Bajaj Allianz General Insurance Co. Ltd. v. Kunhami and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **TUESDAY, THE 14TH DAY OF NOVEMBER 2017 / 23RD KARTHIKA, 1939** **MACA.No. 1507 of 2013** **AGAINST THE AWARD IN OPMV 518/2009 of MOTOR ACCIDENTS CLAIMS TRIBUNAL VADAKARA DATED 31-12-2012** **APPELLANT(S)/3RD RESPONDENT** **BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD** **COIMBATORE, REPRESENTED BY ITS ASSISTANT MANAGER (LEGAL), KALOOR, KOCHI-17.** **BY ADV.SRI.GEORGE CHERIAN (SR.)** ## **RESPONDENT(S)/CLAIMANTS:** ## **1. KUNHAMI** **W/O. POCKER, POOVAN KUNNUMMAL HOUSE, CHERUVANNUR AMSOM PAMBINKUNNU DESOM, CHERUVANNUR P.O., KOYILANDY TALUK, PIN - 673 524.** ## **2. AYISHA** **AGED 35 YEARS, D/O. POCKER, POOVAN KUNNUMMAL HOUSE, CHERUVANNUR AMSOM PAMBIRIKUNNU DESOM, CHERUVANNUR P.O., KOYILANDY TALUK, PIN - 673 524.** ## **3. SHAHIDA** **D/O. POCKER, POOVAN KUNNUMMAL HOUSE, CHERUVANNUR AMSOM PAMBIRIKUNNU DESOM, CHERUVANNUR P.O., KOYILANDY TALUK, PIN - 673 524.** ## **4. SOOPY K.K.** **S/O. KUNHAMMED HAJEE, KOODATHAN KANDI HOUSE, AVADUKKA, PERUNVANNAMUZHI P.O., KOZHIKODE DISTRICT.** ## **5. ANANDALAL T.B.** **S/O. BALAN, THARAVATTATH HOUSE, MUTHUKAD P.O., PERUVANNUMUZHI, KOYILANDI TALUK.** **R1-R3 BY ADV. SRI.ZUBAIR PULIKKOOL** **R4 BY ADV. SRI.P.ABRAHAM CHERIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jm/** _**“**_ **C:R:"** ## **C.K.ABDUL REHIM, J. & K.P.JYOTHINDRANATH, J.** ======================== **M.A.C.A.No.1507 of 2013** ======================== Dated this the 14[th] day of November 2017 ## **JUDGMENT** ## Abdul Rehim, J. This appeal is instituted at the instance of the 3[rd] respondent/insurance company against the award in O.P(M.V.)No.518/2009 of the Motor Accidents Claims Tribunal, Vadakara. The limited challenge is against the direction issued by the Tribunal to the appellant to make payment of the amount of compensation and to recover it from the 1[st] respondent therein. 2. Brief history of the case is that, a person named Pocker died in a motor vehicle accident, which occurred on 6.4.2009. The person died while riding a bycycle was knocked down by a bus, allegedly due to the rash and negligent driving and over speed on the part of its driver, the 5[th] respondent herein, who was the 2[nd] respndent before the Tribunal. The 1[st] respondent before the Tribunal, who is the 4[th] respondent in the above appeal, was the M.A.C.A.No.1507 of 2013 **2** registered owner of the vehicle. The appellant herein, who was the 3[rd] respondent before the Tribunal was the insurer of the vehicle. The dependents of the deceased (respondents 1 to 3 herein) filed the claim petition impleading the owner, driver and the insurer of the bus in question. 3. Before the Tribunal, the appellant filed a written statement admitting that a policy was issued with respect to the vehicle in question. But it was contended that, the said policy was cancelled with effect from the date of its inception, due to dishonour of the cheque issued for payment of the amount of premium. The Tribunal, on adjudication based on the evidence on record found that, the accident occurred to rash and negligent driving of the bus by its driver and the owner of the vehicle being vicariously liable, has to pay the compensation awarded. On behalf of the appellant, Exts.B1 to B4 documents were produced to show that the cheque in question issued for payment of the premium was dishonoured and that the matter was intimated to the insured (owner of the bus). Ext.B4 is the office copy of the letter allegedly issued by the appellant to the insured, which is dated 16.9.2008. The contents of the said letter would indicate M.A.C.A.No.1507 of 2013 **3** that, the dishonour of the cheque was intimated to the insured. It is mentioned in the letter that the contract of insurance has became void _ab initio,_ in view of dishonour of the cheque and that the insurer is not on risk in respect of the cover note/policy/certificate of insurance. By the said letter, the insured was requested to remit the premium, in case he wants to take a fresh insurance cover. The Tribunal found that, the intimation regarding dishonour of cheque is insufficient for the insurance company to deny the liability and therefore held that the appellant is liable to indemnify the insured; but they will be having the right to recover the amount from the insured (registered owner of the vehicle). It is challenging the said finding that the present appeal is filed. 