Kerala High Court

Toy Mathew vs Annamma Mathew on 4 November, 2025

                                                 2025:KER:82576



           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

TUESDAY, THE 4TH DAY OF NOVEMBER 2025 / 13TH KARTHIKA, 1947

                     MACA NO. 271 OF 2013

        AGAINST THE AWARD DATED 29.03.2012 IN OPMV NO.979 OF

2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM

APPELLANTS/RESPONDENTS 1 & 2:

    1      TOY MATHEW
           S/O MATHAI, PADINJAREKALAYIL HOUSE,
           SOUTH PAMPADY, KOTTAYAM

    2      MINI ABRAHAM
           MYLAKKATTU HOUSE, VELLOOR P.O.
           PAMPADY

           BY ADV SRI.K.P.SUJESH KUMAR


RESPONDENTS/CLAIMANT AND RESPONDENTS 3 TO 5:

    1      MINI TOY
           W/O TOY MATHEW,PADINJAREKALAYIL HOUSE,
           SOUTH PAMPADY. P.O, KOTTAYAM, 686001

    2      ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED,
           KANNANKERI ESTATE, 3RD FLOOR,
           SHANMUGHAM ROAD, MARINE DRIVE,
           COCHIN-682031
                                              2025:KER:82576

MACA NOS. 271, 272 AND 273 OF 2013

                            2
    3    BABY @ BABY.M.MARAR,
         S/O NARAYANA PANICKER,
         PEROOKUNNEL HOUSE, (MOOLETHAZHATHU),
         CHIRAKKADAVU CENTRE.P.O.,KOTTAYAM. 686001

    4    ORIENTAL INSURANCE COMPANY LIMITED,
         KANJIRAPPALLY BRANCH,
         REPRESENTED BY ITS DIVISIONAL MANAGER,
         KOTTAYAM.686001.


         BY ADVS.
         SMT.KEERTHI K.NARAYANAN
         SHRI.C.S.MANILAL
         SRI.S.NIDHEESH
         SRI.VPK.PANICKER



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 04.11.2025, ALONG WITH MACA.272/2013 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                  2025:KER:82576

MACA NOS. 271, 272 AND 273 OF 2013

                                3


           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

TUESDAY, THE 4TH DAY OF NOVEMBER 2025 / 13TH KARTHIKA, 1947

                     MACA NO. 272 OF 2013

        AGAINST THE AWARD DATED 29.03.2012 IN OPMV NO.993 OF

2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM

APPELLANTS/RESPONDENTS 1 & 2:

    1      TOY MATHEW
           S/O.MATHAI, PADINJAREKALAYIL HOUSE,
           SOUTH PAMPADY, KOTTAYAM.

    2      MINI ABRAHAM
           MYLAKKATTU HOUSE, VELLOOR.P.O.,
           PAMPADY.


           BY ADV SRI.K.P.SUJESH KUMAR


RESPONDENTS/CLAIMANTS AND RESPONDENTS 3 TO 5:

    1      ANNAMMA MATHEW
           W/O. THE DECEASED MATHAI MATHAI,
           PADINJAREKKARAYIL HOUSE, SOUTH PAMPADY.P.O.,
           KOTTAYAM. 686 001.
                                             2025:KER:82576

MACA NOS. 271, 272 AND 273 OF 2013

                             4
    2    SALI MATHEW
         D/O.DECEASED MATHAI MATHAI,
         PADINJAREKKARAYIL HOUSE, SOUTH PAMPADY.P.O.,
         KOTTAYAM. 686 001.

    3    SALIJA MATHEW
         D/O.DECEASED MATHAI MATHAI,
         PADINJAREKKARAYIL HOUSE, SOUTH PAMPADY.P.O.,
         KOTTAYAM. 686 001.

    4    ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED
         KANNANKERI ESTATE, 3RD FLOOR,
         SHANMUGHAM ROAD, MARINE DRIVE,
         COCHIN-682 031.

    5    BABY BABY.M.MARAR
         S/O.NARAYANA PANICKER,
         PEROORKUNNEL HOUSE, (MOOLETHAZHATHU),
         CHIRAKKADAVU CENTRE.P.O., KOTTAYAM. 686 001.

