Kerala High Court
United India Insurance Company ... vs Aleyamma K. Eliyas on 25 August, 2021
M.A.C.A.No.2859 of 2018 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 25TH DAY OF AUGUST 2021 / 3RD BHADRA, 1943
MACA NO. 2859 OF 2018
AGAINST THE AWARD DATED 30.05.2018 IN OPMV 1424/2011 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA
APPELLANT/3RD RESPONDENT:
UNITED INDIA INSURANCE COMPANY LIMITED
RANNI NOW REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL
OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11.
BY ADVS.
JACOB MATHEW
P.JACOB MATHEW
RESPONDENTS/PETITIONERS AND RESPONDENTS 1 & 2:
1 ALEYAMMA K. ELIYAS
W/O.LATE K.ELIYAS, KUDILIL HOUSE, VAYALATHALA P.O.,
CHERUKOLE VILLAGE, RANNI TALUK, PATHANAMTHITTA
DISTRICT, PIN 689 660.
2 MARY K.ALIYAS,
D/O.LATE K.ELIYAS, KUDILIL HOUSE, VAYALATHALA P.O.,
CHERUKOLE VILLAGE, RANNI TALUK, PATHANAMTHITTA
DISTRICT, PIN 689 660.
3 ELIZABETH K.ALIYAS,
D/O.LATE K.ELIYAS, KUDILIL HOUSE, VAYALATHALA P.O.,
CHERUKOLE VILLAGE, RANNI TALUK, PATHANAMTHITTA
DISTRICT, PIN 689 660.
M.A.C.A.No.2859 of 2018 2
4 GEORGE THOMAS,
S/O.THOMAS, PALLICKAL HOUSE, PUTHAMON, KATTOOR P.O.,
CHERUKOLE VILLAGE RANNI TALUK, PATHANAMTHITTA DISTRICT,
PIN-689650.
5 PRASANNAKUMAR V.G.,
S/O.GOPI C.K., VELLARETHU MEMURIYIL, VAYALATHALA P.O.,
CHERUKOLE VILLAGE, RANNI TALUK, PATHANAMTHITTA
DISTRICT, PIN 689 660.
BY ADVS.
SRI.JACOB P.ALEX
SRI.V.PHILIP MATHEW
SRI.JOSEPH P.ALEX
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 11.08.2021, THE COURT ON 25.08.2021 DELIVERED THE
FOLLOWING:
M.A.C.A.No.2859 of 2018 3
A. BADHARUDEEN, J.
================================
M.A.C.A.No.2859 of 2018
================================
Dated this the 25th day of August, 2021
JUDGMENT
The original 3rd respondent M/s.United India Insurance Company in
O.P(MV).No.1424/2011 on the file of the Motor Accidents Claims Tribunal,
Pathanamthitta is the appellant herein. Liability fastened on the Insurance
Company by the learned Tribunal is the matter under challenge in this appeal
where the original petitioners as well as respondents 1 and 2 were arrayed as
the respondents herein.
2. I would like to refer the parties in this appeal as petitioners and
respondents for brevity and convenience.
3. Epitomized form of the material facts in this case:
One K.Eliyas died in a motor accident occurred on 10.4.2011 at about
8.30 p.m while he was travelling in a truck bearing Registration
No.KL.06.C.2259 driven by the 2nd respondent in a rash and negligent
manner. The legal heirs viz., wife and children, filed application under
Section 166 of the Motor Vehicles Act and claimed Rs.50 lakh as
compensation.
4. First and second respondents filed written statement and opposed
the narration of the accident as alleged by the petitioners. According to them,
the deceased was a pedestrian on the road, who was hit down by the vehicle
which resulted in his death.
5. The 3rd respondent insurance company filed written statement
and admitted the policy. But the liability to pay compensation was disputed
on the ground that the offending vehicle was used for illegal transportation of
sand and Police laid charge under Sections 279 and 304 of I.P.C as well as
under Sections 20 and 21 of the Kerala River Bank Protection (KRBP) Act.
6. The learned Tribunal adjudicated the matter on merits and finally
awarded Rs.7,05,448/- as compensation with 9% interest. The amount was
ordered to be paid by the insurance company being the insurer of the
offending vehicle.
7. The core issue in this matter is denial of exoneration sought for
by the insurance company/3rd respondent on the ground that the vehicle was
used for illegal transportation of sand and the deceased travelled in the
vehicle as a person accompanying illegal sand. Therefore, the company has
no liability to indemnify the insured is the crux of the contention.
8. In support of this contention, the learned counsel for the
insurance company placed reliance on the decisions reported in [2003 (1)
KLT 955], National Insurance Co. Ltd. v. Saidali, [2011(2) KHC 320], New
India Assurance Company Ltd. v. Jameela & Ors. And [2020(4) KHC 623],
Soman v. Jinesh James & Ors..
9. On perusal of the decision in Saidali (supra), the ratio of the
decision is that after the amendment to Section 147(1)(a)(i) of the Motor
Vehicles Act, 1988 it brought the owner of the goods or the representative of
the owner of the goods carried in the goods vehicle within the coverage of act
only policy. But this decision is silent as to illegal transport of goods.
Similarly, in Jameela's case (supra) also, the ratio is confined to the point
that risk of the person who died or sustained injury as the owner of the goods
or the representative of the owner of goods is covered by the insurance policy
issued under S.147 of the Motor Vehicles Act and that a person continues to
be the owner of the goods or representative of owner of goods even while
returning after unloading goods.
