Dr. K.P. Rajendran Pillai and Geetha Devi v. Muhammed Raffik S. and United India Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 16[TH] DAY OF MARCH 2023 / 25TH PHALGUNA, 1944** **MACA NO. 3911 OF 2022** **AGAINST THE AWARD IN OPMV 1461/2016 OF ADDITIONAL DISTRICT COURT MOTOR ACCIDENTS CLAIMS TRIBUNAL - III, PATHANAMTHITTA** ## **APPELLANTS/RESPONDENTS 1 & 2:** 1 DR. K.P.RAJENDRAN PILLA, AGED 67 YEARS S/O PADMANABHA PILLAI, THUNGA HOUSE, THONNALLOOR, PANDALAM, PIN - 689501 2 GEETHA DEVI, AGED 64 YEARS, W/O DR. K.P.RAJENDRAN PILLA, THUNGA HOUSE, THONNALLOOR, PANDALAM - 689501 GEORGE VARGHESE(PERUMPALLIKUTTIYIL) MANU SRINATH SHERIN EDISON ## **RESPONDENTS/PETITIONER & 3RD RESPONDENT:** 1 MUHAMMED RAFFIK S., AGED 61 YEARS S/O SULAIMAN RAWTHER, CHALUMPATTU HOUSE, THONNALLOOR, PANDALAM, PIN - 689501 2 THE DIVISIONAL MANAGER UNITED INDIA INSURANCE COMPANY LTD., KIZHAKKEDAM COMPLEX, PATHANAMTHITTA, PIN - 689645 A.N.SANTHOSH SMT.ALICE THOMAS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 3911 OF 2022 2 ## **JUDGMENT** The owner and driver of a vehicle - which has been found to be the offending one involved in a road accident which happened on 29.06.2016 - have filed this appeal, impugning the Award of the Motor Accidents Claims Tribunal, Pathanamthitta (Tribunal) in OP(MV) No.1461/2016 - filed by the person who was injured in the said road accident seeking compensation - on the ground that, its finding that the Insurance Company which covered his vehicle is not responsible to pay the compensation, is in error and contrary to law. 2. Sri.George Varghese (Perumpallikuttiyil) - learned counsel for the appellants, vehemently argued that, when the evidence on record is unambiguous in its sweep that the premium relating to the policy in question was accepted by the respondent – Insurance Company prior to the time when the accident happened, they could not have been exonerated from the responsibility to honour it, particularly as per the statutory ambit of Section 147(3) of the Motor Vehicles Act. He, however, conceded that his clients had not been able to impress the Tribunal effectively on this issue because, due to MACA NO. 3911 OF 2022 3 certain unavoidable circumstances, they had remained ex parte; and therefore, sought an opportunity to establish his case before the Tribunal again, thus seeking a remand of the Original Petition on this specific issue. 3. Sri.A.N.Santhosh, appearing for the first respondent – claimant, submitted that his client has been awaiting just compensation for the last more than six years after the accident, though the learned Tribunal had awarded an amount of Rs.2,61,000/- as early as on 06.07.2019. He argued that, therefore, even if this Court is inclined to remit the matter to the learned Tribunal for fresh consideration, it may only be on the condition that the appellants deposit the whole amount, so that his client can receive it because, at the end of the day, as far as the appellants are concerned, even if they are to succeed, they can recover it from the Insurance Company. 4. Smt.Alice Thomas – learned standing counsel for the Insurance Company, in refutation, argued that, even if this Court is to remand the matter to the Tribunal to offer an opportunity to the appellants to lead evidence, it would be without any purpose because, the binding precedents and MACA NO. 3911 OF 2022 4 settled law are unequivocal in its effect that an Insurance Company is bound to honour compensation only based on the endorsements on the policy issued by them. She relied on various judgments, including **Oriental Insurance Co. Ltd. v. Porselvi and others** [(2009) 15 SCC 116], **Balbir Kaur and others v. New India Assurance Co. Ltd and others** [(2009) 13 SCC 370] and **National Insurance Co. Ltd. v. Jijubhai Nathuji Dabhi and others** [(1997) 1 SCC 66] in support. She concluded saying that though her client does not stand in the way of this Court remitting the Original Petition to the learned Tribunal on this issue, necessary opportunities may be reserved in their favour also. 5. I have considered the afore rival submissions on the touchstone of the evidence on record - copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that it can be acted upon by this Court without dispute. 6. Upfront, I notice that the appellants remained ex parte before the Tribunal, but that they had moved an application to have the said order set aside. However, the learned Tribunal did not accede to this application because, MACA NO. 3911 OF 2022 5 by then, the impugned Award had been issued. 