Remanded

The Oriental Insurance Co. Ltd. v. Prabha Kumar ( Died )

Kerala HC12 Feb 2024MACA/2333/2013

Case brief

AI extract

What is this about?

On an appeal against an award under Motor Accident Claims Tribunal, this Court set aside the award to the extent it fixed liability on the insurer for a pillion rider, noting insufficient evidence that the extra loading premium covered such risk. The case was remanded for fresh consideration.

What did the court decide?

The impugned award fixing liability on the insurer is set aside; the original petition is remanded to the Tribunal for fresh consideration and fixation of liability after examining the insurer's autho

The Oriental Insurance Co. Ltd. Vs Prabha Kumar ( Died ) — Insurance | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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MONDAY, THE 12TH DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945

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MACA NO. 2333 OF 2013

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AGAINST THE THE AWARD DATED 20.05.2013 IN O.P(M.V) NO.1363/2005 OF

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MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA

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APPELLANT/2ND RESPONDENT:

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THE ORIENTAL INSURANCE CO. LTD.,
METRO PALACE, GROUND FLOOR, OPP.NORTH RAILWAY STATION,
ERNAKULAM, REPRESENTED BY ITS DULY AUTHORISED OFFICER
BY ADV SRI.VPK.PANICKER

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RESPONDENTS/PETIITOENR, 1ST AND 3RD RESPONDENTS:

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*1PRABHA KUMAR ( DIED )
LEKSHMI NIVAS, VAZHICHAL, KUTTAMALA P.O.,
VELLARADA (VIA), NEYYATTINKARA - 695 505.
2SHEELAKUMARI. S., OLIPPURATH VEEDU, VAZHICHAL P.O.,
NEYYATTINKARA - 695 125.

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3MURALEEDHARAN, GAYATHRI VILASOM PUTHEN VEEDU,
VAZHICHAL, NEYYATTINKARA, THIRUVANANTHAPURAM, NOW
RESIDING AT VAISHNAVA BHAVAN, PEREKONAM, VAZHICHAL,
OTTASEKHARAMANGALAM - 695 125.
4PREMA KUMARI. S., AGED 55 YEARS
W/O. DECEASED PRABHA KUMAR, LEKSHMI NIVAS,
VAZHICHAL, KUTTAMALA P.O., AMBOORI, THIRUVANANTHAPURAM
KERALA-695505.
5LEKSHMI PRABHA
AGED 30 YEARS, D/O. DECEASED PRABHA KUMAR VAZHICHAL,
KUTTAMALA P.O., THIRUVANANTHAPURAM - 695125.
*(THE LEGAL HEIRS OF THE DECEASED 1ST RESPONDENT ARE
IMPLEADED AS ADDITIONAL RESPONDENTS NO.4 AND 5 AS PER
ORDER DATED 6/12/2023 IN IA 1/2023 IN MACA 2333/2013)

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 12.02.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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M.A.C.A.No.2333 of 2013

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JUDGMENT

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Dated this the 12^th day of February, 2024

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The appeal on hand is originated from an award passed by Motor Accident Claims Tribunal, Neyyattinkara (for short ‘the Tribunal’) on 20.05.2013 in O.P.(M.V) No.1363/2005.

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The Tribunal has passed the impugned award whereby a sum of ₹74,560/- was awarded in favour of the claimant before the Tribunal, who is the 1^st respondent herein, as compensation with interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation. 2^nd respondent/insurer was also directed to pay the amount in favour of the claimant in accordance with the directions issued by the Tribunal in the impugned award. Aggrieved thereby, the 2^nd respondent/insurer has approached this Court in the appeal on hand. 1^st

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M.A.C.A.No.2333 of 2013

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respondent died during the pendency of the appeal and therefore his legal representatives were brought on record as additional respondents 4 and 5 vide order dated 06.12.2023 in I.A.No.01/2023.

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The contention of Sri.V.P.K.Panicker, the learned counsel for the appellant was that the Tribunal ought not to have fixed liability on the 2^nd respondent/insurer to indemnify the insured, since the policy marked in evidence as Ext.B1 would clearly indicate that premium was collected only to cover the personal accident risk of the rider of the motorcycle, which is the offending vehicle. According to him, as per Ext.B1 policy, the personal accident risk of the rider alone is covered and not that of the pillion rider. According to him, the Tribunal has overlooked the Schedule appended to Ext.B1 policy and fastened the entire liability on the insurer to indemnify the insured. Accordingly the impugned award was sought to be set

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M.A.C.A.No.2333 of 2013

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aside to the extent liability is fastened on the 2^nd respondent/insurer.

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The respondents though served with notice did

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not turn up.

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The arguments advanced by the learned counsel appear to this Court meritorious. In Paragraph No.12 while answering issue No.4, the Tribunal had elaborate discussion on Ext.B1 policy and found that the insurer is liable to indemnify the insured. The Tribunal has found so on the basis of the Schedule of the policy appended to Ext.B1 where ₹14/- was found collected as extra premium and ₹48/-, collected for covering extra loading. The Tribunal has clarified it as premium collected towards covering the risk of the pillion rider. Eventhough Ext.B1 policy issued was an Act only one,

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the Tribunal has fixed liability on the insurer, on the basis.

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M.A.C.A.No.2333 of 2013

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Going by the Schedule appended to Ext.B1,

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this Court is also doubtful whether ₹48/- collected as premium for extra loading was meant to cover the risk of a pillion rider, who claims compensation before the Tribunal on the basis of the injuries sustained in a motor accident. The insurer failed to adduce any oral evidence before the Tribunal to clarify whether premium of ₹48/collected for extra loading was intended to cover the personal accident risk of a pillion rider. Clarification is required in the matter and the evidence before the Tribunal is highly insufficient on that count.

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In the above circumstances, this Court finds every justification in setting aside the impugned award to the extent it fixes liability on the 2^nd respondent/insurer and to remand the case to the Tribunal for consideration afresh regarding the liability of the insurer. The Tribunal shall permit the 2^nd respondent/insurer to examine it’s authorised officer for

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M.A.C.A.No.2333 of 2013

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clarifying whether ₹48/- collected as premium under ‘extra loading’ covers the personal accident risk of a pillion rider. The impugned award to the extent it fixes liability on the 2^nd respondent is therefore, set aside. The Original Petition No.1363/2005 is remanded to the Tribunal for consideration and fixation of liability afresh. Parties to the Original Petition shall appear before the Tribunal on 06.03.2024. Tribunal shall also permit the respondents to cross examine the authorised officer of the company who would be examined before the Tribunal. At any rate, a fresh award fixing liability shall be passed, within a period of two months from the date on which records relating to this appeal are obtained by the Tribunal.

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Appeal succeeds and is allowed accordingly.

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Sd/-

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MARY JOSEPH JUDGE

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NAB

The Oriental Insurance Co. Ltd. v. Prabha Kumar ( Died )

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Co. Ltd. v. Prabha Kumar ( Died )

Case brief

What is this about?

What did the court decide?

What the court decided

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