M.A.C.A.No.2859 of 2018

M.A.C.A.No.2859 of 2018 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 25[TH] DAY OF AUGUST 2021 / 3RD BHADRA, 1943** **MACA NO. 2859 OF 2018** **AGAINST THE AWARD DATED 30.05.2018 IN OPMV 1424/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA** ## **APPELLANT/3RD RESPONDENT:** UNITED INDIA INSURANCE COMPANY LIMITED RANNI NOW REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11. BY ADVS. JACOB MATHEW P.JACOB MATHEW ## **RESPONDENTS/PETITIONERS AND RESPONDENTS 1 & 2:** 1 ALEYAMMA K. ELIYAS W/O.LATE K.ELIYAS, KUDILIL HOUSE, VAYALATHALA P.O., CHERUKOLE VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT, PIN 689 660. 2 MARY K.ALIYAS, D/O.LATE K.ELIYAS, KUDILIL HOUSE, VAYALATHALA P.O., CHERUKOLE VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT, PIN 689 660. 3 ELIZABETH K.ALIYAS, D/O.LATE K.ELIYAS, KUDILIL HOUSE, VAYALATHALA P.O., CHERUKOLE VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT, PIN 689 660. M.A.C.A.No.2859 of 2018 2 4 GEORGE THOMAS, S/O.THOMAS, PALLICKAL HOUSE, PUTHAMON, KATTOOR P.O., CHERUKOLE VILLAGE RANNI TALUK, PATHANAMTHITTA DISTRICT, PIN-689650. 5 PRASANNAKUMAR V.G., S/O.GOPI C.K., VELLARETHU MEMURIYIL, VAYALATHALA P.O., CHERUKOLE VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT, PIN 689 660. BY ADVS. SRI.JACOB P.ALEX SRI.V.PHILIP MATHEW SRI.JOSEPH P.ALEX THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.08.2021, THE COURT ON 25.08.2021 DELIVERED THE FOLLOWING: M.A.C.A.No.2859 of 2018 3 ## _**A. BADHARUDEEN, J.**_ ================================ M.A.C.A.No.2859 of 2018 ================================ Dated this the 25[th] day of August, 2021 ## _**JUDGMENT**_ The original 3[rd] respondent M/s.United India Insurance Company in O.P(MV).No.1424/2011 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta is the appellant herein. Liability fastened on the Insurance Company by the learned Tribunal is the matter under challenge in this appeal where the original petitioners as well as respondents 1 and 2 were arrayed as the respondents herein. 2. I would like to refer the parties in this appeal as petitioners and respondents for brevity and convenience. 3. Epitomized form of the material facts in this case: One K.Eliyas died in a motor accident occurred on 10.4.2011 at about 8.30 p.m while he was travelling in a truck bearing Registration No.KL.06.C.2259 driven by the 2[nd] respondent in a rash and negligent manner. The legal heirs viz., wife and children, filed application under M.A.C.A.No.2859 of 2018 4 Section 166 of the Motor Vehicles Act and claimed Rs.50 lakh as compensation. 4. First and second respondents filed written statement and opposed the narration of the accident as alleged by the petitioners. According to them, the deceased was a pedestrian on the road, who was hit down by the vehicle which resulted in his death. 5. The 3[rd] respondent insurance company filed written statement and admitted the policy. But the liability to pay compensation was disputed on the ground that the offending vehicle was used for illegal transportation of sand and Police laid charge under Sections 279 and 304 of I.P.C as well as under Sections 20 and 21 of the Kerala River Bank Protection (KRBP) Act. 6. The learned Tribunal adjudicated the matter on merits and finally awarded Rs.7,05,448/- as compensation with 9% interest. The amount was ordered to be paid by the insurance company being the insurer of the offending vehicle. 7. The core issue in this matter is denial of exoneration sought for by the insurance company/3[rd] respondent on the ground that the vehicle was used for illegal transportation of sand and the deceased travelled in the M.A.C.A.No.2859 of 2018 5 vehicle as a person accompanying illegal sand. Therefore, the company has no liability to indemnify the insured is the crux of the contention. 8. In support of this contention, the learned counsel for the insurance company placed reliance on the decisions reported in [2003 (1) KLT 955], _**National Insurance Co. Ltd. v. Saidali**_ , [2011(2) KHC 320], _**New India Assurance Company Ltd. v. Jameela & Ors.**_ And [2020(4) KHC 623], _**Soman v. Jinesh James & Ors.**_ . 9. On perusal of the decision in _**Saidali**_ ( _supra_ ), the ratio of the decision is that after the amendment to Section 147(1)(a)(i) of the Motor Vehicles Act, 1988 it brought the owner of the goods or the representative of the owner of the goods carried in the goods vehicle within the coverage of act only policy. But this decision is silent as to illegal transport of goods. Similarly, in _**Jameela**_ ’s case ( _supra_ ) also, the ratio is confined to the point that risk of the person who died or sustained injury as the owner of the goods or the representative of the owner of goods is covered by the insurance policy issued under S.147 of the Motor Vehicles Act and that a person continues to be the owner of the goods or representative of owner of goods even while returning after unloading goods. M.A.C.A.No.2859 of 2018 6 10. The subject matter dealt in _**Jinesh James**_ ’s case ( _supra_ ) is totally on a different footing and the same has no relevance to the point in issue. 