National Insurance Company Ltd. v. K.M. Ashok and Jose Abraham

## **`1IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` FRIDAY, THE 19[TH] DAY OF MAY 2023 / 29TH VAISAKHA, 1945 MACA NO. 840 OF 2013 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 1638/2006 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM DATED 31.12.2012 APPELLANT/RESPONDENT NO.2: ``` ``` THE NATIONAL INSURANCE CO.LTD. DIVISION OFFICE, KOTTAYAM - 2, REPRESENTED BY ITS MANAGER. ``` ``` BY ADVS.SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA ``` ## **`RESPONDENTS/PETITIONER AND RESPONDENT NO.1:`** ``` 1K.M.ASHOK S/O.MOHANAN NAIR, KOMALAVILASAM (MOHAN VILLA), NEAR KOIPPURAM SCHOOL, VAZHAPPALLY WEST, CHANGANASSERY, KOTTAYAM - 686 103. ``` ``` 2JOSE ABRAHAM S/O.ABRAHAM, SANTHOSH BHAVAN, NEAR PALLICHANTHA, PADINJATTUKIZHAKKUMURI, SOORANADU, KUNNATHUR, KOLLAM - 690 522. ``` ``` BY ADVS.SMT.TISSY ROSE K CHERIYAN SRI.SYAM J SAM SRI.SYAM J SAM ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 13.02.2023, THE COURT ON 19.05.2023 DELIVERED THE FOLLOWING: ``` MACA No. 840 of 2013 ## -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - MACA No. 840 of 2013 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of May, 2023 ## **JUDGMENT** The appeal on hand is filed by the 2[nd] respondent in OP(MV) No. 1638 of 2006 against an award passed by Additional Motor Accident Claims Tribunal, Kottayam (for short ‘ the Tribunal’) on 31.12.2012. The 2[nd] respondent is the insurer of the offending vehicle. 2. Challenge is against the failure of the Tribunal to declare the policy issued for the offending vehicle void for the reason of suppression of some material facts by the insured while obtaining the policy. 3. The parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 and 2 in accordance with their status in the Original Petition. 4. The motor accident in the case on hand was occurred on 06.09.2002. The petitioner was travelling in a scooter bearing registration No.KL-5E-6604 from Changanacherry to Thiruvalla MACA No. 840 of 2013 -:3:- through M.C. Road. At about 8.45 a.m. when the scooter reached in front of Dhanya Metals at Madhumoola junction, a car bearing registration No. KL-3A-1791 came from the opposite direction and hit against the scooter causing the petitioner to fell on the road and sustained injuries. He was rushed to Government Hospital, Changanacherry for treatment. The motor accident was allegedly occurred due to the rash and negligent driving of the car by its driver who was arrayed as the 1[st] respondent. He himself was the owner of the offending vehicle and it was insured with the 2[nd] respondent as on date of accident. Claiming a sum of Rs.2,04,000/- as compensation, the Original Petition was moved before the Tribunal. 5. The 1[st] respondent did not turn up to contest the Original Petition, despite receipt of summons from the Tribunal. The 2[nd] respondent filed a written statement disputing the manner in which the accident was occurred. According to them, the accident was occurred due to the negligence of the petitioner himself and not due to the negligence of the 1[st] respondent. Age, occupation and monthly income of the petitioner were denied alleging falsity. The pleadings regarding the injuries sustained, MACA No. 840 of 2013 -:4:- period of treatment, disability caused and expenses incurred were also denied on account of its false nature. The amount claimed as compensation is alleged as excessive and without any legal basis. The policy issued in respect of the offending car is admitted. Accordingly the claim petition is sought to be dismissed. The 2[nd] respondent has also obtained permission from the Tribunal to contest the claim petition by availing all statutory defenses. 6. Oral evidence was not adduced before the Tribunal by either side. Exts.A1 to A11 series were marked on the side of the petitioner and Exts.B1 and B2 on the side of the respondent. Issues 1 and 2 were considered together by the Tribunal and found that the petitioner sustained injuries due to rash and negligent driving of the car by the 1[st] respondent. Based on Ext.A4 wound certificate issued from Government Hospital, Changanacherry and Ext.A6 discharge card issued from medical College Hospital, Kottayam, the Tribunal came to the conclusion that the petitioner herein sustained fracture of both bones (tibia & fibula) of left leg, lacerated wound 3x3 cm on right knee and left forehead and lacerated wound on left leg. He was treated at MACA No. 840 of 2013 -:5:- Government Hospital, Changanacherry and Medical College Hospital, Kottayam as inpatient as well as outpatient. 7. Having due regard to the injuries sustained, the treatment undergone by the petitioner, the expenditure incurred for treatment and the disability suffered by him on account of the injuries, the Tribunal arrived at Rs.73,100/- as the compensation payable. Interest at the rate of 7.5% per annum from the date of the Original Petition till the date of realisation alongwith proportionate cost were also awarded. Liability was fixed on the 2[nd] respondent to indemnify the insured. 