New India Assurance Co. Ltd vs Suresh
2021 Latest Caselaw 21492 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR. JUSTICE T.R.RAVI
    FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                      MACA NO. 1654 OF 2016
  AGAINST THE AWARD IN OPMV 2115/2012 OF MOTOR ACCIDENT CLAIMS
                       TRIBUNAL, THRISSUR
APPELLANT/2ND RESPONDENT:

          NEW INDIA ASSURANCE CO. LTD
          PERINCHERY'S BUILDING, ROUND NORTH,
          THRISSUR-680 651, REPRESENTED BY ITS MANAGER,
          REGIONAL OFFICE, ERNAKULAM.
          BY ADV SRI.P.G.GANAPPAN


RESPONDENTS/CLAIMANT AND RESPONDENT No.1:

    1     SURESH
          S/O. RAMAKRISHNAN, MOOTHEDATH HOUSE,
          VELLANIKKARA P.O., THRISSUR DISTRICT.
    2     RAJESH
          S/O. MANI, ULLATTIL HOUSE,
          MANNUTHY P.O., THOTTAPPADY,
          THRISSUR-680 001.
          R1 BY ADVS.
          SRI.P.S.APPU
          SRI.A.R.NIMOD
          SRI.T.C.SURESH MENON



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 15.9.2021, THE COURT ON 29.10.2021 DELIVERED THE FOLLOWING:
                             T.R. RAVI, J.
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                     M.A.C.A. No.1654 of 2016
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             Dated this the 29th day of October, 2021

                              JUDGMENT

The 2nd respondent before the Tribunal, who is the insurer of the

offending vehicle, has filed this appeal being aggrieved by the non-

consideration of their contention that there was violation of policy

conditions and that the appellant is entitled to recover the amount

awarded as compensation from the insured.

2. Heard Sri Ganappan, learned counsel for the appellant and

Sri A.R.Nimod, the learned counsel for the 1st respondent.

3. The counsel for the appellant pointed out that a specific

contention was raised in the written statement that there is violation of

the policy conditions. This fact is noticed by the Tribunal in paragraph

20 of the award. The Tribunal has held that even though such a

contention was taken, nothing stands proved and that in spite of

meticulously going through the evidence on record, there is nothing to

show that there is violation of any conditions of the insurance policy.

The counsel for the appellant pointed out that the above findings are

totally unjustified. The counsel points out that I.A.No.3661 of 2015 was

filed seeking production of the driving licence of the driver of the

offending autorikshaw, but the same was not produced. It is further

pointed out that even though the Tribunal had noticed that Exhibits A6

to A9 show negligence of the driver of the autorikshaw, the Tribunal

failed to notice the fact that the Police had registered crimes not only under Sections 279, 337 and 338 of IPC as observed by the Tribunal,

but also under Section 3(1) read with Section 181 of the Motor Vehicles

Act relating to the absence of license with the driver of the autorikshaw.

A reading of the final report also shows that it has been specifically

stated that the driver of the autorikshaw did not have a valid licence. In

the light of the above evidence, there was no reason for the Tribunal to

come to a conclusion that the insurer has not produced any evidence to

show violation of the conditions of the policy and to deny the right for

recovery. I am hence of the opinion that the appellant is entitled to

succeed in the appeal.

In the result, the appeal is allowed and the award passed by the

Tribunal is modified granting the appellant the right to recover the

amounts paid by them to the claimant in terms of the award, from the

insured.

Sd/-/-

T.R. RAVI JUDGE

dsn