Manoharan, S/o. Krishnan v. C. M. Shaji, S/o. Ahammed Kutty
2016-07-01
A.MUHAMED MUSTAQUE, P.N.RAVINDRAN
body2016
DigiLaw.ai
JUDGMENT : P.N.RAVINDRAN, J. 1. These appeals arise from the common award passed by the Motor Accidents Claims Tribunal, Tirur on 5.2.2008 in O.P.(M.V.) Nos.45, 46, 59 and 60 of 2006. The claimants in O.P.(M.V.)Nos.60 of 2006 and 46 of 2006 are husband and wife respectively. They were travelling in an autorickshaw bearing registration No.KL-11/C-5965 along with their son Mahesh, a minor aged 7 years (the claimant in O.P.(M.V.)No.45 of 2006) and their six month old daughter by name Manju. The said autorickshaw collided with a motor car bearing registration No.KL-10/V-5482, owned by the first respondent, driven by the second respondent and insured with the third respondent. In that accident, the claimant in O.P.(M.V.)Nos.45, 46 and 60 of 2006 sustained personal injuries and the minor daughter of the claimants in O.P.(M.V.)Nos.46 and 60 of 2006, sustained fatal injuries and passed away on the same day. The claim petitions were thereupon filed seeking compensation on the allegation that the accident took place solely on account of the rash and negligent driving of the motor car by the second respondent. 2. The first respondent before the tribunal, the owner of the motor car entered appearance and filed written statements in O.P. (M.V.)Nos.45 and 46 of 2006. Though he entered appearance in O.P. (M.V.)Nos.59 and 60 of 2006, he did not file a written statement in the said claim petitions. In the written statements filed in O.P.(M.V.)Nos.45 and 46 of 2006, the first respondent, the owner of the motor car contended that his driver was not negligent. He contended that it was the driver of the autorickshaw who was negligent and that he had no licence to drive the autorickshaw. He also contended that his motor car is insured with the third respondent and therefore, the insurer is liable to pay the compensation if any awarded. 3. The second respondent before the tribunal, the driver of the autorickshaw did not enter appearance though he was served in O.P. (M.V.)No.45 of 2006 and therefore, he was set exparte. He was not served in the other three claim petitions. Since personal service on him was not possible, the tribunal directed the claimants to take steps to effect substituted service by affixture and by publication in a newspaper daily, but steps were not taken in that regard. 4.
He was not served in the other three claim petitions. Since personal service on him was not possible, the tribunal directed the claimants to take steps to effect substituted service by affixture and by publication in a newspaper daily, but steps were not taken in that regard. 4. The third respondent, the insurer of the motor car entered appearance and filed written statements in all the claim petitions contending inter alia that it had issued a policy of insurance in respect of the motor car covering the period from 30.7.2005 to 29.7.2006 but the policy was cancelled for the reason that the cheque issued towards payment of premium was dishonoured when it was presented for payment. It was contended that as on the date of the accident namely 4.9.2005, the policy of insurance was not in force as it had been cancelled. The insurer also contended that the accident took place solely on account of the negligence of the driver of the autorickshaw and that he had no licence to drive the autorickshaw. It also contended that the compensation claimed is exorbitant and excessive. 5. Before the tribunal, no oral evidence was adduced on either side. However, on the side of the claimant, Exts.A1 to A13 and on the side of the third respondent, Exts.B1 to B5 were produced and marked by consent. The Motor Accidents Claims Tribunal considered the rival contentions and held, relying on the Police records, that the driver of the motor car (the second respondent before the tribunal) who was charge-sheeted by the Police, had driven the motor car in a rash and negligent manner and he was responsible for the accident. The contention of the owner of the motor car that it was the driver of the autorickshaw which was at fault, was rejected for the reason that no evidence in that regard had been adduced. The tribunal thereafter proceeded to award various amounts as compensation. The tribunal also held, accepting the case set out by the insurer, that the policy of insurance issued by it had been cancelled before the accident and therefore, it is not liable to indemnify the insured.
