The Oriental Insurance Company Limited v. Chandran S/O Krishnan and C.M. Shaji S/O Ahammed Kutty

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **WEDNESDAY, THE 15[TH] DAY OF NOVEMBER 2023 / 24TH KARTHIKA,** ## **1945** **MACA NO. 699 OF 2015** **AGAINST THE ORDER/JUDGMENT OPMV 601/2013 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL TIRUR** ## **APPELLANT/3RD RESPONDENT:** THE ORIENTAL INSURANCE COMPANY LIMITED MANJERI NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METROL PALACE, KOCHI 18. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## **RESPONDENT/S:** 1 CHANDRAN S/O.KRISHNAN, UDINIKARA HOUSE, EDAPPAL P.O., NOW RESIDING AT C/O.KESAVAN, VALLISSERY HOUSE, RAMAVARMAPURAM P.O., VILLADOM, THRISSUR DISTRICT. 2 C.M.SHAJI S/O.AHAMMED KUTTY, CHERIYAVALAPPIL HOUSE, VATTAKULAM, TIRUR P.O., MALAPPURAM DISTRICT, PIN - 676 318. BY ADVS. SRI.A.R.NIMOD SRI.Y.JAFAR KHAN SRI.T.C.SURESH MENON SRI.SANTHEEP ANKARATH ## **OTHER PRESENT:** R2 - SRI.SANTHEEP ANKARATH, R1 - SRI.A.R.NIMOD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No. 699 of 2015 2 ## **JUDGMENT** The appellant is the 3[rd] respondent in O.P.(MV).No.601 of 2013 on the file of the Motor Accidents Claims Tribunal, Tirur. The said claim petition was submitted by the 1[st] respondent herein seeking compensation for the injuries sustained to him in a motor accident that occurred on 04.09.2005. The accident occurred when the auto-rickshaw driven by the 2[nd] respondent in the claim petition was hit by a car bearing Registration No.KL-10-V-5482. The said vehicle was owned by the 2[nd] respondent herein. The claim petition was submitted in such circumstances seeking compensation. 2. The 2[nd] respondent herein, the owner of the car, filed a written statement contending that the vehicle was duly insured with the appellant herein. It was also averred that the cheque he issued towards the payment of the insurance premium was dishonoured, and it was intimated to him after the accident. He also disputed the quantum of compensation. 3. The appellant herein, the 3[rd] respondent before the Tribunal, filed a written statement, contending that though an insurance policy was issued in favour of the 2nd respondent M.A.C.A No. 699 of 2015 3 herein, the cheque issued by the 2nd respondent towards premium dishonoured for want of sufficient funds in his account. Thereafter, the matter was informed to the 2[nd] respondent herein by the appellant, and the policy was cancelled. Therefore, it was contended that the appellant had no liability to indemnify the 2[nd] respondent herein, and thus, they sought exoneration from the liability. 4. Evidence in this case consists of Exts.A1 to A8 from the side of the claimants and from the side of the appellant, Exts.B1 to B6 were marked. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2[nd] respondent herein. With regard to the contention raised by the Insurance Company, the Tribunal arrived at a conclusion that the appellant failed to produce any document intimating that the notice of cancellation of policy was served to the 2[nd] respondent/insured before the date of the accident and, therefore, the prayer sought by the appellant for exoneration from the liability was rejected. Thus, the appellant was directed to deposit the amount awarded by the Tribunal at the first instance, and they were permitted to recover the said amount from the 2[nd] M.A.C.A No. 699 of 2015 4 respondent herein. The quantum of compensation was fixed as Rs.98,000/- and the appellant was directed to deposit the said amount along with interest at the rate of 9% per annum from the date of petition till realization, subject to the right of recovery as mentioned above. This appeal is submitted by the appellant/3[rd] respondent in such circumstances challenging the award passed by the Tribunal to the extent it directed the appellant to deposit the amount awarded at the first instance. 5. Heard Sri. Mathews Jacob, learned Senior Counsel for the appellant and Sri. A.R. Nimod, learned counsel for the 1[st] respondent and Sri.Sandeep Ankarath, learned counsel for the 2[nd] respondent. 6. The learned Senior Counsel contends that to substantiate the fact that the cheque issued by the 2[nd] respondent towards the payment of premium dishonoured for want of sufficient funds in his account, ample materials were produced before the Tribunal. Ext. B1 is the copy of the policy which was cancelled, Ext.B2 is the cheque issued by the 1[st] respondent towards premium, Ext.B4 is the memo received by the appellant from their bank, intimating the dishonour of cheque, B3 is the M.A.C.A No. 699 of 2015 5 certified copy of the receipt issued by the appellant while accepting the cheque towards premium, and Ext. B5 is the registered letter dated 01.08.2005 issued by the appellant to the insured intimating the cancellation of the policy. 7. The specific contention put forward by the learned senior counsel is that the said documents would clearly indicate that the requirements for cancellation of policy at the instance of the appellant have been complied with and, therefore, the Tribunal should have exonerated the appellant from the liability to pay the compensation instead of mulcting with them the initial responsibility to satisfy the award and later to get the amount recovered from the insured. The learned senior counsel also brought the attention of this Court to Ext.B6 which is the certified copy of a common award passed in O.P(M.V) Nos.45,46,59 and 60 of 2006 wherein the claim petitions arose from the very same incident, were disposed of by the very same Tribunal. In the said common award, the said issue was considered by the Tribunal, and the insurance company was exonerated from the liability after arriving at the finding that the policy was cancelled before the date of the accident. Despite the common award marked in M.A.C.A No. 699 of 2015 6 evidence in the trial, the Tribunal adopted a contrary view, imposing the initial liability upon the appellant, which was an erroneous finding, contends the learned senior counsel. 