4. Contention of the appellant is that, the policy in question was issued on 18.8.2008 and the dishonour of the cheque was intimated to the insured on 16.9.2008. The accident in question occurred much after that, on 6.4.2009. Therefore the insurer cannot be held liable to make payment of the compensation. It is contended that, the contract of insurance was not in existence as on the date of the accident and the insurer M.A.C.A.No.1507 of 2013 **4** cannot be held liable to indemnify the insured, even with respect to the liability to any third party. 5. The issue on the point remains no more _res integra._ The Honourable Supreme Court in _**Oriental Insurance Company Ltd. Vs. Indrajit Kaur and others [1998 (1) KLT SN 23 = [1998 1 SCC 371]**_ held that, despite the bar created by Sections 64-VB of the Insurance Act, when the insurer had issued a policy to cover the vehicle, on receipt of premium there of, by reason of Sections 147 (5) and 149 (1) of the Motor Vehicles Act, the company become liable to indemnify the third parties in respect of the liability, which is covered through the policy; and is liable to satisfy the awards of compensation in respect thereof, not withstanding its entitlement to avoid or cancel the policy for the reason that the cheque issued for payment of the premium has not been honoured. It was observed that the appellant therein was not absolved of its obligations to the third parties under the policy because it did not receive the premium. Its remedies in this behalf lie against the insured, is the finding. 6. In _**New India Assurance Company Limited v. Rula and Others Vs. [AIR 2000 SC 1082]**_ the Hon'ble apex court M.A.C.A.No.1507 of 2013 **5** held that, subsequent cancellation of the insurance policy on the ground that the cheque through which the premium paid was declined, would not affect the rights of the third parties, which had accrued on issuance of the policy on the date on which the accident took place. If on the date of the accident there was a policy of insurance in respect of the vehicle in question, the third party would have a claim against the insurance company and the owner of the vehicle would have to be indemnified in respect of the claim of that party. It is held that, subsequent cancellation of the insurance policy on the ground of non payment of premium would not affect the right already acrued in favour of the third party. 7. Position settled through the above said rulings was reconsidered in a subsequent decision of the Hon'ble apex court, in _**National Insurance Company Limited Vs.Seema Malhotra and Others [2001 3 SCC 151] = [2001 1 KLT 822]**_ . Considering the provisions contained in Section 25 of the Contract Act, it was observed that, an agreement made without consideration is void. Section 65 of the Contract Act says that, when a contract becomes void, any person who has received any M.A.C.A.No.1507 of 2013 **6** advantage under such contract is bound to restore it to the person from whom he received it. So, even if the insurer had disbursed the amount covered by the policy to the insurered, before the cheque was returned dishonoured, the insurer is entitled to get the money back, is the dictum held. 8. In a still later decision in _**Deddappa and others Vs. Branch Manager, National Insurance Company Ltd. [2008**_ _**2 SCC 595]= [2008 1 KLT 296]**_ the hon'ble Supreme Court held that, when the cheque was returned dishonoured and when the insurer had cancelled the policy by communicating it to the owner of the vehicle and caused an intimation to the RTO concerned, the insurance company would not be liable to satisfy the claim. The apex court observed that, “we are not oblivious of the distinction between the statutory liability of the insurance company vis-a-vis and the third party in the context of Section 147 and 149 of the Motor Vehicles Act and the liabilities in other cases. But the same liabilities arising under a contract of insurance would have to be met if the contract is valid. If the contract of insurance has been cancelled and all concerned have been intimated there about, the insurance company would not be M.A.C.A.No.1507 of 2013 **7** ## liable to satisfy the claim” was the finding. 