sunil

Case brief

What is this about?

What did the court decide?

The New India Assurance Company Limited v. Sunil

Case brief

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