Reliance General Insurance Co. Ltd. v. Santhoshkumar s/o Chandran Nair; Murali s/o Sukumaran; Sajitha Kaleel W/o Kaleel

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 05TH DAY OF NOVEMBER 2020 / 14TH KARTHIKA, 1942** ## **MACA.No.2881 OF 2014** **AGAINST THE AWARD IN OPMV 519/2009 DATED 30-07-2014 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH PARAVUR** ## **APPELLANT/S:** **RELIANCE GENERAL INSURANCE CO. LTD, THRISSUR REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, ERNAKULAM.** **BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI** ## **RESPONDENT/S:** **1 SANTHOSHKUMAR S/O. CHANDRAN NAIR, BINDHU NIVAS, KOZHIPPILLY HOUSE, ARANKAVU, MANAKKODAM KARA, CHENDAMANGALAM VILLAGE - 683 512. 2 MURALI S/O. SUKUMARAN, KELOOR CHERUVILA HOUSE, NEAR KOLOOR ANGANVADI, ELAMBA KARA, VALAKKATTU, ERAKKODI VILLAGE, CHIRAYANKEEZHU TALUK, THIRUVANANTHAPURAM - 695 304.** **3 SAJITHA KALEEL W/O. KALEEL, HOUSE NO. 31 44/2521, LAKE TERRAC APARTMENTS, CONVENT ROAD, PONNURASNI, KOCHI - 682 019.** **R1 BY ADV. SRI.ANCHAL C.VIJAYAN R1 BY ADV. SRI.SHAFIK M.A.** MACA.No.2881 OF 2014 **==> picture [18 x 7] intentionally omitted <==** **R3 BY ADV. SRI.M.A.SHAFIK** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-10-2020, THE COURT ON 05-11-2020 DELIVERED THE FOLLOWING:** MACA.No.2881 OF 2014 **==> picture [17 x 9] intentionally omitted <==** ## **JUDGMENT** ## **Dated this the 5[th] day of November, 2020** ― ― The 3[rd] respondent the insurance company in O.P.(M.V).No.519 of 2009 of the Motor Accidents Claims Tribunal, North Paravur is the appellant. The 1[st] respondent was the claimant and respondents 2 and 3 were the respondents 1 and 2 in the claim petition. The parties are, for the sake of convenience, referred to as per their litigant status in the claim petition. 2. The petitioner had filed the claim petition, inter alia, contending that, on 18.01.2009, while he was travelling on his motorcycle bearing Registration No.KL7/AY-5226, on the Paravur – Kodungalloor road, the lorry bearing the Registration No.KL-7/BG-8690, driven by the 1[st] respondent in a rash and negligent manner, hit the motorcycle causing serious injuries to the petitioner. The 2[nd] respondent is the registered owner of the lorry (offending vehicle) and the 3[rd] respondent is the insurer. MACA.No.2881 OF 2014 **==> picture [18 x 9] intentionally omitted <==** The respondents are jointly and severally liable to pay compensation to the petitioner, which he had quantified at Rs.29,95,000/-, but limited it to Rs.20,00,000/-. 3. Even though the 1[st] respondent entered appearance, he did not choose to file any written statement. The 2[nd] respondent was set ex parte. 4. The 3[rd] respondent filed a written statement, inter alia, contending that, although the offending vehicle was insured with the 3[rd] respondent for the period from 08.01.2009 to 07.01.2010 vide Exhibit B-1 cover note, but as the 2[nd] respondent did not pay the premium, the 3[rd] respondent did not hand over the cover note to the 2[nd] respondent. Instead the 3rd respondent cancelled the same. Subsequently, the 2[nd] respondent approached the 3[rd] respondent and took a fresh policy bearing No.2204782334002506 for the period from 20.02.2009 to 19.02.2010. 5. The petitioner was examined as PW1 and the MACA.No.2881 OF 2014 **==> picture [17 x 8] intentionally omitted <==** Investigating Officer was examined as PW2. Exhibits A-1 to A-11 series were marked on their side. Exhibit B-1 was marked on the side of the 3[rd] respondent. Exhibits X-1 and X-2 were marked as court exhibits. 6. The Tribunal, after considering the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by awarding the petitioner a compensation of Rs.10,66,200/-with interest at the rate of 8% per annum from the date of petition till realisation along with proportionate cost of Rs.13,000/. The 3[rd] respondent was directed to pay and then recover the compensation amount from the 2[nd] respondent. 7. Aggrieved by the impugned award, directing the 3[rd] respondent to pay and recover the compensation, the said respondent has preferred this appeal, on the ground that it had to be totally exonerated from any liability as there was no valid insurance coverage for the offending vehicle. MACA.No.2881 OF 2014 **==> picture [18 x 8] intentionally omitted <==** 8. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the 1[st] respondent. 