Kerala High Court
Th The Branch Manager, National ... vs Balakrishna on 9 July, 2025
MACA NO. 2483 OF 2010
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 9TH DAY OF JULY 2025 / 18TH ASHADHA, 1947
MACA NO. 2483 OF 2010
AGAINST THE AWARD DATED 20.05.2010 IN OP(MV) NO.203 OF 2005 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD
APPELLANT/3RD RESPONDENT :-
TH THE BRANCH MANAGER,
NATIONAL INSURANCE COMPANY LTD
M.G. ROAD, KASARAGOD.,
REP. BY ITS ANAGER, REGIONAL OFFICE,
M.G. ROAD,, ERNAKULAM.
BY ADV SHRI.SEBASTIAN VARGHESE(K/141/2000)
RESPONDENTS/PETITIONER AND 1ST RESPONDENT AND 14 TO 12 IN O.P.:
1 BALAKRISHNA, S/O. KESAVA, KUNTANGARADKA HOUSE,,
KIDOOR VILLAGE, KASARAGOD TALUK AND DIST-671321.
2 SURESH.B. SO. B.N. BABU, BARADKA HOUSE, VILLAGE
PERDALA,, P.O. PERDALA-670354.
3 RUKIYA, W/O. LATE ABDUL KHADEER, DEENARNAGAR,
NOCHIPADAPU,, THALANGARA.P.O.,
KASARAGOD TALUK AND DIST-671317.
4 SHEREEF, S/O.LATE ABDUL KHADEER, DEENARNAGAR,
NOCHIPADAPU,, THALANGARA.P.O.,
KASARAGOD TALUK AND DIST-671317.
5 SAMAD, S/O.LATE ABDUL KHADEER, DEENARNAGAR,
NOCHIPADAPU,, THALANGARA.P.O.,
KASARAGOD TALUK AND DIST-671317.
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6 ASIM, S/O.LATE ABDUL KHADEER, DEENARNAGAR,
NOCHIPADAPU,, THALANGARA.P.O.,
KASARAGOD TALUK AND DIST-671317.
7 BHASEER, S/O.LATE ABDUL KHADEER, DEENARNAGAR,
NOCHIPADAPU,, THALANGARA.P.O.,
KASARAGOD TALUK AND DIST-671317.
8 GAFOOR, S/O.LATE ABDUL KHADEER, DEENARNAGAR,
NOCHIPADAPU,, THALANGARA.P.O.,
KASARAGOD TALUK AND DIST-671317.
9 NOUSHAD, S/O.LATE ABDUL KHADEER, DEENARNAGAR,
NOCHIPADAPU,, THALANGARA.P.O.,
KASARAGOD TALUK AND DIST-671317.
0 SUMAYYA, D/O.LATE ABDUL KHADEER, DEENARNAGAR,
NOCHIPADAPU,, THALANGARA.P.O.,
KASARAGOD TALUK AND DIST-671317.
11 SAMEEMA, D/O.LATE ABDUL KHADEER, DEENARNAGAR,
NOCHIPADAPU,, THALANGARA.P.O.,
KASARAGOD TALUK AND DIST-671317.
BY ADVS.
SHRI.D.KRISHNA PRASAD
SRI.I.V.PRAMOD
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 12.06.2025. THE COURT ON 09.07.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
This appeal is filed by the appellant/3 rd respondent, insurer in
O.P (MV) No.203 of 2005 on the file of the Motor Accidents Claims
Tribunal, Kasargod. The respondents herein are the petitioner and
respondents 1 and 4 to 12 before the tribunal.
2. Brief facts of the case is as follows :-
On 31.03.2004 at about 10.20 am, while the petitioner was
travelling in an auto rickshaw bearing registration No.KL-S-487 driven
by the 1st respondent in a rash and negligent manner suddenly, it
overturned. As a result of the accident, the petitioner has sustained
serious injuries. The appellant approached the tribunal claiming a
total compensation of ₹1,00,000/-.
3. Respondents 1, 2 and 3 are the driver, owner and insurer
respectively. The 1st respondent entered appearance but did not file
any written statement. The 3rd respondent - insurer filed a written
statement, admitting the policy but disputing the seating capacity of
the vehicle. Before the tribunal, no oral evidence was adduced on
either sides. Exts.A1 to A5 and Exts.B1 to B7 were marked. The
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tribunal, after analysing the pleadings and materials on record,
awarded a sum of ₹55,950/- as compensation under different heads
with interest @7.5% per annum from the date of petition till realization
with proportionate costs from the 3 respondent insurer. Dissatisfied
with the compensation awarded by the tribunal, the insurance
company has come up in appeal.
4. Heard the learned standing counsel for the appellant.
Though notice was served on respondents 1, 3, and 8, they appeared
through counsel. Respondents 4 to 7 and 9 to 11 chose not to appear
before this Court. The 2nd respondent, who is the driver of the vehicle,
was served with notice but chose to remain ex parte.
