M.A.C.A. Nos.3386 of 2014 & 413 of 2015
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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR**
**THURSDAY, THE 25TH DAY OF JULY 2019 / 3RD SRAVANA, 1941**
## **MACA.No.413 OF 2015**
**AGAINST THE AWARD IN OPMV 512/2008 DATED 15-02-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM**
## **APPELLANT/1ST RESPONDENT :**
**A.A. WILLIAMS AGED 46 YEARS S/O.ANTONY, 11/603, AALUKAPARAMBIL HOUSE, OLLUKARA VILLAGE, PATTALAMKUNNU VILLAGE, POST MANNUTHY-6.**
**BY ADV. SRI.G.SREEKUMAR (CHELUR)**
## **RESPONDENTS/PETITIONER & 2ND RESPONDENT :**
**1 SAFRIEN JOY, AGED 29, S/O.PULIKKOTIL JOY, PURANATTUKARA P.O., THRISSUR TALUK, THRISSUR DISTRICT-680 001. 2 UNITED INDIA INSURANCE COMPANAY LTD PARK HOUSE BUILDING, 2ND FLOOR, ROUND NORTH, THRISSUR-680 001.**
**R2 BY ADV. SRI.LAL GEORGE R1 BY ADV. SRI.SHEJI P.ABRAHAM**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.07.2019, ALONG WITH MACA.3386/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
M.A.C.A. Nos.3386 of 2014 & 413 of 2015
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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR**
**THURSDAY, THE 25TH DAY OF JULY 2019 / 3RD SRAVANA, 1941**
## **MACA.No.3386 OF 2014**
**AGAINST THE AWARD IN OPMV 506/2008 DATED 15-02-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM**
## **APPELLANT/1ST RESPONDENT :**
**A.A.WILLIAMS**
**AGED 46 YEARS**
**S/O.ANTONY, 11/603, AALUKAPARAMBIL HOUSE, OLLUKARA VILLAGE, PATTALAMKUNNU VILLAGE, POST MANNUTHY-6.**
**BY ADV. SRI.G.SREEKUMAR (CHELUR)**
## **RESPONDENTS/PETITIONER AND 2ND RESPONDENT :**
- **1 ANEESH, AGED 29, S/O.ANANTHAN, VADAKINETH HOUSE, NELLANKARA DESOM, OLLUKARA VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT-680001.**
- **2 UNITED INDIA INSURANCE COMPANY LTD. PARK HOUSE BUILDING, 2ND FLOOR, ROUND NORTH, THRISSUR-680001.**
**R2 BY ADV. SMT.S.JAYASREE**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.07.2019, ALONG WITH MACA.413/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
M.A.C.A. Nos.3386 of 2014 & 413 of 2015
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## **C.R.**
## **P.B.SURESH KUMAR, J.**
## **-----------------------------------------------**
## **M.A.C.A. Nos.3386 of 2014 & 413 of 2015 ----------------------------------------------Dated 25[th] July, 2019**
## **J U D G M E N T**
The common award passed by the Motor Accidents Claims Tribunal in two claim petitions in respect of the same accident is under challenge in the appeals. The owner-cum-driver of the vehicle involved in the accident is the appellant.
2. The claimants sustained injuries on 15.1.2008 in an accident involving a light motor vehicle owned and driven by the appellant. The claim petitions were preferred alleging that the accident occurred on account of the negligence of the appellant. The appellant remained ex-parte. The insurer of the vehicle contested the claim petitions contending that they have issued only a policy satisfying the requirements of the Motor Vehicles Act for the vehicle; that the policy was issued treating the vehicle as a private car and that they are not liable to indemnify the appellant of the liability arising out of the accident, as the appellant has converted the vehicle as an ambulance. The Tribunal found that the policy issued by the
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insurer for the vehicle is a private car policy and not a policy to be issued for an ambulance. Nevertheless, it directed the insurer to pay the compensation determined as due to the claimants and permitted them to realise the same from the appellant. The appellant is aggrieved by the said decision of the Tribunal and hence these appeals.
3. Heard the learned counsel for the appellant as also the learned counsel for the insurer.
4. The learned counsel for the appellant contended that in so far as the insurer has issued a policy for the vehicle for the period covering the date of accident and in so far as it is not established that the said policy is vitiated in any manner, the Tribunal has acted illegally in permitting the insurer to realise the compensation directed to be paid to the claimants from the appellant.
5. Per contra, the learned counsel for the insurer contended that an ambulance in terms of the provisions of the Motor Vehicles Act, 1988 (the Act) is a transport vehicle and insofar as the policy is one issued treating the said vehicle as a private car with the condition that the same shall not be used for hire or reward, it has to be presumed that the policy was one obtained by the appellant suppressing the fact that the vehicle is an ambulance with a view to save premium. According to the learned counsel, in the circumstances, the policy issued is void and the Tribunal ought not
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have even directed the insurer to pay compensation to the claimants.