    6    ORIENTAL INSURANCE COMPANY LIMITED
         KANJIRAPPALLY BRANCH,
         REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM
         686 001


         BY ADVS.
         SMT.KEERTHI K.NARAYANAN
         SHRI.C.S.MANILAL
         SRI.S.NIDHEESH
         SRI.VPK.PANICKER
         SMT.LATHA SUSAN CHERIAN
         SRI.GEORGE A.CHERIAN
         SRI.GEORGE CHERIAN (SR.)



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
                                              2025:KER:82576

MACA NOS. 271, 272 AND 273 OF 2013

                             5
HEARD ON 04.11.2025, ALONG WITH MACA.271/2013, 273/2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                  2025:KER:82576

MACA NOS. 271, 272 AND 273 OF 2013

                                6

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

TUESDAY, THE 4TH DAY OF NOVEMBER 2025 / 13TH KARTHIKA, 1947

                     MACA NO. 273 OF 2013

        AGAINST THE AWARD DATED 29.03.2012 IN OPMV NO.1155 OF

2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , KOTTAYAM

APPELLANTS/RESPONDENTS 1 & 2:

           MINI ABRAHAM
           MYLAKKATTU HOUSE,
           VELLOOR P.O.
           PAMPADY

           BY ADV SRI.K.P.SUJESH KUMAR


RESPONDENTS/CLAIMANT AND THIRD RESPONDENT:

    1      BABY @ BABY.M. MARAR
           S/O NARAYANA PANICKER
           PEROOKUNNEL HOUSE, (MOOLETHAZHATHU)
           CHIRAKKADAVU CENTRE P.O.
           KOTTAYAM - 686001


    2      ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED
           KANNANKERI ESTATE, 3RD FLOOR, SHANMUGHAM ROAD,
           MARINE DRIVE, COCHIN-682031
                                              2025:KER:82576

MACA NOS. 271, 272 AND 273 OF 2013

                             7

         BY ADVS.
         SHRI.C.S.MANILAL
         SRI.GEORGE A.CHERIAN
         SRI.S.NIDHEESH
         SMT.LATHA SUSAN CHERIAN
         SRI.GEORGE CHERIAN (SR.)



     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 04.11.2025, ALONG WITH MACA.272/2013 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                      2025:KER:82576

MACA NOS. 271, 272 AND 273 OF 2013

                                8



                            JUDGMENT

These appeals are filed by the registered owner and the

driver of the offending vehicle involved in the accident, who

were the respondents 1 & 2 in the claim petitions, challenging

the tribunal's award granting the insurance company the right

to recover the award amount from the owner as well as from

the driver. Since these three appeals arise from the common

award in O.P.(MV) Nos.979/2007, 993/2007 and 1155/2007 on

the file of the Motor Accidents Claims Tribunal, Kottayam, the

appeals are heard together and are disposed of by this

judgment. The parties are hereinafter referred to as arrayed in

the O.P.(MV).

2. The brief facts of the case is as follows: On 18.03.2007,

at about 3.30 p.m., while the claimant in O.P.(MV)

No.1155/2007 was returning to Chirakkadavu from Kottayam

driving his Maruthi van bearing registration No.PY-01-H-578, a 2025:KER:82576

MACA NOS. 271, 272 AND 273 OF 2013

Tata Indica Car bearing registration No.KL-5T-9929 driven by

the second respondent in a rash and negligent manner, while

overtaking a jeep, collided with the Maruti van, and as a result,

the claimant in O.P.(MV) No.1155/2007 who was the driver of

the van and the passengers in the Indica car sustained serious

injuries and one of the passengers in the indica car succumbed

to the injuries while undergoing treatment. The claimants in

O.P.(MV) No.1155/2007 and O.P.(MV) No.979/2007 approached

the tribunal claiming a total compensation of ₹11,96,862/- and

₹1,40,000/- respectively. The claimants who are the legal heirs

of the deceased in O.P.(MV) No.993/2007, approached the

tribunal claiming a total compensation of ₹4,07,000/-.

