New India Assurance Company Ltd. v. K.N. Sasi, Krishnankutty and Jose

1 MACA 2251 of 2012 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 14TH DAY OF SEPTEMBER 2020 / 23RD BHADRA, 1942** ## **MACA.No.2251 OF 2012** **AGAINST THE AWARD IN OPMV 868/2005 DATED 05-06-2012 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/S:** **THE NEW INDIA ASSURANCE COMPANY LTD. KOLLANNUR BUILDING, PALACE ROAD, THRISSUR, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, KADAMKULATHY TOWERS, M.G ROAD, ERNAKULAM.** **BY ADV. SRI.LAL GEORGE** ## **RESPONDENT/S:** |**1**|**K.N.SASI, AGED 38 YEARS**| |---|---| ||**S/O.NARAYANAN, KIZHAKKUMPURATH HOUSE, ARIMBUR,**| ||**THRISSUR DISTRICT. 680 620.**| |**2**|**KRISHNANKUTTY**| ||**S/O.AYYAPPAN, VALIYAPARAMBIL HOUSE, P.O KANJANY,**| ||**THRISSUR DISTRICT. 680 620.**| |**3**|**JOSE**| ||**S/O.DEVASSY, KANJIRATHINGAL HOUSE, ARIMBUR DESOM,**| ||**PARAKKAD VILLAGE, THRISSUR DISTRICT. 680 620.**| ||**R1 BY ADV. SRI.P.S.APPU**| ||**R1 BY ADV. SRI.A.R.NIMOD**| ||**R1 BY ADV. SRI.T.C.SURESH MENON**| ||**R2 BY ADV. SRI.M.B.PRAJITH**| **THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-09-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA 2251 of 2012 ## **C.S.DIAS, J. ====================== M.A.C.A No.2251 of 2012 ====================== Dated this the 14[th] day of September, 2020.** ## **JUDGMENT** The appellant is the third respondent in OP(MV) No.868/2005 on the file of the Motor Accidents Claims Tribunal, Thrissur. The parties are, for the sake of convenience, referred to as per their litigate status in this appeal. 2. The first respondent had filed the claim petition seeking compensation under Sec.166 of the Motor Vehicles Act, 1988. 3. It was the case of the first respondent that, on 27.8.2004, while he was traveling in a car bearing registration No.KEF 355, a bus bearing registration No.KL08-H-5783 hit the car from behind and that he sustained serious injuries. He was treated as inpatient. The accident occurred solely due to the rash and negligent driving of the 3 MACA 2251 of 2012 third respondent. The second respondent is the owner and the appellant is the insurer of the offending vehicle. Therefore, the appellant and respondents 2 and 3 are jointly and severally liable to pay compensation to the first respondent. 4. The respondents 2 and 3 were set exparte. The appellant-Insurance Company filed a written statement before the Tribunal admitting the insurance policy. However, it was, inter alia, contended that the insurance policy (which was marked as Ext B1) does not ipso facto attach any liability with the appellant. The policy is an 'Act Only' policy, and that the first respondent was a gratuitous passenger. Hence, the appellant is not liable to pay any amount as compensation to the injured. 5. Neither the first respondent nor the appellant adduced any oral evidence. Exts A1 to A8 were produced and marked in evidence on the side of the first respondent and Ext B1 was produced and marked in evidence on the side of the appellant. 6. The Tribunal, by the impugned award, allowed the 4 MACA 2251 of 2012 claim petition in part, by holding that the first respondent is entitled to get an amount of Rs 58,600/- with interest at the rate of 8% per annum, from the date of the claim petition till the date of realization with proportionate costs, from the appellant and the appellant was permitted to recover the said amount from the respondents 2 and 3. 7. It is assailing the impugned award that this appeal is filed. 8. Heard Sri.Lal George, the learned counsel appearing for the appellant, Sri.A.R.Nimod, the learned counsel appearing for the first respondent and M.B. Prajith, the learned counsel appearing for the second respondent. 9. The learned counsel appearing for the appellant drew the attention of this Court to Ext B1 policy and argued that in the note to the policy, it is unambiguously mentioned that the policy is subject to the terms and conditions mentioned in it and that of the Indian Motor Tariff (IMT for short) endorsement numbers '16' and '29'. He placed reliance on IMT No.16 and contended that only four categories of injuries are covered by the policy, which reads 5 MACA 2251 of 2012 ## thus: |thus:|| |---|---| |Details of injury|Scale of compensation| |(i) Death|100%| |(ii)Loss of two limbs or sight of two eyes or one<br>limb and sight of one eye|100%| |(iii)Loss of one limb or sight of one eye|50%| |(iv) Permanent total disablement from injuries<br>other than named above|100%| 10. The