6. The registration particulars of the vehicle involved in the accident issued by the Motor Vehicles Department which has been produced by the appellant in the appeal as additional document indicates that the vehicle involved in the accident is one registered and used as an ambulance since 31.12.1996. True, in terms of the provisions of the Act, ambulance is a transport vehicle, though a permit is not required for the same. The policy issued by the insurer for the vehicle, which is part of the records, indicates that the same is one issued on the premise that the vehicle is a private car. As such, it contains a condition also to the effect that the vehicle shall not be used for hire or reward. Such a policy is not one to be issued for an ambulance as the ambulance is ordinarily a vehicle used for hire or reward. The essential question is as to whether the policy was one obtained by the appellant suppressing the fact that the vehicle is one registered and used as an ambulance. If the policy had been one obtained by the appellant suppressing the fact that the vehicle is one registered and used as an ambulance, no doubt, it is void. In terms of Section 149(2) of the Act, the insurer was entitled to raise a contention in a case of this nature that the policy obtained by the appellant is void. No such defence is seen taken by the insurer either in the written statement initially filed by them in the matter or in the additional written statement filed later in the course of the
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proceedings. The insurer has also no case that the policy is one obtained by practising fraud. Instead, the defence taken was that the vehicle is one converted as an ambulance after the issuance of the policy and therefore, there is breach of the terms of the policy. In so far as it is found that the vehicle is one registered and being used as an ambulance since 1996, the contention raised by the insurer that the vehicle is one converted as an ambulance after obtaining the policy in the year 2008, cannot be accepted. If that be so, the only conclusion possible is that the policy is one issued either erroneously or under a _bona fide_ mistake. I take this view also for the reason that for a slightly higher premium, the appellant could have obtained a policy covering the risk of third parties for the ambulance owned by him and there is no reason why a person who takes the trouble of taking a policy for the vehicle owned by him shall not disclose to the insurer the nature of the vehicle for saving the pittance. This court would have had some more light on this point, had the insurer produced the policy proposal which is an integral part of the policy. To a query from the court, the learned counsel for the insurer submitted that despite earnest efforts, the officers of the insurer are unable to lay their hands on the policy proposal due to passage of time. The pointed question is whether, in the absence of any contention on the side of the insurer that the policy is void, the insurer is entitled to avoid the liability under the policy on the ground that the policy is not one to be issued for a
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vehicle like the one owned by the appellant.
7. The provisions in the Act providing for compulsory insurance being provisions introduced as part of social justice doctrine to advance a social object, when a certificate of insurance is issued, the insurer is bound to reimburse the owner. True, there cannot be any doubt to the fact that a contract of insurance must fulfil the statutory requirements of formation of a valid contract, but it is trite by now that in case of a third party risk, the question has to be considered altogether from a different angle. As noted, the policy is one issued by the insurer either erroneously or on account of a _bona fide_ mistake. If that be so, according to me, the insurer is not entitled to avoid the liability as they cannot take advantage of their own erroneous conduct or mistake. In a case of this nature, it can be inferred by necessary implication that the contract between the parties is one for a policy that should have been issued ordinarily for an ambulance. An inference of this nature has been made by the Apex Court in **United India Insurance Company Limited v. Santro Devi**
**and Ors.** [(2009) 1 SCC 558] in the context of a policy issued in the name of a person after his death after receiving premium from the widow. It was held in the said case that the contract of insurance shall be presumed to be one entered into with the wife of the deceased. Paragraph 26 of the judgment in the said case reads thus:
“26. In this case, the statute itself takes care of validity of the contract.
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It is mandatory. Once a valid contract is entered into, only because of a mistake or otherwise, the name of the original owner has not been mentioned in the certificate of registration and/or the documents or hypothecation of the vehicle with the bank had still been continuing in his name, it cannot be said that the contract itself is void unless it was shown that in obtaining the said contract a fraud had been practised. Not only the particulars of fraud had not been pleaded, but even no witness was examined on behalf of the appellant. It cannot, thus, be said that a case of fraud in the matter of entering into the contract of insurance had been made out by the appellant.”
It was also held by the Apex Court in the said case that the doctrine of “acceptance sub silentio” would also enable the court to make a presumption as aforesaid. If the policy issued by the insurer in the instant case is presumed to be one issued for the ambulance, the insurer could not have contended that there is breach of the terms of the said policy. Needless to say that the finding of the Tribunal that the insurer is entitled to realise the compensation from the appellant for breach of the conditions of the policy, is unsustainable.
In the result, the appeals are allowed in part and the direction in the impugned common award permitting the insurer to realise the compensation directed to be paid to the claimants from the appellant is vacated.
## **Sd/-**
**P.B.SURESH KUMAR, JUDGE.**
tgs
M.A.C.A. Nos.3386 of 2014 & 413 of 2015
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