3. The first and second respondents, the registered owner

and the driver of the offending vehicle respectively, filed a

written statement before the tribunal, contending that the

second respondent was holding a valid driving licence at the

time of accident. The third respondent - insurer of the

offending vehicle, in the written statement, contended that 2025:KER:82576

MACA NOS. 271, 272 AND 273 OF 2013

there is no valid insurance policy for the vehicle bearing

registration No.KL-5T-9929 with this respondent. The cheque

No. 820177 for ₹9,077/- issued towards policy was dishonoured

on 04.07.2006, whereas the accident was on 18.03.2007. In

consequence of the non-receipt of the premium, the policy was

cancelled and the fact was intimated to the insured through a

letter dated 12.07.2006. Hence, they are not liable to

compensate the insured. The additional fourth respondent, the

driver of the Maruti van filed a written statement and

contended that there was no negligence on the part of the

fourth respondent in causing the accident as he was keeping

his right side. The additional fifth respondent, the insurer of the

Maruti van filed a written statement, admitting the insurance

policy of the vehicle bearing registration No.PY-01-H-578 but

disputing the alleged negligence on the part of the driver of the

Maruti van. Before the tribunal, Exts.A1 to A32, Exts.B1 to B3

and Ext.X1 were marked. The tribunal, after analysing the

pleadings and materials on record, found that the accident 2025:KER:82576

MACA NOS. 271, 272 AND 273 OF 2013

occurred due to negligence on the part of the second

respondent and awarded an amount of ₹10,30,147/-, ₹48,750/-

and ₹1,82,000/- respectively as compensation under different

heads in O.P.(MV) Nos.1155/2007, 979/2007 and 993/2007 with

interest @ 7.5% per annum from the date of petition till

realization to be paid by the third respondent, insurer of the

Indica car. The third respondent - insurer of the Indica car was

granted a right to recover the award amount from the first and

second respondents/owner and the driver of the offending

vehicle. Challenging the right of recovery granted by the

tribunal to recover the amount from the owner and driver of the

offending vehicle, the appellants/owner and the driver have

filed the above appeals.

4. Heard the learned counsel for the appellants/owner

and driver and the learned Standing Counsel for the third

respondent/insurer.

5. The learned counsel for the appellants submitted that

the tribunal had directed the insurance company to pay the 2025:KER:82576

MACA NOS. 271, 272 AND 273 OF 2013

award amount and to recover the same from the owner and the

driver of the vehicle bearing registration No.KL-5T-9929, for

the reason that the cheque which was issued towards premium

was dishonoured and that there was no valid insurance policy

at the time of accident. The learned counsel for the appellants

further submitted that the charge sheet filed against the driver

of the Indica car was challenged before the Judicial First Class

Magistrate Court, Kanjirappilly, as C.C. No. 320/2007. By

judgment dated 24.01.2016, the learned Magistrate found the

driver of the Indica car not guilty for the offences alleged. The

said judgment in C.C. No. 320/2007 has been produced before

this Court along with I.A. No. 1/2021 as Annexure-A. It was

argued that since the driver of the vehicle was found not guilty,

the negligence aspect has gone and hence the owner is not

liable to pay any amount. It was further argued that the insurer

has not produced any document to prove that the intimation

was sent to the appellants regarding the dishonour of the

cheque. Hence, even if the accident and negligence is proved, 2025:KER:82576

MACA NOS. 271, 272 AND 273 OF 2013

the insurer cannot be exonerated from the liability to pay the

award amount.

6. The learned counsel also argued that the tribunal had

found in paragraph 14 of the award that,

"Thus the fact that the cheque was

dishonoured, consequently the policy was

cancelled etc were informed to the owner of the

vehicle is not proved by the 3rd respondent. In

the said circumstances, 3rd respondent is liable to

pay the compensation to the third party and to

get it recovered from the owner of the vehicle."

The learned counsel further submits that, if the afore

facts are not proved, the case of the insurer that the policy was

cancelled, cannot be accepted and the tribunal ought not have

granted right of recovery to the insurer to recover the amount

from the driver and the owner of the vehicle. Hence, the

learned counsel for the appellants submits that the finding of

the tribunal granting right of recovery against the driver and 2025:KER:82576

MACA NOS. 271, 272 AND 273 OF 2013

the owner of the vehicle, is liable to be set aside.

