National Insurance Co. Ltd. v. C.V. David and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943 ``` ``` MACA NO. 917 OF 2012 ``` ``` AGAINST THE AWARD DATED 08.12.2011 IN OP(MV)NO.1879/2003 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA ``` ## `APPELLANT/3RD RESPONDENT:` ``` NATIONAL INSURANCE CO.LTD, PATHANAMTHITTA, REP.BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G.ROAD, ERNAKULAM, COCHIN-35. ``` ``` BY ADV SRI.E.M.JOSEPH ``` ## `RESPONDENTS/CLAIMANTS AND RESPONDENTS 1 & 2:` ``` 1C.V.DAVID, S/O.YOHANNAN, CHARUVIL PUTHEN VEEDU, THAZHAM VATTAMON, IYRAVON, KONNI P.O., PATHANAMTHITTA. PIN:689 691 2K.PONNAMMA, W/O.DAVID, CHARUVIL PUTHEN VEEDU, THAZHAM VATTAMON, IYRAVON, KONNI P.O., PATHANAMTHITTA. PIN:689 691 3JAMES DAVID, S/O.DAVID, CHARUVIL PUTHEN VEEDU, THAZHAM VATTAMON, IYRAVON, KONNI P.O., PATHANAMTHITTA. PIN:689 691 4BINDUMOL DAVID, W/O.PRASAD, CHARUVIL PUTHEN VEEDU, THAZHAM VATTAMON, IYRAVON, KONNI P.O., PATHANAMTHITTA. PIN:689 691 ``` M.A.C.A.No.917/2012 -:2:- ``` 5RENEESH.R.MUHAMMED, S/O.MUHAMMED, ETTIMOOTTIL HOUSE, KUMMANNOOR P.O., IYRAVON, KONNI, PATHANAMTHITTA. PIN:689 691 6SHAJI JOY, KARIMALLOR HOUSE, PERUNADU P.O., PATHANAMTHITTA. PIN:689 691 ``` ``` BY ADVS.SRI.P.HARIDAS SMT.JAYASREE MANOJ SRI.N.MANOJ KUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.917/2012 -:3:- Dated this the 8[th] day of March,2022 ## **J U D G M E N T** The third respondent-insurer in O.P (MV)No.1879/2003 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta, is the appellant. The petitioners and the respondents 1 and 2 in the claim petition are the respondents in the appeal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988(in short, 'Act'), claiming compensation on account of the death of 'Jacob David'(deceased) – the son the petitioners 1 and 2 and the brother of the petitioners 3 and 4. It was their case that, on 04.10.2003, while the deceased was riding his motorcycle bearing registration No.KL-3G/7755 through the M.A.C.A.No.917/2012 -:4:- Vattamon-Anakuthi public road, a jeep bearing registration No.KRB/3414(jeep), driven by the first respondent in a negligent manner, hit the motorcycle of the deceased. The deceased had suffered fatal injuries and lost his life instantaneously. The jeep was owned by the second respondent and insured with the third respondent. The deceased was a Technician in Mannamcheril Service Station and was drawing a monthly salary of Rs.5,000/. He was aged 19 years at the time of accident/death and was a bachelor. Hence, the petitioners claimed a compensation of Rs.7,40,000/- from the respondents. 3. The respondent Nos.1 and 2 did not contest the proceeding and were set ex parte. 4. The third respondent had filed a written statement, denying the allegations in the claim petition. The third respondent also contended that the second respondent had sold the jeep to one John P M.A.C.A.No.917/2012 -:5:- John on 29.11.2002. But, the second respondent had not intimated to the third respondent regarding the change of ownership. Therefore, there was no privity of contract between the third respondent and Sri.John P John. It was also contended that, although the jeep was registered as a private car, at the time of the accident, the jeep was used as a goods carriage to transport sand, that too without a permit. Therefore, the second respondent had violated the insurance policy conditions. Hence, the third respondent may be exonerated of its liability. 5. The petitioners had produced and marked Exts.A1 to A7 in evidence. The third respondent had produced the insurance policy certificate, which was marked as Ext.B1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioners to recover from the M.A.C.A.No.917/2012 -:6:- third respondent-insurer an amount of Rs.4,77,000/with interest and cost of Rs.11,000/-. 7. Aggrieved by the allowing of the claim petition, the third respondent-insurer is in appeal. 8. Heard; Sri. E.M. Joseph, the learned counsel appearing for the appellant/third respondent-insurer, Sri. P.Haridas, the learned counsel appearing for the first respondent/first petitioner and Smt. Jayasree Manoj, the learned counsel appearing for the sixth respondent/second respondent. 