A.K. SASI v. Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 17TH DAY OF OCTOBER 2017/25TH ASWINA, 1939** **MACA.No. 21 of 2013 ()** **-----------------------** **AGAINST THE AWARD IN OPMV 957/2006 of MACT MUVATTUPUZHA DATED 02-08-2011** **APPELLANT(S)/1ST RESPONDENT IN OP(MV):** **-----------------------------------------------** **A.K.SASI, AGED 42 YEARS, S/O SRI. KELA, ANASSERY HOUSE, VADATTUPARA P.O., KUTTAMPUZHA VILLAGE, KOTHAMANGALAM-686681.** **BY ADVS.SRI.K.D.BABU SRI.P.G.JAYASHANKAR KUM.P.G.GAYATHRI** **RESPONDENT(S)/PETITIONER IN OPMV AND RESPONDENT 2 AND 3 IN OP MV.:** **------------------------------------------------------------------** **1. ORIENTAL INSURANCE COMPANY LTD.** **T.H.TOWERS, MARKET ROAD, MUVATTUPUZHA, 686661.** **2. SRI.BABY, S/O YOHANNAN, NIRAPPUKANDTHIL HOUSE, VADATTUPARA P.O., KOTHMNGALAM- 686 661** **3. SRI. SIBI K.S., KADANTHRAYIL HOUSE, VADATTAPURA P.O., KOTHAMANGALAM - 686 661.** **R1 BY ADV. SRI.VPK.PANICKER R BY SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D.RAJAN, J.** ---------------------------------- M.A.C.A.No.21 of 2013 ---------------------------------Dated this the 17[th] day of October, 2017 ## **JUDGMENT** This appeal is preferred against the award in O.P.(MV)No.957/2006 of the Motor Accidents Claims Tribunal, (for short 'MACT') Muvattupuzha by the owner of the vehicle. On 15.7.2006 at about 7.30 p.m one Baby sustained injuries in a motor accident, while he was walking along the side of Vadattupara-Kothamangalam public road. The learned tribunal awarded compensation of 94,100/-₹ with interest and costs and directed the 1[st] respondentinsurer of the vehicle to pay the above compensation and reimburse the same from the appellant-owner of the vehicle. Being aggrieved by that, the owner of the vehicle preferred this appeal. 2. The injured's case in the tribunal is that while he was walking along the side of the road, a jeep KBR-3192 driven by the 3[rd] respondent in a rash and negligent manner knocked down the injured, as a result he sustained serious M.A.C.A.No.21/2013 2 injuries. Immediately, he was removed to hospital. The accident was due to the negligence of the driver of the jeep. The driver and owner were set ex parte in the tribunal. The insurer admitted the insurance of the vehicle and contended that the policy has been obtained by the owner by suppression of facts, therefore it is void. The injured was examined as PW1 and his documents were marked as Exts.A1 to A11. The copy of the policy was marked as Ext.B1. 3. The learned counsel appearing for the appellant contended that there is no suppression of facts at the time of obtaining the policy. The R.C. particulars of the vehicle shows that it was registered as a transport vehicle. Ext.B1 policy was obtained on the basis of R.C. particulars. There was no suppression of facts at the time of obtaining Ext.B1 policy. A wrong entry made by the AMVI in Ext.A5 did not disclose violation of any policy condition or suppression of material facts as alleged by the insurer. When R.C. M.A.C.A.No.21/2013 3 Particulars and the details in Ext.B1 policy correlate, the contention of the suppression of material facts raised by the insurer is unsustainable in law. The tribunal failed to appreciate that position and gave direction to pay the compensation and reimburse the amount from the insured. 4. The learned counsel appearing for the insurer also advanced the same contention taken in the tribunal and contended that there was no need to interfere in the finding of the tribunal. 5. Section 147 (1) of the M.V. Act reads as follows: - “147. **Requirements of policies and limits of liability.** (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which- (a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)- (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: provided that a policy shall not be required- M.A.C.A.No.21/2013 4 (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the police or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee,- (a) engaged in driving the vehicle or (b) if it is a public service vehicle engaged as a conductor of the vehicle or in examining tickets on the vehicle or (c) if it is a goods carriage, being carried in the vehicle or (ii) to cover any contractual liability. Explanation.- For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section 91), shall cover any liability incurred in respect of any accident, up to the following limits, nameluy:- (a) save as provided in clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be defective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. (3) A policy shall be f no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a M.A.C.A.No.21/2013 5 certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases. (4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe. (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.” Therefore, the statutory liability is cast upon the insurer to pay compensation to the third parties as per the policy issued by the company. ## 6. Apex Court in _**National Insurance Co.Ltd**_ . v. _**Swaran**_ ## _**Singh and Ors**_ [2204 ACJ 1] held as follows: “62. A bare perusal of the provisions of Section 149 of the Act leads to only one conclusion that usual rule is that once the assured proved that the accident is covered by the compulsory insurance clause, it is for the insurer to prove that it comes within an exception. M.A.C.A.No.21/2013 6 63. In MacGillivray on Insurance Law it is stated: '25-82 Burden of Proof: Difficulties may arise in connection with the burden of proving that the facts of any particular case fall within this exception. The usual rule is that once the assured has proved that the case comes within the general risk, it is for the insurers to prove that it comes within an exception. It has therefore been suggested in some American decisions that, where the insurers prove only that the assured exposed himself to danger and there is no evidence to show why he did so, they cannot succeed, because they have not proved that this behavior was voluntary or that the danger was unnecessary. Since an extremely heavy burden is imposed on the insurers if they have to prove the state of mind of the assured, it has been suggested in Canadian decisions that the court should presume that the assured acted voluntarily and that, where he does an apparently dangerous and foolish act, such danger was unnecessary, until the contrary is shown. In practical terms, therefore, the onus does in fact lie on the claimant to explain the conduct of the assured where there is not apparent reason fro exposing himself to an obvious danger.” The R.C. particulars of the vehicle, Ext.B1 shows that the vehicle was registered as a transport vehicle and the class of vehicle is mentioned as 'LMV-Motor Car less than 1500'. Even the insurer contends that there was though suppression of material facts while obtaining Ext.B1 policy, no evidence has been adduced by the insurer to substantiate the above contention. An entry made by the AMVI at the M.A.C.A.No.21/2013 7 time of inspection of the vehicle as 'M Cab' is not sufficient to take a defence of fraud against the insured. The tribunal failed to appreciate that position and directed to reimburse the amount from the owner of the vehicle. Hence, the direction to reimburse the amount from the appellant(owner of the vehicle) is hereby set aside and the appeal is allowed. Accordingly, the insurer (1[st] respondent) is directed to satisfy the award. **P.D.RAJAN, JUDGE** acd