8. The learned counsel appearing for the 1[st] and 2[nd] respondents opposes the contention. It was pointed out that the documents produced before the Tribunal, at the instance of the appellant, would not prove the satisfaction of the necessary conditions to cancel the policy and therefore, no interference in the award is required. Learned counsel for the 2[nd] respondent further contends that even the right of recovery ordered by the Tribunal itself was wrong since the initial burden to establish the cancellation of policy was not properly discharged by the appellant. 9. I have carefully gone through the records. The Tribunal, while deciding the said issue, took note of the observations made by the Honourable Supreme Court in **United India Insurance Co. Ltd. v. Laxmamma, (2012) 5 SCC 234.** As rightly observed by the Tribunal, as per the aforesaid decision, the Honourable Supreme Court specifically held that, for effecting the cancellation of the policy, the authorised insurer has to intimate M.A.C.A No. 699 of 2015 7 such cancellation to the policyholder, and such cancellation has to reach the insured before the date of the accident. Thus, it is evident that one of the requirements to exonerate the insurance company on the grounds of cancellation of policy is that the intimation regarding the cancellation must have reached the insured before the date of the accident. So, the question that arises here is whether the insurance company has discharged the burden by producing necessary documents in this regard. 10. While considering the aforesaid aspect, one crucial aspect to be noticed is that the insured, the 2nd respondent herein, had filed a written statement before the Tribunal wherein, though he admitted the receipt of intimation regarding the cancellation of the policy, it was his specific case that he received the same only after the date of the accident. Thus, the question whether the appellant served the notice of cancellation before the date of the accident was a disputed question of fact. Since the service of notice of cancellation of policy to the insured before the accident is one of the mandatory requirements for getting exoneration from the liability, the burden to prove the same was on the appellant. Exts.B1 to B5 are the documents relied on by M.A.C.A No. 699 of 2015 8 the appellant to prove the transactions relating to the issuance of cheque towards payment of premium, dishonour of the said cheque for want of sufficient funds, the cancellation of policy consequent to the same and the intimation regarding the cancellation of policy to the insured. Ext.B5 is the letter dated 01.08.2005 claimed to have been issued by the appellant to the 2nd respondent/insured intimating the cancellation of the policy, but there is no document produced by the appellant to show the date of dispatch of the said letter and also the receipt of the same by the 2nd respondent/insurer. There are no documents before this Court to arrive at the conclusion that the notice of cancellation was indeed served upon the insured before the accident date. 11. As observed above, the specific case of the 1st respondent is that he received the notice only after the date of the accident, and since there was a serious dispute on the receipt of the said letter, the failure on the part of the insurance company to establish the exact date of service of notice of the said notice to the insured would be very crucial. In the absence of any evidence to prove the same, it would lead to the conclusion that the appellant failed to discharge the burden of proving the said M.A.C.A No. 699 of 2015 9 aspect. Therefore, I do not find any legal infirmity in the finding entered by the Tribunal in this regard. 12. The learned Senior counsel also contended that in Ext.B6 common award passed by the very same Tribunal, a different view was taken, and a complete exoneration of the insurance company was ordered by holding that the cancellation took effect before the date of the accident. However, the said decision by itself cannot be a ground to accept the contention raised by the appellant in this case. The claimants in the said claim petition were different and the decision therein cannot be an impediment in taking a different view by the Tribunal, as the decision in this regard has to be taken based on the materials placed before the Tribunal. This Court has already found that the appreciation of the materials placed before the Tribunal and the final conclusion arrived at by the Tribunal does not suffer from any legal infirmity. Therefore, I am not inclined to accept the said contentions as well. 13. The learned counsel for the 2nd respondent contended that even the right of recovery ought not to have been granted to the Insurance company. However, the said contention cannot be M.A.C.A No. 699 of 2015 **==> picture [13 x 9] intentionally omitted <==** accepted in this appeal, as they have not challenged the said finding by filing an appeal. In such circumstances, I do not find any merit in this appeal, and accordingly, this appeal is dismissed, confirming the award passed by the Tribunal. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/rpk