The tribunal thereafter proceeded to award various amounts as compensation. The tribunal also held, accepting the case set out by the insurer, that the policy of insurance issued by it had been cancelled before the accident and therefore, it is not liable to indemnify the insured. A common award was accordingly passed allowing the claimants to realise the amount of compensation awarded by the tribunal from the owner and driver of the motor car in O.P.(M.V.)No.45 of 2006 and from the owner of the motor car in the other three cases evidently for the reason that its driver had not been served in the said cases. The claimants have, dissatisfied with the quantum of compensation awarded by the tribunal and aggrieved by the exoneration of the insurer, filed these appeals. 6. We heard Sri.A.R.Nimod, learned counsel appearing for the appellants, Sri.Santheep Ankarath, learned counsel appearing for the owner of the motor car and Sri.A.R.George and Sri.Rajesh Thomas, learned counsel appearing for the insurer. Learned counsel appearing for the appellants contended relying on the decision of the Apex Court in New India Assurance Co. Ltd. v. Rula & Others [ 2000 (3) SCC 195 ] that the rights of the claimants who are third parties would remain unaffected notwithstanding the cancellation of the policy consequent on the dishonour of cheque issued towards payment of premium and therefore, the tribunal erred in exonerating the insurer. Learned counsel also contended relying on the decision of the Division Bench of this court in Oriental Insurance Co. Ltd. v. Raveendran [ 2015 (2) KLT 958 ] that as the insurer had not reported the factum of cancellation of policy to the Regional Transport Authority, the cancellation is of no effect as regards third parties. Learned counsel also contended that the compensation awarded to the claimants is grossly inadequate and is not just and fair compensation. Placing reliance on the decision of the Division Bench of this court in M.A.C.A. No.734 of 2008 to which one of us (P.N.Ravindran, J.) was a party, learned counsel contended that the compensation awarded to the claimants in O.P.(M.V.)No.59 of 2006 from which M.A.C.A.No.2306 of 2008 arises, in respect of a girl child aged six months, is liable to be enhanced. 7.
7. Per contra, learned counsel appearing for the third respondent insurer contended that though Ext.B5 policy of insurance was issued covering the period from 30.7.2005 to 29.7.2006, as Ext.B1 cheque dated 30.6.2005 issued towards payment of premium for the said policy was dishonoured when presented on 16.7.2005, the insurer had cancelled the policy by sending Ext.B4 letter dated 1.8.2005, that the insured has not contested or disputed the said fact or denied having received Ext.B4 letter and therefore, the tribunal was perfectly justified in exonerating the insurer. Learned counsel placed reliance on the decision of the Honourable the Supreme Court of India in Deddappa v. National Insurance Co. Ltd. [ 2008 (1) KLT 296 ] in support of his submissions. 8. We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record. It is not in dispute that upon receipt of Ext.B1 cheque dated 30.6.2005, the receipt of which was on 1.7.2005, the third respondent insurance company had issued Ext.B5 policy covering the period from 30.7.2005 to 29.7.2006. Even before the policy was issued, Ext.B1 cheque was dishonoured when it was presented for payment by the bankers of the owner of the motor car and Ext.B3 intimation regarding dishonour was given on 17.6.2005. The insurer acted promptly and sent Ext.B4 letter dated 1.8.2005 to the owner of the motor car pointing out the above facts and intimating him that the policy has been cancelled. The owner of the motor car has not challenged the finding entered by the tribunal that the policy has been cancelled and therefore, the insurance company is not liable. 9. The Apex Court has in Deddappa v. National Insurance Co. Ltd. [supra], after a survey of the case law on the point and the relevant statutory provisions, held that if a contract of insurance has been cancelled and all concerned have been intimated about it, the insurance company would not be liable to satisfy the claim. It is relying on the words 'all concerned' occurring in paragraph 26 of the aforesaid decision of the Apex Court, learned counsel for the appellants contended that the Regional Transport Authority should have been intimated. The Regional Transport Authority comes into the picture only when stage carriages and contract carriages are involved.
It is relying on the words 'all concerned' occurring in paragraph 26 of the aforesaid decision of the Apex Court, learned counsel for the appellants contended that the Regional Transport Authority should have been intimated. The Regional Transport Authority comes into the picture only when stage carriages and contract carriages are involved. The motor vehicle involved in the case on hand is a motor car. The Regional Transport Authority has nothing to do with the registration of a motor car. There is no stipulation in Motor Vehicles Act, 1988 or the Insurance Act, 1938 that the cancellation of policies of insurance issued in respect of all types of motor vehicles will have to be communicated to the registering authority or the Regional Transport Authority. In the absence of any such duty on the insurer, we are not persuaded to hold that as the cancellation of the policy of insurance was not intimated to the Regional Transport Authority, such cancellation does not take effect. It is only where a transfer of policy is involved that the owner is bound to intimate the transfer to the registering authority. It is now well settled that except in the case of claims for own damage, even without intimation in that regard being given to the registering authority, the policy of insurance will automatically stand transferred to the name of the transferee and the insurer cannot claim exoneration. Such being the situation, we are not persuaded to hold that the failure to inform the registering authority or the Regional Transport Authority vitiates the cancellation of the policy. In any case, such a plea cannot come from a third party to the contract but it can come only from the insured. The insured in the case on hand had not raised such a plea. He has not filed an appeal challenging the exoneration of the insurer. The appellants cannot therefore in our opinion successfully assail the finding entered by the tribunal that the policy was cancelled and therefore, the insurer is not liable. Though it is contended before us relying on the decision of the Apex Court in New India Assurance Co. Ltd. v. Rula & Others (supra) that the cancellation of a policy is of no effect as far as third parties are concerned, we find no merit in the said contention. In New India Assurance Co.