9. When the appeal was taken up for consideration, Sri. E.M. Joseph, the learned counsel appearing for the appellant/third respondent-insurer, submitted that the appellant was confining the appeal to the question whether the appellant was entitled to an order to pay and recover the compensation amount from the sixth respondent/second respondent. 10. Hence, the short question that arises for M.A.C.A.No.917/2012 -:7:- consideration in the appeal is whether the Tribunal committed error not the any by permitting appellant/third respondent-insurer to pay the compensation amount and recover it from the sixth respondent/ second respondent?. 11. The specific case of the petitioners was that the accident occurred due to the negligence of the first respondent. To substantiate their contention, they had produced Ext.A5 Final Report laid by the Konni Police in Crime No.269/2003. 12. The Tribunal, on the basis of Ext.A5 and the uncontroverted pleadings in the claim petition, concluded that the accident occurred due to the negligence of the first respondent. As per the police records, the second respondent was the insured and the third respondent was the insurer of the jeep. It was in the above said circumstances, that the Tribunal concluded that the third respondent-insurer was to M.A.C.A.No.917/2012 -:8:- indemnify the liability of the second respondent arising out of the accident. 13. The defence of the appellant/third respondent-insurer was that, at the time of accident, the jeep was used as a goods carriage vehicle to transport sand. The appellant placed reliance on Ext.A5 Final Report, to demonstrate that the first respondent was chargesheeted for an offence punishable under Sections 279 and 304A of the Indian Penal Code, 1860(IPC), Sections 134A and 132 of the Motor Vehicles Act read with Section 25 of the Kerala Mines and Minerals Act, 1957 and a fellow passenger in the jeep was chargesheeted under Section 34 of the IPC. 14. The Schedule to Ext.B1 insurance policy provides the limitation as to the use of the vehicle. It is specifically mentioned that the vehicle shall not be used for carriage of goods(other than samples or M.A.C.A.No.917/2012 -:9:- personal luggage). 15. Admittedly, the appellant has not let in any evidence to prove that the jeep was used as a goods carriage vehicle. It is only on the strength of an omnibus plea in the written statement, alleging that the vehicle was used for transportation of sand, that the appellant has contended that there was a violation of policy conditions. 16. It is well settled in **B.V.Nagaraju v. M/s Oriental Insurance Company Limited** [(1996)4 SCC 647] that onus of proof is on the insurer to prove that the insured had violated the insurance policy conditions 17. It is true that this Court in **New India Assurance Co. Ltd. v. Pazhaniammal and Others** [2011 (3) KLT 648], has held in a claim filed under Section 166 of the Act, the charge sheet can be used to prove negligence, if there is no evidence to the M.A.C.A.No.917/2012 -:10:- contrary. 18. Nonetheless, that does not mean that the charge sheet is the magna carta to prove all aspects, including the defence of the insurer regarding breach of contract, which is a serious business touching the contractual rights of the parties. The burden rests entirely on the shoulder of the insurer to independently prove the breach. 19. In the above legal matrix, this Court holds that the appellant cannot aspire to prove breach of contract, on the basis of a charge sheet produced by the claimant, that too against the insured. With the little evidence on record, I am of the definite view that the appellant/third respondent-insurer has miserably failed to prove that the insured had violated the insurance policy conditions, alleging that the insured had used the jeep as a contract carriage vehicle. 20. Thus, I do not find any error or illegality in M.A.C.A.No.917/2012 -:11:- the Tribunal directing the appellant/third respondent-insurer to indemnify the liability of the second respondent-insured by paying the compensation amount and declining recovery rights to the appellant. In the result, the appeal is dismissed. In the peculiar facts of the case, the parties shall bear their respective costs. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/08.03.22 //True copy/ P.A.To Judge