9. The learned counsel appearing for the appellant argued that as on the date of accident i.e. 18.01.2009, there was no valid insurance coverage for the offending vehicle and, therefore, the appellant was not liable to indemnify the insured. Exhibit-B1 cover note was cancelled by the insurer and it could not be mulct with any liability, as erroneously held by the Tribunal. 10. The learned counsel appearing for the 1[st] respondent, on the other hand, argued that the question in the appeal was no longer res-integra in view of the law laid by the Hon’ble Supreme Court in **National Insurance Co. Ltd. v. Balkar Ram and Others** [2013 ACJ 2416]. The Supreme Court while while dealing with a case of identical nature, has held that the dishonour of a cheque will not exonerate the insurance company from MACA.No.2881 OF 2014 **==> picture [17 x 8] intentionally omitted <==** indemnifying the insured. The learned counsel also relied on the earlier judgments of the Hon’ble Supreme Court in **New India Assurance Co. Ltd v. Rula and others** [(2000) 3 SCC 195], **National Insurance Company v. Abhaysing P. Waghela** [2008 (4) KLT 657 (SC)] **Mangla Ram v. Oriental Insurance Company Ltd and others** [(2018) 5 SCC 656] and a Full Bench decision of this Court in **Oriental Insurance Co.Ltd v. Sivankutty and others** [2006 ACJ 106]. The learned counsel argued that the entire burden of proof was on the appellant to substantiate that there was no valid insurance coverage as on the date of accident. According to him, the appellant had issued the cover note on 08.01.2009. The foot note on the first page of Exhibit B-1 unambiguously establishes that the validity of the cover note was for 60 days from the date of issue i.e. on 08.01.2009. The appellant has candidly admitted in written statement that it had renewed and issued the insurance policy on MACA.No.2881 OF 2014 **==> picture [18 x 8] intentionally omitted <==** 20.02.2009, which is well within the sixty days time period from the date of issuance of the cover note. Therefore, the defence set up by the insurance company is frivolous and the appeal is only to be dismissed. 11. The sole question that emerges for consideration in this appeal is whether the insurance company is liable to pay the compensation to the 1[st] respondent claimant and then recover the same from the insured. 12. The Hon'ble Supreme Court in **Balkar Ram** , **Rula and others** , **Abhaysing P. Waghela** and **Mangla Ram,** has succinctly laid down the law that the insurance company cannot shirk away its liability to pay compensation by contending that it did not receive premium from the insured. 13. On an analysis of the facts of the case, it is crystally clear that Exhibit B-1 cover note was issued by the insurance company on 08.01.2009. The foot note in MACA.No.2881 OF 2014 **==> picture [18 x 9] intentionally omitted <==** page No.1 of Exhibit B-1, specifies that the validity of the cover note was 60 days. Although the appellant took a plea that the insured had not paid the premium, it is admitted that the insured subsequently paid the premium and the appellant renewed the policy by issuing policy certificate No. 2204782334002506 valid for the period from 20.02.2009 to 19.02.2010. 14. Therefore, when reading the language in the foot note in Exhibit B-1 and the subsequent issuance of the policy on 20.02.2009, well within the 60 days time frame, it is deemed that Exhibit B-1 cover note was valid as on the date of accident so far as the 1[st] respondent/third party is concerned. Moreover, PW-2 has specifically admitted that Exhibit B-1 was in force and was valid. Also, the appellant has not let in any contra evidence to substantiate the allegations in the written statement. On a re-appreciation of the facts and law laid down MACA.No.2881 OF 2014 **==> picture [22 x 7] intentionally omitted <==** in the authoritative precedents quoted supra, I am of the considered opinion that the impugned award passed by the Tribunal directing the appellant to pay and recover the compensation from the 2[nd] respondent is legal and correct. I do not find any ground or circumstances warranting interference by this Court. Leaving open the right of the appellant to pay the compensation to the 1[st] respondent and then recover the compensation from the 2[nd] respondent, untrammeled by any observation made in this judgment, the appeal is dismissed. Sd/- **C.S.DIAS** **JUDGE** kkj