Though it is contended before us relying on the decision of the Apex Court in New India Assurance Co. Ltd. v. Rula & Others (supra) that the cancellation of a policy is of no effect as far as third parties are concerned, we find no merit in the said contention. In New India Assurance Co. Ltd. v. Rula & Others (supra) the accident had taken place before the policy was cancelled. It was in such circumstances that the Apex Court held that as a right has accrued in favour of a third party, subsequent cancellation would not affect that right. In the case on hand, the accident took place on 4.9.2005, more than a month after the policy of insurance was cancelled. 10. In the light of the binding decisions of the Apex Court referred to above, we find no merit or force in the submission of the learned counsel for the appellants that failure to inform the Regional Transport Authority vitiates cancellation of the policy. Though reliance was placed on Rule 24 of the General Rules issued by the Insurance Regulatory Development Authority, the consequences of failure to intimate the Regional Transport Authority are not stipulated therein. It is nowhere stipulated that the Regional Transport Authority has to maintain a register of policies of insurance issued by the insurers. Nor is the Regional Transport Authority bound to maintain a register of policies which has been cancelled subsequently by the insurer for a variety of reasons including non-payment of premium and dishonour of cheques. Such being the situation, we are not persuaded to hold that the cancellation in the instant case has not taken effect. We accordingly overrule the said contention as well. 11. That takes us to the question whether the compensation awarded to the claimant is just and fair compensation or it merits any enhancement. After hearing learned counsel on either side, we are not persuaded to hold that the compensation awarded to the claimants in O.P.(M.V.)Nos.45, 46 and 60 of 2006 is on the lower side and that just and fair compensation has not been awarded. However, as regards the claimant in O.P.(M.V.)No.59 of 2006, we are of the opinion that the compensation awarded is not adequate or just and fair compensation. The claimants lost their daughter aged six months in the accident. The tribunal has in the instant case awarded only a lumpsum compensation of Rs.1,50,000/-.
However, as regards the claimant in O.P.(M.V.)No.59 of 2006, we are of the opinion that the compensation awarded is not adequate or just and fair compensation. The claimants lost their daughter aged six months in the accident. The tribunal has in the instant case awarded only a lumpsum compensation of Rs.1,50,000/-. A Division Bench of this court has in M.F.A.No.734 of 2008 awarded to the parents of a sixty days old child, the sum of Rs.75,000/- each towards compensation under the head loss of love and affection, Rs.10,000/- under the head pain and suffering, Rs.25,000/- under the head funeral expenses and a consolidated amount of Rs.70,000/- under the head loss of expectancy from the child. Taking cue from the said decision, we are of the opinion that in the instant case, applying the said principles, the sum of Rs.2,55,000/- can be awarded as compensation. As stated earlier, the tribunal has in the instant case awarded only the sum of Rs.1,50,000/- as compensation. We accordingly award to the appellants in M.A.C.A. No.2306 of 2008 (the claimants in O.P.(M.V.)No.59 of 2006) an additional sum of Rs.1,05,000/- as compensation over and above the compensation awarded by the tribunal. We accordingly allow M.A.C.A.No.2306 of 2008 and in modification of the award passed by the Motor Accidents Claims Tribunal, Tirur award to the appellants/claimants in O.P.(M.V.)No.59 of 2006, an additional compensation of Rs.1,05,000/-. The first respondent in the claim petition, the owner of the motor car shall deposit the said amount together with interest at 6% per annum from the date of petition till the date of deposit, within three months from today. In the event of default, it will be open to the claimants to realise the amount awarded as compensation by this court as also the amount awarded as compensation by the tribunal from the first respondent and his assets. M.A.C.A.Nos.2338 of 2008, 2917 of 2008 and 166 of 2009 fail and are accordingly dismissed. Having regard to the fact that the motor vehicle involved in the instant case was not covered by a valid policy of insurance, we deem it appropriate to direct that the parties shall suffer their respective costs in this court.