9. On a detailed scanning of the principles enunciated in all the above decisions cited, the Hon'ble Supreme Court in its latest decisions on the point, in _**United India Insurance Company Ltd. Vs. Laxmamma [2012 KHC 4273] = [2012 5 SCC 234]**_ held that, the legal position is that, where the policy of insurance is issued by an authorised insurer on receipt of cheque towards payment of premium and such cheque is returned dishonoured, the liability of the authorised insurer to indemnify third parties in respect of the liability which that policy covered subsists and it has to satisfy the award of compensation by reason of the provisions of S.147(5) and S.149 (1) of the M.V.Act, unless the policy of insurance is cancelled by the authorised insurer and intimation of such cancellation has reached the insured before the accident. In otherwords, where the policy of the insurance is issued by an authorised insurer to cover a vehicle, on reciept of the cheque towards payment of premium and the cheque gets dishononoured before the accident of the vehicle, and when such insurance company cancels the policy of insurance and sends intimation thereof to the owner, the M.A.C.A.No.1507 of 2013 **8** insurance company's liability to indemnify the third parties which that policy covered ceases; and the insurance company is not liable to satisfy the awards of compensation in respect thereof. 10. From the dictum discussed as above, it is evident that the insurance company can be exonerated from the liability only if it is proved that the policy was cancelled and the company had sent intimation thereof to the owner with respect to such cancellation. Therefore, in the case at hand, it is the burden of the appellant insurance company to prove that the policy was cancelled before the date of the accident and that the cancellation was properly intimated to the insured before the date of the accident. From Ext.B1 to B4 documents, it is evident that the cheque issued for payment of the premium was dishonoured. Ext.B4 would indicate that the company had issued a letter intimating about dishonour of the cheque and informing that the policy stands void _ab initio._ But the appellant company has not discharged its burden in proving that the cancellation of the policy was properly intimated to the insured, prior to the date of the accident. Despite production of Ext.B4, the insurance company had failed to produce anything to show that, either Ext.B4 was M.A.C.A.No.1507 of 2013 **9** actually send to the insured in any manner nor to show that the said letter was received by the insured on any particular date. Therefore, going by the dictum remaining settled as mentioned above, we are not in a position to hold that the company can be exonerated from the liability towards third parties, which it was obliged by virtue of provisions contained in Section 147 (5) and Section 147 (1) of the Motor Vehicles Act. Therefore, we are of the opinion that no interference is warranted against the findings of the Tribunal to the extent of directing the appellant to make payment of the amount of compensation awarded, with their right reserved to recover the same from the insured. Consequently the appeal fails and the same is liable to be dismissed. 11. Adv.Zubair Pulikkool, learned Counsel appearing for respondents 1 to 3, who were the claimants before the Tribunal, contended that, the quantum of compensation awarded by the Tribunal is insufficient and inadequate, and this court need to interfere for enhancing the compensation by invoking powers vested under Order 41 Rule 33 of the Code of Civil Procedure, with an object to do complete justice and to award 'just compensation' in the claim petition. In this regard, it is pertinent M.A.C.A.No.1507 of 2013 **10** to note that the respondents 1 to 3 had filed a cross objection in the above appeal as Cross Objection No.170/2015. The said cross objection was filed with an appliction to condone delay of 493 days in C.M.Application No.3367/2015. This court, through order dated 14.6.2016, had dismissed the application for condonation of the delay, finding that the explanation offered for delay was neither true nor tenable. Consequently, the cross objection was dismissed through an order passed on the same date. Question mooted for decision is as to whether this court can exercise the powers vested under Order 41 Rule 33 CPC to enhance the compensation awarded, despite dismissal of a cross appeal (cross objection) filed by the claimant. 