11. The learned counsel for respondents 1 and 2, the insured and the driver, argued that the deceased is not a traveller in the goods vehicle and he is a pedestrian. Therefore, the policy issued by the company would cover the risk of the deceased. In fact, this contention is not supported by any evidence and the evidence available would go to show that the deceased was travelling in the offending vehicle at the time of accident after carrying sand. 12. The learned counsel for the petitioners pointed out that no evidence is available in this matter to hold that the vehicle was engaged in transport of illegal sand at the time of accident. The learned counsel submitted further that in paragraph No.20 of the award, the Tribunal observed that though the Police charged offences under Sections 20 and 21 of KRBP Act on the ground that sand was illegally transported, the said allegation was not proved as per Ext.B2 judgment thereof. Thus there is no evidence herein to establish the point that the vehicle was involved in illegal transportation of sand at the time of accident so as to grant exoneration or recovery right in favour of the insurance company. M.A.C.A.No.2859 of 2018 7 13. Coming to the core issue as to whether the deceased followed illegal sand in the goods vehicle at the time of the accident, in the written statement filed by the insurance company Police charge alleging commission of offence under Section 20 and 21 of KRBP Act is the plank on which such a contention seen raised after admitting the policy. On perusing Ext.B1 policy covering the period of accident, the same is a package policy covering the risk of 2 employees as well. Ext.B1 is the copy of the policy produced by the insurance company and the same is not so legible. However, Ext.A5 produced from the side of the petitioners also is a copy of the said policy. Therein under the head `limitations as to use’, it is provided that the policy covers use only under a permit within the M.V Act, 1988 or such a carriage falling under sub section 30 and 66 of the M.V Act and the policy does not cover use for a organized racing, pace making, reliability trials and speed testing. 14. It is pertinent to note that in para.20 of the award, the learned Tribunal discussed about Ext.B2 certified copy of the judgment in C.C.1819/14 dated 19.02.2018 whereby the accused was acquitted in the criminal case subsequent to filing of Ext.A6 final report alleging commission of offence under Section 20 and 21 of the KRBP Act. The learned counsel M.A.C.A.No.2859 of 2018 8 for the insurance company given much emphasis to Ext.A6 Police charge to contend that the driver of the vehicle was charged under Sections 20 and 21 of the KRBP Act along with offences under Section 279 and 304A of I.P.C and to substantiate that the vehicle was used for illegal transportation of sand at the time of the accident. In Ext.A6 police charge, transport of illegal river sand in the offending vehicle is stated. Separate report alleging commission of offence under Section 20 and 21 of the KRBP Act also is stated therein. It appears that Ext.B2 discussed in the award by the Tribunal not seen marked in the appendix of this award though it was discussed by the Tribunal, may be due to omission. However, Ext.B2 is available in the case records. The Tribunal discussed the same to negative the contention of the insurance company. As such, there is no harm in reading Ext.B2 in evidence. In Ext.B2 judgment dated 09.02.2018, offences under Sections 279 and 304 of the I.P.C were the offences for which the accused was tried. Thus it appears that the Magistrate even not took cognizance for the offences under Section 20 and 21 of the Act. On trial, the accused was acquitted for the offences under Sections 279 and 304 of I.P.C for want of evidence. Thus it has to be held that the mere allegation in the Police charge as to commission of offence under Section 20 and 21 of the KRBP Act alone is the substance available herein. M.A.C.A.No.2859 of 2018 9 15. Going by the decisions cited by the learned counsel for the insurance company, none of the said decisions dealt with use of vehicle for illegal purposes and the same as a reason to deny coverage. Coming to the matter in dispute, the Police charge alleging commission of offence under Section 20 and 21 of the KRBP Act is the only evidence pointed out by the learned counsel for the insurance company to hold that the vehicle was used for transporting illegal sand. 16. As per Ext.B2, as I have already discussed, even the Magistrate not took cognizance for the offences under the KRBP Act and trial was proceeded for the offences under IPC alone. That also ended in acquittal. 17. The legal position is not in dispute that if the insured vehicle is used for purposes prohibited as per the terms of the contract of insurance, the insurer could very well deny contractual obligation to indemnify the insured. However, in order to succeed such a contention, the said contention must be proved by support of cogent and convincing evidence. Mere allegations in the Police charge, which was found against during trial, would not suffice the proof mandated in this regard. 18. In the factual scenario discussed, there is no convincing evidence available to justify the contention raised by the learned counsel for the M.A.C.A.No.2859 of 2018 10 insurance company as such. The learned Tribunal rightly disallowed either exoneration or right of recovery claimed by the company for the above reasons. Therefore, the said finding cannot be interfered at all. Consequently, the award as such is liable to be confirmed. 19. In the result, the appeal fails and is accordingly dismissed. The parties are directed to suffer their respective costs. 20. It is submitted by the learned counsel for the petitioners that the amount awarded not released so far in view of the pendency of this appeal and direction to the Tribunal may be given to expedite immediate release of the amount in deposit. The submission appears to be having force. Therefore, I direct the learned Tribunal to disburse the amount in deposit without any further delay on receipt or production of the copy of this judgment. The insurance company is directed to deposit balance amount, if any, within one month, facilitating release of the same by the petitioners in the proportion directed by the Tribunal. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_