2017 Supreme(Ker) 1467

IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.T. RAVIKUMAR, ANIL K.NARENDRAN, JJ.
THE NATIONAL INSURANCE CO. LTD. - Appellant
Versus
SUDHAKARAN, S/O. KUMARAN and Ors - Respondent
M.A.C.A.Nos.983, 1866, 1873 of 2009 & 981 of 2015 & Cross Objection No.54 of 2009
Decided on : 16-06-2017

Headnote:The Motor Vehicles Act- Section 166;; The Insurance Act- section 64-VB

       Question arised :

       “Can the insurer of a motor vehicle, involved in an accident during the currency of its policy of insurance, decline to assume the risk in respect of the insurance business, arising out of that accident occurred on the date of receipt of the premium merely because going by the policy of insurance, its coverage commenced not on the date of receipt of premium, but only from 00.hrs of the next day”.

       Facts of the case:

       - Two claim petitions germinated from the same accident and culminated in the common judgment- The claimants are husband and wife-Knocked down by the maruthi car bearing registration No.KL-7H-3985 when they were walking alongside Ernakulam-Muvattupuzha road on 13.4.2004 at about 1.30 p.m. -The husband filed OP(MV)No.2198/2004 claiming a total compensation of 3,06,000/- and the wife filed ? OP(MV)No.2410/2004 claiming a compensation of 2,33,000/-, under ? Section 166 of the Motor Vehicles Act- The cause of accident as the negligence from the part of the 1st respondent, the driver of the said offending vehicle - The Insurance Company, the 3rd respondent therein disowned the liability to indemnify the insured owner of the offending vehicle, contending that as on the date of accident, there was no policy coverage as the policy in respect of the M.A.C.A.Nos.983, 1866 & 1873 of 2009, 981/2015 & Cross Objection No.54/2009 in M.A.C.A.No.1866/2009 3 vehicle in question had commenced its coverage only from 00.hrs on 14.4.2004 and therefore, it had validity only from 14.4.2004 to 13.4.2005-

       - Referred cases:

       - Sonia Bhatia v. State of U.P. reported in (AIR 1981 SC 1274)

       - Central Bank of India v. The Harford Fire Insurance Co. Ltd. (AIR 1965 SC 1288),

       - General Assur. Society v. Chandmull Jain (AIR 1966 SC 1644), Oriental Insurance Co. Ltd. v. Sony Cheriyan [(1999) 6 SCC 451] National Insurance Co. Ltd. v. Laxmi Narain Dhut [(2007) 3 SCC 700

       - National Insurance Company Ltd. v. Smt.Bhadramma [(2010) 1 TAC 818=(2010 ACJ 1687)]

       - Textile Commissioner v. Sagar Textile Mills (AIR 1977 SC 1516) State of U.P. v. Jogendra Singh (AIR 1963 SC 1618)

       Crux of the case:

       The time and date shown in the policy has to be taken as the decisive factor in regard to the question of liability of the insurer to indemnify the insured owner

       Premium was paid by the insured owner in respect of the vehicle in question prior to the accident.

       Reasons for the Decision:

       M.A.C.A.No. 981/2015- Enhancement of compensation-Permanent disability-Disability of 29%--The injured appellant was aged 44 years at the time of the accident- working as Village Extension Officer in Edappally Block Office -Earning a monthly income of 5,200--Take the monthly income for the post-retiral period as ?4,500/- for the purpose of granting compensation for the disability incurred by the appellant-The multiplier `9' applicable to the age group of 56-60-

       • Take an amount of 4,500/- as the ? monthly income hence the appellant is entitled to 1,40,940/- (4,500x12x9x29/100)- Under the combined ? head of “transportation, hospitalisation, attendant expenses, extra nourishment & damage to clothings” the appellant was granted an amount of 6,000/-

       • The appellant had been an inpatient for a period ? of 25 days - towards `extra nourishment' and `attendant expenses' the appellant ought to have been granted 3,750/-

       • Towards `transportation' an amount of 2,000/- granted

       • Towards `damage to clothings' an amount of 1,000/- is granted. After deducting the amount of ? ? 6,000/- granted by the Tribunal the appellant is entitled to 3,250/- additionally under those heads

       • The appellant will be entitled to an additional compensation of 1,29,190/- (1,40,940+3,250-15,000), rounded off to 1,29,200/-. It is awarded ? and it will carry interest at the rate of 8% per annum from the date of the petition till realization.

        M.A.C.A.No.983 of 2009

       The award of the Tribunal was set aside only to the extent of the finding on the issue of liability- It was remanded for finding out whether there was effective policy on the date of the accident and whether the insurance company is liable to pay the amount awarded or whether it is the owner of the vehicle who is liable to pay the compensation awarded-

       Whether the premium in respect of the vehicle was paid prior or after the accident- Risk by the insurer in terms of the provisions under section 64-VB of the Insurance Act-Premium was paid by the insured owner in respect of the vehicle in question prior to the accident -The applicability of Section 64VB of the Insurance Act -- Remanding the matters for fresh consideration on the question of liability, subject to such consideration the insurer will be entitled to recover the amount paid to satisfy the award in case it is exonerated from the liability- Affording opportunity to the parties the Tribunal shall consider whether there was an effective policy so as to make the insurer liable to indemnify the insured owner-

        Finding of the Court:

       If the insurance company is exonerated from the liability to indemnify the insured owner it will be open to the insurer to recover the amount paid to satisfy the award in O.P.(M.V)No. 2410 of 2004 and the award in O.P.(M.V)No.2198 of 2004 and also the amount paid to satisfy the judgment in M.A.C.A.No.981 of 2015 awarded additional compensation with interest-

       Result: M.A.C.A.No.981 of 2015 is allowed- M.A.C.A.No.983 of 2009 is dismissed- Cross Objection No.54 of 2008 in M.A.C.A.No.1866 of 2009 is dismissed as withdrawn.