7. That said, the only relevant question in this case is whether the Insurance Company is liable to honour the compensation computed by the learned Tribunal. There is no dispute regarding the amount found or the entitlement of the first respondent to receive the same. 8. The specific argument of Sri.George Varghese (Perumpallikuttiyil) - learned counsel for the appellants, as I have already said above, is that since the owner of the vehicle had paid premium to the Insurance Company prior to the accident, they cannot shirk responsibility to honour it. He cited various judgments, including **National Insurance Co. Ltd. & others v. Sobina Iakai & others** [(2007) 7 SCC 786], **L.I.C. of India v. Kamalamma** [1986 KLT 347] and **General Assurance Society Ltd. v. Chandmull Jain and another** [1966 KHC 674] in fortification of his contention; and reiteratingly prayed that the matter be remanded to the learned Tribunal. 9. I am persuaded to accede to the request of Sri.George Varghese (Perumpallikuttiyil), to remand the matter to the Tribunal because, as I have said above, the law MACA NO. 3911 OF 2022 6 in this regard is well settled that, in the absence of a special contract between the parties, the provisions of the General Clause Act would apply and the liability of the Insurance Company under a policy of insurance would start from the midnight of the day on which the premium is accepted. Hence, what is relevant is whether there was any such special contract; and as a corollary, whether the endorsements in the policy itself would become such a contract. This issue will also have to be tested on the assertion of the appellants that what is crucial is the time of purchase of contract and I say so because, the Hon'ble Supreme Court has, in several judgments, declared it unambiguously that an owner can always purchase the contract on a future date, even after payment of the premium; but again, if the Insurance Company is to maintain so, it will have to establish that there was such a consent. This could be based on the endorsements on the insurance policy itself; or otherwise, which again would require evidence to be led and evaluated. 10. That being said, I am certain that the first respondent - claimant cannot be put to any further prejudice merely because of the disputes between the owner and the MACA NO. 3911 OF 2022 7 Insurance Company. This is more so because the appellants chose to file this appeal only on 28.11.2022, which is more than six years after the accident. Obviously, therefore, they can be given the privilege of being able to agitate this claim before the Tribunal only if they deposit the entire amount under the impugned Award, so that the claimant can receive it without any further delay. This is more so since, even if the learned Tribunal is to find in favour of the appellants consequent to the remand, provisions can be made for the Insurance Company to pay to them the sum quantified. 11. In the afore circumstances, this appeal is allowed to the limited extent of vacating the finding therein to the extent exonerating the Insurance Company from the liability to pay the quantum of compensation quantified in favour of the first respondent; however, on condition that the appellants will deposit the entire amount, along with interest and costs, before the learned Tribunal within a period of two months from the date of receipt of a copy of this judgment. 12. Axiomatically, on such deposit being made, the learned Tribunal will proceed to decide the sole issue of whether the Insurance Company is liable to honour the MACA NO. 3911 OF 2022 8 compensation, which shall be done after affording them and the appellants necessary opportunity of leading additional/fresh evidence and of further hearing; thus culminating in a fresh order on the afore sole issue, within a period of eight months from the date of deposit of the amount by the appellants. 13. As a corollary, if the afore amount is not deposited by the appellants, they would lose the benefit of this judgment and the impugned Award of the Tribunal would stand revived, with full liberty to the claimant to recover the compensation from them in terms of law thereafter. In order to ensure that the appellants are also not put to any difficulty on account of delay, I direct them and the Insurance Company to mark appearance before the Tribunal at 11 a.m. on 15.06.2023; and the learned Tribunal will proceed to dispose of the matter again, subject to verification as to whether the deposit as afore has been made. **Sd/- DEVAN RAMACHANDRAN** **JUDGE** stu MACA NO. 3911 OF 2022 9 ## **APPENDIX OF MACA 3911/2022** PETITIONER ANNEXURES Annexure 1 A TRUE COPY OF PATIENT IDENTIFICATION DETAILS ISSUED FROM REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM Annexure 2 A TRUE COPY OF DISCHARGE SUMMARY ISSUED FROM RENAI MEDICITY HOSPITAL Annexure 3 A TRUE COPY OF CERTIFICATE OF INSURANCE WITH POLICY NO. 1017833116P 104219641 ISSUED ON 29.06.2016 Annexure 4 A TRUE COPY OF COMPLAINT BEFORE THE SUPERINTENDENT OF POLICE, PATHANAMTHITTA ALONG WITH ACKNOWLEDGMENT Annexure 5 A TRUE COPY OF NOTICE UNDER SECTION 7 ISSUED FROM THE OFFICE OF DISTRICT COLLECTOR, PATHANAMTHITTA