High Court of KeralaSingle Judge2007-02-14Remanded for fresh disposal by the Motor Accide...

United India Insurance Co. Ltd. v. Vijayakumar, A. Jasmin Khaja, Ambujakshan & Others, MFA No. 1130 of 2000 (C)

Case / Petition Number:MFA No. 1130 of 2000 (C)

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K.T.SANKARAN
Judgment Date: 2007-02-14
Court Decision / Holding: The common award in O.P.(MV) Nos. 983/1995 and 984/1995 was set aside and remanded for fresh disposal in accordance with law, with directions to consider the coverage question after taking additional evidence; findings that the accident was caused by rash and negligent driving (issue No.1) and the entitlement to and quantum of compensation were not interfered with. The Tribunal is to decide the coverage issue expeditiously, while keeping liability and compensation intact.
Final Disposition: Remanded for fresh disposal by the Motor Accidents Claims Tribunal on the coverage issue, while affirming liability findings and the amount of compensation; directed expeditious disposal and further evidence as needed.

Parties to the Case

Respondents

Vijayakumar, S/O. Achuthan Pillai, Thoppilvilakom Veedu, Alinayara, Thundathil P.O., Thiruvananthapuram (died)
A. Jasmin Khaja, W/o. Khajakhan, T.C.20/1086(1) Kunchalummoodu, Karamana, Thiruvananthapuram
Ambujakshan, S/O. Govinda Panicker, Vattakuzhy, Plavila Puthen Veedu, Karode, Vilappil, Thiruvananthapuram (died)
C. Sulochana, W/o. Late Ambujakshan, Panchikode, Kanneru Puthen Veedu, Athiyannoor, Aralummoodu P.O., Thiruvananthapuram (added R4)
Biju, S/o. Late Ambujakshan, Panchikode, Kanneru Puthen Veedu, Athiyannoor, Aralummoodu P.O., Thiruvananthapuram (added R5)
Smat.MinI Mole, W/o. Late Vijayakumar, Peramchira, Kizhakkumbaghom, Jagada Bhavan, Kazhakuttom P.O., Thiruvananthapuram (added R6)
Anika Vijayakumar (minor), D/o. Late Vijayakumar, represented by mother Mini Mole (Next friend/Guardian)
Smt.Radhamma, M/o. Late Vijayakumar, Peramchira, Kizhakkumbaghom, Jagada Bhavan, Kazhakuttom P.O., Thiruvananthapuram (added R8)

Legal Representation & Advocates

Counsels for Respondents

• Adv. Smt. D. Sajeev (for Addl. R4 & R5)
• Adv. Smt. Madathil S. Anil Kumar
• Adv. Smt. D. Jameela Devi
• Adv. Mohan Jacob George
• Adv. Mani Kurien
• Adv. Thomas Mathew Nellimoottil (for United India Insurance Co. Ltd.)

Case Synopsis & Summary

This appeal arises from Motor Accidents Claims Tribunal, Thiruvananthapuram, where two O.P.(MV) Nos. 983/1995 and 984/1995 sought compensation for injuries to the rider and pillion rider of a motorbike in a collision with a car on 9 April 1994. The Tribunal held that the accident occurred due to rash and negligent driving by the car's driver, and it awarded compensation to the claimants (Rs.12,650 and Rs.22,750) against the third respondent, the United India Insurance Co. Ltd., while holding there was some basis for liability. However, the Tribunal did not conclusively resolve the crucial question of whether a valid insurance policy covered the date of the accident, given Ext.B1 (policy) and Ext.B2 (cover note) suggested a later commencement in April 1994. The insurer argued that there could be a special contractual arrangement in the cover note, supporting a later coverage date, citing decisions such as New India Assurance Co. Ltd. v. Sita Bai and others, Jijubhai Dabhi, and Sunita Rathi; the respondents contended that a later commencement could not be fixed. The High Court remanded the matter for fresh disposal on the coverage issue, directing the Tribunal to admit further evidence and decide coverage in light of law, while affirming the liability finding and the compensation. The case thus presents a remand on the crucial coverage issue with liability and compensation confirmed.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants (original petitioners) contended that the accident occurred with the car driver’s rash and negligent driving and that there existed or ought to exist policy coverage. They pressed that the policy coverage could be determined with Ext.B1 and Ext.B2 and that the date of commencement might be governed by a special contract or cover note, arguing that the Tribunal should determine the coverage after considering all evidence, including any special contractual arrangements, to ensure compensation under the Motor Vehicles Act.