12. Contention of respondents 1 to 3 was that, even the cross appeal itself was not maintainable and therefore dismissal of the cross appeal cannot be considered as a bar for invoking powers vested on this Court order under Order 41 Rule 33. In support of the said contention, learned counsel had placed reliance on various decisions of this Court. In _**United India Insurance Company Vs. Jameela Beevi [1991 (1) KLT 832]**_ it was held that, a cross objection by the claimants is not M.A.C.A.No.1507 of 2013 **11** maintainable in an appeal filed by the insurer. It is stated that the appellant insurer in such case, merely indemnifies the insured with whom has has a contract of insurance. The claimants are not entitled to maintain a cross objection in such an appeal filed by a party who is only a mere indemnifier. In _**Oriental Insurance Company V. Mary Pushpam**_ [1996 (1) KLT 806] it was held that, even if a party who was entitled to file a cross objection, omits to file the same, the appelate court in appropriate cases can grant necessary reliefs to such a party, under Order 41 Rule 33 of CPC. Even if the party was not entitled to file a cross objection, still the party can be granted necessary reliefs in appropriae cases by the appeal court in exercise of provisions contained under order 41 Rule 33 of CPC, is the finding. In the said case, it was an appeal filed by the insurer challenging the award only to the extent that the Tribunal made the appellant liable for payment of the amount in excess of its liability under the policy. This court after referring to _**Jameela Beevi's case**_ (supra) and the decision in _**National Insurance Company Ltd. v. Kunjhi Krishnan Nambair [1994 1 KLT 956]**_ held that, the cross objection filed by the claimant is not maintainable. However M.A.C.A.No.1507 of 2013 **12** it was held that, even though the cross objection filed as such is not maintainable, the claimants are entitled to get relief in some of the grounds with respect to adequancy of the compensation, in exercise of power vested on the appellate court under Order 41 Rule 33. In holding so, this Court had placed relieance on the decision in _**Pannalal State of Bomabay [AIR 1963 SCC 1516].**_ It is a the case where the respondent in the appeal before the High Court had invoked power under order 41 Rule 33 CPC, without filing any appeal or cross objection. Though the request was turned down by the High Court, the Hon'ble Supreme Court had found that, the refusal was illegal and allowed the prayer by the remanding the matter to the High Court directing to consider how far the relief can be granted to the respondent in exercise of powers conferred under order 41 Rule 33 CPC. 13. Based on the above decisions, it is contended that, even if the respondents have not chosen to file a cross objection or in a case where the cross objection is not maintainable, this court is empowered to invoke powers vested on it under Order 41 Rule 33 CPC, in order to ensure that 'just compensation' is paid to the claimants. M.A.C.A.No.1507 of 2013 **13** 14. It is pertinent to note that in a more recent decision in _**Manojkumar v. Subramanian and Others [2010 (2) KHC 725,**_ a Division Bench of this court observed that, a cross objection filed by the insured/owner against the rights and liberties of the insurer, in an appeal preferred by the claimant for enhancement is not maintainable. It is held that the cross appeal is maintainable only if the rights of the cross objector are directly concerned or connected with the issue involved in the appeal already preferred, and which is pending consideration. 