8. The grievance of the learned counsel for the 2[nd] respondent was that when the contentions in the written statement filed by him were extracted in the impugned award, not even a mention is made about the specific contention taken there regarding suppression of a material factum by the insured while taking the policy. According to him, the certificate of insurance as well as the permit issued in respect of the offending vehicle were also produced and marked in evidence as Exts.B1 and B2, but no reference was made about those in the impugned award. According to the learned counsel, if the above documents MACA No. 840 of 2013 -:6:- were adverted to by the Tribunal, the 2[nd] respondent ought to have been exonerated from liability to indemnify the insured. According to the learned counsel, it can be seen that though the offending vehicle was a contract carriage, as revealed from Exts.B2, Ext.B1 policy was obtained by showing the vehicle as a private one. Therefore, the policy seems to have been taken by the insured suppressing the material factum that the vehicle in respect of which was taken was a contract carriage. 9. It is seen from the certificate of insurance that the nature of the vehicle was shown as private vehicle. Premium was also found collected for the vehicle, as if it was a private vehicle. Therefore, it is learnt that the nature of the vehicle was suppressed while availing the benefit of certificate of insurance for it. The contract of insurance being one of _uberrimae fidei,_ the 1[st] respondent ought not to have suppressed the real nature of the vehicle at the relevant time when the policy was taken. It is for the insured while applying for the policy to disclose all material aspects relating to the vehicle or in other words contract of insurance is one where the contracting parties must act with atmost good faith. The policy was taken to cover the risk of MACA No. 840 of 2013 -:7:- victims of the motor accident as well as damages caused to properties. Therefore, the party approaching the insurer to avail the benefit of contract of insurance for the vehicle owned by him must see that all material aspects relating to the vehicle have been disclosed to it. 10. In the case on hand, a material factum regarding the nature of the vehicle of a contract carriage was suppressed at the time when the insurer was approached for taking the policy for the vehicle. Premium was also paid as if the vehicle was a private vehicle. In view of the suppression of the above material factum, the insured can only be taken to have violated Sub-section (2) of Section 149 of Motor Vehicles Act, 1988 (for short ‘MV.Act’). When a material factum as above was suppressed, the policy can only be said to have been obtained by fraud and therefore is void. 11. The Tribunal while passing the award overlooked the contention taken by the 2[nd] respondent in its written statement about suppression of a material factum. Therefore Ext.B1 policy was obtained by the 1[st] respondent by suppressing some material factum relating to the vehicle and therefore is void. The Tribunal MACA No. 840 of 2013 -:8:- failed to advert to the contention specifically taken by the 2[nd] respondent in its written statement and accordingly the suppression was not brought to light. Exts.B1 and B2 if properly adverted to, the Tribunal could have found that the insured had obtained Ext.B1 policy by suppressing some material aspects relating to the case on hand. In the above circumstances, Ext.B1 policy is liable to be declared as void and the 2[nd] respondent exonerated from liability to indemnify the insured. ## 12. In **Afsal K.A. v. Roby Kuriakose and Others** [2021 (5) KHC 541] relied on by the learned counsel for the appellant it was held that the policy when availed by the insured, in suppression of a material factum that the vehicle was a contract carriage, it would render the policy void and exonerated insurer from liability. The argument advanced by the learned counsel for the appellant is well fortified by the dictum cited supra. In the above circumstances, the impugned award to the extent it fixes the liability upon the 2[nd] respondent insurer is only liable to be reversed. In the result, the appeal stands allowed in part. The impugned award to the extent it fixes the liability upon the 2[nd] MACA No. 840 of 2013 -:9:- respondent to indemnify the insured is set aside and the 2[nd] respondent is exonerated from its liability to indemnify the insured for the reason that the policy obtained is void on account of suppression of a material factum and the liability is fixed upon the 1[st] respondent to pay the compensation arrived at, in favour of the petitioner. The impugned award in all other respects is maintained. Sd/- **MARY JOSEPH, JUDGE.** ttb