Contentions of Respondents

The insurer argued that there was no policy coverage on the date of the accident (9.4.1994) and that Ext.B2 fixed a coverage from 11.4.1994; reliance was placed on established jurisprudence allowing special contracts in cover notes but contending that a later date cannot be fixed unilaterally. Respondents cited New India Assurance Co. v. Sita Bai, Jijubhai Dabhi, and Sunita Rathi to justify a potential special contract, while the opposing side relied on Kerala High Court and other authorities to oppose late-date coverage. The court was urged to remand for a factual determination of coverage with additional evidence.”},

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
New India Assurance Co. Ltd. v. Sita Bai and others	(1999) 7 SCC 575	Mentioned Only	Cited by appellant to support the possibility of a special contract fixing coverage date; court did not expressly adopt or apply it.
M/s.National Insurance Co. Ltd. v. Smt. Jijubhai Nathuji Dabhi and others	(AIR 1997 SC 2147)	Mentioned Only	Cited by appellant; not directly invoked in the judgment's reasoning.
Oriental Insurance Co. Ltd. v. Sunita Rathi and others	(AIR 1998 SC 257)	Mentioned Only	Cited in argument; no explicit treatment in the judgment.
AIR 1990 Kerala 202	NULL	Mentioned Only	Cited by respondents as authority; the judgment does not analyze or distinguish it.
2006 (3) KLT SN Case No.39	NULL	Mentioned Only	Cited as authority; no direct treatment in the judgment.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 14TH FEBRUARY 2007 / 25TH MAGHA 1928 ## **MFA.No. 1130 of 2000(C)** OPMV.983/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM APPELLANT: 3RD RESPONDENT: UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, XAVIER BUILDINGS, NAGERCOIL, REPRESENTED BY ITS ASSISTANT MANAGER, UNITED INDIA INSURANCE COMPANY LTD., THIRDPARTY CLAIMS CELL, IV, VETTUKATTIL BUILDINGS, JOSE JUNCTION, KOCHI – 16. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL RESPONDENTS: APPLICANT & RESPONDENTS 1 & 2: 1. VIJAYAKUMAR, S/O.ACHUTHAN PILLAI, THOPPILVILAKOM VEEDU, ALINAYARA, THUNDATHIL P.O., THIRUVANANTHAPURAM, (DIED) 2. A.JASMIN KHAJA, W/O.KHAJAKHAN,T.C.20/1086(1) KUNCHALUMMOODU, KARAMANA, THIRUVANANTHAPURAM. 3. AMBUJAKSHAN, S/O.GOVINDA PANICKER, VATTAKUZHY, PLAVILA PUTHEN VEEDU, KARODE, VILAPPIL, THIRUVANANTHAPURAM (DIED) - ADDL.4. C.SULOCHANA, W/O.LATE AMBUJAKSHAN, PANCHIKODE, KANNERU PUTHEN VEEDU, ATHIYANNOOR, ARALUMMOODU P.O., THIRUVANANTHAPURAM. - “ 5. BIJU, S/O.LATE AMBUJAKSHAN, PANCHIKODE, KANNERU PUTHEN VEEDU, ATHIYANNOOR, ARALUMMOODU P.O., THIRUVANANTHAPURAM. - “ 6. SMAT.MINI MOLE, W/O.LATE VIJAYAKUMAR, PERAMCHIRA, KIZHAKKUMBAGHOM, JAGADA BHAVAN, KAZHAKUTTOM P.O., THIRUVANANTHAPURAM. - “ 7. ANIKA VIJAYAKUMAR (MINOR), D/O.LATE VIJAYAKUMAR, REPRESENTED BY NEXT FRIEND AND GUARDIAN MOTHER SMT. MINI MOLE, OF -DO- -DO- - “ 8. SMT.RADHAMMA, M/O.LATE VIJAYAKUMAR, PERAMCHIRA, KIZHAKKUMBAGOM, JAGADA BHAVAN, KAZHAKUTTOM P.O., THIRUVANANTHAPURAM. ADDL.R4 & R5 ARE IMPLEADED VIDE ORDER DATED 3.7.2002 ON C.M.P.NO.1132/2002. ADDL.R6 TO R8 ARE IMPLEADED VIDE ORDER DATED 27.3.2006 I.A.NO.2180/2003. R2 BY ADV. SRI.MOHAN JACOB GEORGE SRI.MANI KURIEN R4 & R5 BY ADV. SRI.D.SAJEEV SRI.MADATHIL.S.ANIL KUMAR SMT.D.JAMEELA DEVI THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14/02/2007, ALONG WITH MFA NO. 1131 OF 2000 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.M.P.NO.6448/2000 IN M.F.A.NO.1130/2000** ## DISMISSED 14/2/2007 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// ahz/ ## **K.T. SANKARAN, J.** **-----------------------------------M.F.A.NO. 1130 & 1131 OF 2000 -----------------------------------Dated this the 14[th] day of February,2007** ## **JUDGMENT** Appellant is the third respondent in O.P.