learned counsel further argued that the first respondent has not sustained any injury falling within the above table, therefore, the appellant is not liable to pay any amount as compensation. He also relied on an unreported decision of this Court in MACA No.1384/2011, wherein it has been held that when policy of the insurance of the offending vehicle is an 'Act Only' policy, the Insurance Company is not saddled with any liability to indemnify the insured. He also placed reliance on the decision of the Hon'ble Supreme Court in **Jagtar Singh @ Jagdev Singh vs Sanjeev Kumar and others [(2018 (15) SCC 189]** and contended that, when the vehicle is covered by an 'Act Only' policy, there is no question of the Insurance Company paying and recovering any amount from the insured. 6 MACA 2251 of 2012 11. The learned counsel appearing for the first respondent, on the other hand, relied on the decision of the Hon'ble Supreme Court in **National Insurance Co.Ltd vs Saju P.Paul and another [2013(2) SCC 41]** and a plethora of subsequent decisions and contended that, the Hon'ble Supreme Court has succinctly laid down the law that even if it is an 'Act Only' policy, the Insurance Company is liable to pay the injured and recover it from the insured. 12. The sole question that emerges for consideration in this appeal is whether the Insurance Company is liable to pay any amount as compensation, as per the award, in view of the specific conditions in Ext B1 policy. 13. The Tribunal, in paragraph 8 of the impugned award, has held that in view of Ext B1 policy, the appellant is liable to pay the compensation to the first respondent and then recover the same from respondents 2 and 3. 14. The appellant had categorically pleaded in the written statement that the policy is an 'Act Only' policy and that the first respondent was a gratuitous passenger and, 7 MACA 2251 of 2012 therefore, the appellant is not liable to pay any amount as compensation. 15. In fact, the assertion in the written statement filed by the appellant is not in conformity with the terms and conditions of Ext B1 policy. I say this because, the stand of the appellant in the written statement is that it is totally exonerated of any liability being an 'Act Only' policy, Whereas, on a closer scrutiny of Ext.B1 policy, it is seen that the Insurance Company is liable to pay compensation subject to the maximum of Rs 1,00,000/- per passenger, up to a maximum of five passenger, for those injuries mentioned in the table mentioned in IMT No.16, which is extracted above. However, no such issue was formulated or adjudicated by the Tribunal. 16. When the appellant had taken a specific contention in the written statement, that Ext B1 policy is an 'Act Only' policy, I am of the definite view that it was the bounden duty of the Tribunal to have formulated an issue on the said question and decided the same, instead of perfunctorily arriving at a conclusion, that the appellant is liable to pay 8 MACA 2251 of 2012 the compensation, dehors the terms and conditions in Ext B1 policy. 17. On an overall appreciation of the pleadings and materials on record, and after having heard the learned counsel appearing for the respective parties, I hold that the Tribunal has not appreciated the contention of the appellant in the written statement that it is not liable to pay any amount as compensation as the policy being an 'Act Only' policy. In the said circumstances, I set aside the finding of the Tribunal that the appellant is liable to pay the compensation to the 1[st] respondent. 18. In the result, I allow the appeal by setting aside the impugned award to the extent that it has found that the appellant liable to pay compensation in terms of Ext B1 policy. O.P (MV) No.868/2005 is remitted back to the Tribunal for fresh consideration in respect of the issue whether Ext B1 policy is an 'Act Only' policy and the liability of the appellant is confined to the terms and conditions in Ext B1, especially IMT Nos 16 and 29. The parties are at liberty to adduce additional evidence to substantiate their 9 MACA 2251 of 2012 respective contentions on the said issue. Considering the fact that the claim petition was filed in the year 2005, I direct the Tribunal to complete the whole exercise and decide the case as expeditiously as possible and at any rate within a period of four months from the date of appearance of the parties. The parties are directed to appear before the Tribunal on 5.10.2020. Sks/14.9.2020 **Sd/C.S.DIAS JUDGE**