7. Per Contra, the learned standing counsel appearing for

the insurer, contended that the cheque issued by the owner of

the vehicle got dishonoured and the policy was cancelled and

the intimation was sent to the owner which is proved as per

Exts.B1 to B3. The learned standing counsel appearing for the

insurance company further contended that the finding of the

tribunal that the dishonour of the cheque and further

cancellation of the policy is not proved, is erroneous. The

learned counsel further submitted that the findings of the

tribunal, that no date was mentioned in Ext. B3 and that it is

not discernible from Ext. B3 on which date the letter was issued

to the owner of the vehicle, are not correct. Since Ext.B3

carries a date, it shows that the letter intimating cancellation of

the policy was issued on 12.07.2006. He further argued that

since the intimation was given to the registered owner

regarding the cancellation of the policy, it was the burden of

the insurer to prove that the insurer had not received the said 2025:KER:82576

MACA NOS. 271, 272 AND 273 OF 2013

letter relying on the Full Bench judgment of this Court in

Prasanna B. v. Kabeer P.K. and Another [(2018 (5) KHC

454]. Hence the learned counsel for the insurer argued that

since there was no valid policy for the vehicle at the time of

accident, the tribunal had rightly granted right of recovery from

the owner of the vehicle. The learned standing counsel for the

insurer also contended that though a judgment has been passed

by the Judicial First Class Magistrate Court, Kanjirappally,

finding the driver of the Indica car not guilty, the said finding is

not binding on the tribunal while adjudicating a claim petition

under the Motor Vehicles Act. In order to support the said

contention, the learned standing counsel, relied on the

judgment of this Court in National Insurance Company

Limited v. Sajeev & Ors [(2018 (2) KLJ 60].

8. I have considered the rival contentions raised by both

sides.

9. The case of the appellants is that since the Criminal

Court had found the driver of the Indica car, who is one of the 2025:KER:82576

MACA NOS. 271, 272 AND 273 OF 2013

appellants in these appeals, not guilty, the charge sheet filed

against him has become invalid. It is to be noted that though

the claim petition was filed in the year 2007, the judgment in

C.C. No. 320/2007 on the file of the Judicial First Class

Magistrate Court, Kanjirappilly, was produced before this Court

only in 2018, i.e., after the filing of these appeals in 2013.

Hence, before passing the award, the parties appearing in

these appeals did not get an opportunity to adduce evidence to

to contradict the said finding. Moreover, since there was no

chance to produce the judgment of the magistrate court before

the tribunal, before passing of the award, the tribunal also

could not consider the case of the driver of the Indica car that

there was no negligence on his part.

10. The learned standing counsel appearing for the

insurance company submitted that Exts.B1 to B3 documents

were marked without any objection. Hence it has to be

accepted on evidence. Ext. B3 intimation, alleged to have been

given to the appellant/owner regarding the cancellation of the 2025:KER:82576

MACA NOS. 271, 272 AND 273 OF 2013

insurance policy, was not proved before the tribunal. Other

than Ext.B3 letter, there is nothing on record to show that the

letter was sent to the insured. Even relying on the judgment of

the Full Bench of this Court in Prasanna (supra), it was held

that if the communication was sent by registered post or by

certificate of posting, the burden is on the addressee insured to

rebut the presumption by conclusive evidence that he did not

really receive the letter. But the insurer has to prove that the

intimation was sent to the insured.

On a perusal of the award, it is seen that the insurance

company has also not adduced any evidence other than

producing Exts.B1 to B3, to prove that the intimation was sent

to the appellant/owner, regarding the cancellation of the policy.

Considering the totality of the facts and circumstances in

this case, I find that one more opportunity is to be granted to

the parties to prove their case before the tribunal. Hence, the

matter is to be remanded back to the tribunal and the parties in

the appeals both appellants and respondents, must be granted 2025:KER:82576

MACA NOS. 271, 272 AND 273 OF 2013

one more opportunity to raise their contentions before the

tribunal.

Accordingly, these appeals are disposed of with the

following directions:

i) The common award dated 29.03.2012 in O.P.(MV)

No.1155/2007, O.P.(MV) No.979 of 2007 and O.P.(MV)

No. 993/2007 wherein the right granted to the insurer

to recover the award amount from the appellants

herein - the driver and the owner, is set aside and the

matter is remanded back to the tribunal for deciding

the issue regarding the liability alone.