15. Going by the above principle, in the case at hand, the appeal is not directly concerned or connected with the rights and liberties of the claimants, because in the appeal preferred by the insurer they are only disputing their liability based on the contention of cancellation of the policy. But the question still remains open for debate in view of the findings rendered by the three judges bench of the Supreme Court in _**United India v.Shyla Datta [2011 (4) KLT 378 (SC)]**_ . In the said decision, it is held that the insurer, when impleaded in a motor accident claim is entitled to contest the claim on all grounds available to the insured, irrespective of the limitation contained under Section 149 M.A.C.A.No.1507 of 2013 **14** (2) of the Motor Vehicles Act. A possible view which can be taken is that, in view of the dictum contained in _**Shyla Datta's case**_ (supra) the grounds available to the insurance company is not limited, the claimants are entitled to maintain a cross appeal seeking enhancement of the compensation. However, we are of the opinion that, the question whether the claimants are entitled to seek enhancement through a cross objection in the appeal filed by the insurer challenging its liabiity is not of much relevance on the factual matrix of the case at hand. Evidently, the cross appeal filed by respondents 1 to 3 was dismissed consequent to dismissal of the application seeking condonation of delay. Effect of dismissal of the cross objection is that challenges raised by the claimants (respondents 1 to 3) stands negatived by this court. Question arise is as to when the challenge raised against the impugned award at the instance of the claimants stands negatived, whether this court can exercise powers vested under Order 41 Rule 33 CPC for enhancing the compensation in favour of the claimants. 16. Learned Counsel for the resondents 1 to 3 had placed reliance on the deicision of the Hon'ble High Court of Madras in M.A.C.A.No.1507 of 2013 **15** ## _**Royal Sundram Alliance Insurance Co.Ltd. vs. T.Selvarani**_ _**and others [2017 ACJ 396]**_ wherein it is held that, in the absence of an appeal or cross objection from the side of the claimants against the amount of compensation awarded, the court can invoke powers under Order 41 Rule 33. Similarly, in another decision of the same High Court in _**IFFCO-Tokio General Insurance Company Ltd. v. M.Balasubramaniam**_ _**and another [2016 ACJ 1505]**_ it is held that, the appellate court can exercise powers under Order 41 Rule 33 suo motu to enhance the compensation for providing 'just compensation', even in case where the claimant did not file any appeal or cross objection in any appeal filed by the insurance company. But the position remains distinguished when the cross objection filed by the claimants stands dismissed. Even though it is contended that the cross objection can be considered as one not maintainable, we cannot take such an inference when the cross objection was dismissed consequent to dismissal of the application for condonation of delay. 17. We are of the considered opinion that, powers vested on the appellate court under Order 41 Rule 33 is in the nature of M.A.C.A.No.1507 of 2013 **16** a descretionary power. As contended by the learned Counsel for respondents 1 to 3, the power can be exercised in order to do complete justice and in order to ensure that 'just compensation' is awarded to the victim in a motor accident claim case. But the question is whether such descretion can be exercised in a case where the claimant had attempted to challenge the award in a cross appeal and when he became unsuccessful in such an attempt. Our answer to the question paused is only on the negative; and hence we are of the opinion that despite the dispute as to whether the claimants were entitled to have a cross objection maintained or not, the powers under under Order 41 Rule 33 cannot be exercised in view of the dismissal of the cross appeal already filed. 18. In the result, the above appeal has to be dismissed by declining interference with respect to the impugned award. In view of the dismissal of the appeal, the appelant insurance company is directed to make desposit of the amount due under the award within a period of two months from the date of receipt of a copy of this judgment. Needless to observe that the respondents 1 to 3 (claimants before the Tribunal) will be M.A.C.A.No.1507 of 2013 **17** entitled to approach the Tribnal seeking withdrawal and the Tribunal shall pass appropriate orders there on without any further delay. Needless to observe that the recovery rights granted to the appelant will survive. Sd/ **C.K.ABDUL REHIM JUDGE** sd/ **K.P.JYOTHINDRANATH JUDGE** jm/ \\True copy \\ PA to Judge