10. The subject matter dealt in Jinesh James's case (supra) is totally
on a different footing and the same has no relevance to the point in issue.
11. The learned counsel for respondents 1 and 2, the insured and the
driver, argued that the deceased is not a traveller in the goods vehicle and he
is a pedestrian. Therefore, the policy issued by the company would cover the
risk of the deceased. In fact, this contention is not supported by any
evidence and the evidence available would go to show that the deceased was
travelling in the offending vehicle at the time of accident after carrying sand.
12. The learned counsel for the petitioners pointed out that no
evidence is available in this matter to hold that the vehicle was engaged in
transport of illegal sand at the time of accident. The learned counsel
submitted further that in paragraph No.20 of the award, the Tribunal observed
that though the Police charged offences under Sections 20 and 21 of KRBP
Act on the ground that sand was illegally transported, the said allegation was
not proved as per Ext.B2 judgment thereof. Thus there is no evidence herein
to establish the point that the vehicle was involved in illegal transportation of
sand at the time of accident so as to grant exoneration or recovery right in
favour of the insurance company.
13. Coming to the core issue as to whether the deceased followed
illegal sand in the goods vehicle at the time of the accident, in the written
statement filed by the insurance company Police charge alleging commission
of offence under Section 20 and 21 of KRBP Act is the plank on which such a
contention seen raised after admitting the policy. On perusing Ext.B1 policy
covering the period of accident, the same is a package policy covering the
risk of 2 employees as well. Ext.B1 is the copy of the policy produced by the
insurance company and the same is not so legible. However, Ext.A5
produced from the side of the petitioners also is a copy of the said policy.
Therein under the head `limitations as to use', it is provided that the policy
covers use only under a permit within the M.V Act, 1988 or such a carriage
falling under sub section 30 and 66 of the M.V Act and the policy does not
cover use for a organized racing, pace making, reliability trials and speed
testing.
14. It is pertinent to note that in para.20 of the award, the learned
Tribunal discussed about Ext.B2 certified copy of the judgment in
C.C.1819/14 dated 19.02.2018 whereby the accused was acquitted in the
criminal case subsequent to filing of Ext.A6 final report alleging commission
of offence under Section 20 and 21 of the KRBP Act. The learned counsel
for the insurance company given much emphasis to Ext.A6 Police charge to
contend that the driver of the vehicle was charged under Sections 20 and 21
of the KRBP Act along with offences under Section 279 and 304A of I.P.C
and to substantiate that the vehicle was used for illegal transportation of sand
at the time of the accident. In Ext.A6 police charge, transport of illegal river
sand in the offending vehicle is stated. Separate report alleging commission
of offence under Section 20 and 21 of the KRBP Act also is stated therein. It
appears that Ext.B2 discussed in the award by the Tribunal not seen marked
in the appendix of this award though it was discussed by the Tribunal, may be
due to omission. However, Ext.B2 is available in the case records. The
Tribunal discussed the same to negative the contention of the insurance
company. As such, there is no harm in reading Ext.B2 in evidence. In Ext.B2
judgment dated 09.02.2018, offences under Sections 279 and 304 of the I.P.C
were the offences for which the accused was tried. Thus it appears that the
Magistrate even not took cognizance for the offences under Section 20 and 21
of the Act. On trial, the accused was acquitted for the offences under
Sections 279 and 304 of I.P.C for want of evidence. Thus it has to be held
that the mere allegation in the Police charge as to commission of offence
under Section 20 and 21 of the KRBP Act alone is the substance available
herein.
15. Going by the decisions cited by the learned counsel for the
insurance company, none of the said decisions dealt with use of vehicle for
illegal purposes and the same as a reason to deny coverage. Coming to the
matter in dispute, the Police charge alleging commission of offence under
Section 20 and 21 of the KRBP Act is the only evidence pointed out by the
learned counsel for the insurance company to hold that the vehicle was used
for transporting illegal sand.
16. As per Ext.B2, as I have already discussed, even the Magistrate
not took cognizance for the offences under the KRBP Act and trial was
proceeded for the offences under IPC alone. That also ended in acquittal.
17. The legal position is not in dispute that if the insured vehicle is
used for purposes prohibited as per the terms of the contract of insurance, the
insurer could very well deny contractual obligation to indemnify the insured.
However, in order to succeed such a contention, the said contention must be
proved by support of cogent and convincing evidence. Mere allegations in
the Police charge, which was found against during trial, would not suffice the
proof mandated in this regard.
18. In the factual scenario discussed, there is no convincing evidence
available to justify the contention raised by the learned counsel for the
insurance company as such. The learned Tribunal rightly disallowed either
exoneration or right of recovery claimed by the company for the above
reasons. Therefore, the said finding cannot be interfered at all.
Consequently, the award as such is liable to be confirmed.
19. In the result, the appeal fails and is accordingly dismissed. The
parties are directed to suffer their respective costs.
20. It is submitted by the learned counsel for the petitioners that the
amount awarded not released so far in view of the pendency of this appeal
and direction to the Tribunal may be given to expedite immediate release of
the amount in deposit. The submission appears to be having force.
Therefore, I direct the learned Tribunal to disburse the amount in deposit
without any further delay on receipt or production of the copy of this
judgment.
The insurance company is directed to deposit balance amount, if any,
within one month, facilitating release of the same by the petitioners in the
proportion directed by the Tribunal.
Sd/-
(A. BADHARUDEEN, JUDGE)
rtr/