(MV) Nos.983 of 1995 and 984 of 1995, on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram. The applicants in the Original Petitions were travelling on a motor bike, bearing Registration No.KET.9634 on 9.4.1994, when the accident occurred. The Ambassador car, bearing Registration No.KEE.2102, driven allegedly in a rash and negligent manner, by the second respondent before the court below, hit on the motor bike. The rider and pillion rider of the motor bike sustained injuries and they claimed compensation of Rs.60,000/- and Rs.1,20,000/- respectively. **==> picture [397 x 12] intentionally omitted <==** liability as there was no policy coverage on the date of accident, namely, 9.4.1994. It was contended that Ext.B1 policy is effective from 11.4.1994 to 10.4.1995. ## M.F.A.Nos.1130 & 1131 of 2000 :: 2 :: Ext.B2 is the Cover Note issued on 9.4.1994 stating that the effective date and time of commencement of insurance for the purpose of the Act would be 11.4.1994. 3. The Tribunal found that the accident occurred due to the rash and negligent driving of the car by the second respondent in the Original Petitions (third respondent in these appeals). The Tribunal also found that the applicants before it are entitled to compensation. A common award was passed and the Tribunal held that the petitioner in O.P.(MV) No.983 of 1995 is entitled to realise a sum of Rs.12,650/- as compensation from the appellant herein. Similarly, it was held that the petitioner in O.P.(MV) No.984 of 1995 is entitled to recover an amount of Rs.22,750/- and that the third respondent in the Original Petitions is liable to pay the amount. 4. Learned counsel appearing for the appellant submitted that the Tribunal did not consider the ## M.F.A.Nos.1130 & 1131 of 2000 :: 3 :: contentions raised by the appellant with reference to Exts.B1 and B2 and the evidence on record. There is no discussion at all in the judgment as to whether there was valid policy as on the date of the accident. He relied on the decision in **New India Assurance Co. Ltd.** v. **Sita Bai and others** ((1999) 7 SCC 575) and contended that there could be a special contract in the cover note/policy and the date of commencement of the coverage would be what is agreed between the parties as per the special contract. He also relied on the decisions in **M/s.National Insurance Co. Ltd.** v. **Smt.Jijubhai Nathuji Dabhi and others** (AIR 1997 SC 2147) and **Oriental Insurance Co. Ltd** . v. **Sunita Rathi** **and others** (AIR 1998 SC 257). The learned counsel for the second respondent, on the other hand, relied on the decision in AIR 1990 Kerala 202 and 2006 (3) KLT SN Case No.39 and contended that there could be no agreement fixing the date of coverage at a later point of time. 5. Since the Tribunal has not decided the ## M.F.A.Nos.1130 & 1131 of 2000 :: 4 :: disputed question of fact based on the evidence adduced in the case, I am of the view that the Tribunal should be directed to consider the case on the merits touching upon this point, taking into account the relevant facts and evidence on record. The counsel appearing for the parties submitted that they may be afforded an opportunity to adduce such other evidence to substantiate their respective contentions. The Tribunal shall allow the parties to adduce such other evidence, either documentary or oral or both, and decide the question of coverage after adverting to all the relevant facts. In the result, the common award passed by the Tribunal in O.P.(MV) Nos.983 of 1995 and 984 of 1995 are set aside and the matter is remanded for fresh disposal in accordance with law and in the light of the observations contained above. It is made clear that the finding on issue No.1 that the accident occurred due to the rash and negligent driving of the car by the second respondent in the O.P.(MV)Nos.983 and 984 of ## M.F.A.Nos.1130 & 1131 of 2000 :: 5 :: 1995 is confirmed. The finding of the Tribunal that the applicants before it are entitled to compensation, and the amount of compensation fixed by the Tribunal, are also not being interfered with in these appeals and those findings are also confirmed. The Tribunal shall dispose of the matter as expeditiously as possible. Parties shall appear before the Tribunal on 2.4.2007. **(K.T.SANKARAN) Judge** ahz/ **K.T.SANKARAN, J. ------------------------** **-----------------------M.F.A.NO.1130 OF 2000 and M.F.A.NO. 1131 OF 2000** ## **JUDGMENT** 14[th] February, 2007 ------------------------