5. The learned standing counsel appearing for the insurer
contested the award mainly on two grounds :-
(1) There was suppression of material facts by the insured at
the time of obtaining the policy.
(2) Ext.B1 policy was an act only policy and hence there was
no liability for the insurer to pay any amount.
6. The learned standing counsel appearing for the insurance
company submitted that the policy was taken in the name of one Abdul
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Khader, who was the original 2nd respondent in the Original Petition
and the policy was taken for the period from 30.10.2003 to 29.10.2004
in respect of the vehicle bearing registration No.KL-S-0487. The afore
Abdul Khader expired on 13.04.2001. At the time of taking the policy,
the insurer was not informed about the death of the insured, Abdul
Khader and therefore, submitted that the policy was obtained
suppressing material facts. It was also their contention that Ext. B1
policy was an Act Only Policy and that they had no liability to
compensate a passenger in the goods vehicle, since the seating capacity
was only for one, including the driver.
7. The learned counsel appearing for respondents 3 and 8 the
legal heirs of Abdul khader, submitted that the vehicle was not in the
custody of the legal heirs and was transferred during the lifetime of
Abdul Khader. The legal heirs were not aware of the details of the
present owner of the vehicle nor the accident. It was only on receipt of
the notice that they came to know that the vehicle met with an accident
and the registration of the vehicle was not transferred. Hence,
contended that they are not liable to compensate the claimant.
8. The learned counsel appearing for the claimant and
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respondents 3 and 8 submitted that no such contention was raised by
the insurer before the Tribunal, that the policy was an Act Only Policy.
The afore contention was first raised in the appeal only and hence the
insurer cannot not be permitted to raise contention that the policy was
an Act Only Policy.
9. I have considered the rival contentions raised by both
sides.
10. Firstly, the contention of the insurer is that there was
suppression of material facts while obtaining the policy for the vehicle
bearing registration No. KL-S-0487 for the period from 30.10.2003 to
29.10.2004. During the relevant period, the policy was issued in the
name of Abdul Khader. The death certificate produced as Ext. B3
reveals that Abdul Khader passed away on 13.04.2001, which is two
years prior to the date of obtaining the policy. If the insurance company
had been informed about the death of the insured, the insurer certainly
would not have issued a policy in the name of a deceased person. No
document has been produced by the legal heirs of the deceased to
prove that they have intimated the insurance company regarding the
death of the insured. As per sub-section 2(b) of Section 149 of the
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Motor Vehicles Act, 1988 reads as follows :-
(2) xxxxxx
(a) xxxx
(b) that the policy is void on the ground that it was obtained
by the non-disclosure of a material fact or by a
representation of fact which was false in some material
particular.
11. The question is whether the non disclosure of death of
the insured was a material fact or not. There is no doubt that the death
of the insured ought to have been intimated to the insurer, and the
failure to do so amounts to suppression of a material fact.
12. Though it is stated by the legal heirs of the owner that
the vehicle was sold even prior to the death of Abdul Khader, the same
is not substantiated by producing any documents. On a perusal of
Ext.B2 - the registration certificate, it is seen that the registration of
the vehicle still remains in the name of Abdul Khader. Hence, I find
that there was suppression of material facts for not disclosing
regarding the death of the registered owner of the vehicle and thus, the
insurance policy is found to be void. On a perusal of Ext.B1 - the
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insurance policy, it is seen that it is an Act Only Policy. Since the
deceased was an additional passenger in the goods auto, he is not
covered under Ext.B1 policy. As per Ext.B2, the seating capacity of the
vehicle is only one. The deceased was a gratuitous passenger in the
goods auto. Since the policy was an Act Only Policy, the insurance
company cannot be held liable to pay the compensation awarded by the
tribunal. The issue regarding the liability of the insurer was considered
elaborately in New India Assurance Co. Ltd. v. Daisy Paul & Another
[2021 (2) KHC 449] in which this Court elaborately considered the
judgments of the apex court in New India Assurance Co. Ltd. v. Asha
Rani [2003 KHC 22], Jagdev Singh v. Sanjeev Kumar & others [2018
KHC 7138], United India Insurance Co. Ltd. v. Tilak Singh [2006 (2)
KLT 884 (SC)] and National Insurance Co. Ltd. v. Saju P. Paul &
Another [2013 KHC 4013] and found that if the policy is "act only"
policy and no additional premium is paid to cover the passengers of the
vehicle, the policy will not cover the gratuitous passengers in the said
vehicle and the insurer is not liable to pay compensation.
13. Therefore, the finding of the tribunal directing the insurance
company to pay the awarded amount is liable to be set aside
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In the result, the appeal is allowed and the finding of the
tribunal directing the insurer to pay the compensation amount is
hereby set aside.
sd/-
SHOBA ANNAMMA EAPEN
JUDGE
SMA
