Kerala High Court
M.Suresh vs M.Sreedevi Haridas on 25 May, 2012
Bench: Pius C.Kuriakose, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
FRIDAY, THE 25TH DAY OF MAY 2012/4TH JYAISHTA 1934
MACA.No. 286 of 2012 ()
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IN OPMV.69/2003 of II ADDL. MACT, KOZHIKODE
APPELLANT(S)/APPELLANT:
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M.SURESH, AGED 47 YEARS
S/O. CHOYI, B-119, POLICE QUARTERS
PAVAMANI ROAD, CALICUT-673 004.
BY ADV. DR.V.N.SANKARJEE
RESPONDENT(S)/(RESPONDENTS IN THE TRIBUNAL BELOW):
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1. M.SREEDEVI HARIDAS
'SREE HARI', ISLAND AVENUE, P.O.POONKUNNAM-680 022
TRICHUR.
2. UNITED INDIA INSURANCE COMPANY LIMITED
VADAKKANCHERI ROAD, ORISON COMPLEX, KUNNAMKULAM P.O.
TRICHUR-680 503.
BY ADV. SRI.K.SANDESH RAJA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 25-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
PIUS C.KURIAKOSE &
A.V.RAMAKRISHNA PILLAI JJ.
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MACA. NO. 286 OF 2012
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Dated this the 25th day of May, 2012
JUDGMENT
Ramakrishna Pillai,J The appellant, a police constable while discharging his official duties, was hit down by a car bearing Registration No. KL A/-8/L-7120 on 30/5/2002. The appellant sustained severe injuries including fractures and head injury. The offending vehicle was stolen by a third person and at the material time the person, who had stolen the vehicle, was in possession and control over the offending vehicle. The learned Tribunal, without going into the merits of the case, dismissed the claim petition as it was found that the vehicle involved in the accident was under theft at the time of the accident. The said finding and the consequential dismissal are under challenge in this appeal.
2. We have heard the learned counsel for the appellant as well as the learned standing counsel for the Insurance Company. We have also perused the impugned award.
3. The question, whether in a case of theft of vehicle, the MACA No. 286 /2012 2 insurer can repudiate the claim on the ground of violation of policy conditions was considered by the Apex Court in National Insurance Co.Ltd. v. Nitin Khandelwal (2008 (3) KLT 332). The Apex Court found that in cases where the vehicle involved in the accident had been stolen, breach or violation of the policy conditions is not germane. The Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer, it was held.
4. The same view was expressed by a Division Bench of this court in Sasidharan Nair v . Ali (2009 (3) KLT 867), wherein it was held that the theft of vehicle and unauthorised use by person who had stolen the vehicle cannot be termed as a breach committed by the insured and hence the insurer cannot be exonerated from liability .
4. We are of the view that the grievance exposed by the appellant in the appeal is genuine. As the Tribunal has dismissed the claim petition on a finding that the Insurance Company is not liable to indemnify the appellant, the matter has to be remitted back to the Tribunal for fresh disposal. MACA No. 286 /2012 3
5. In the result, the appeal is allowed. The impugned award dismissing the claim petition is set aside. The O.P.(MV) NO.69/2003 on the file of the Motor Accident Claims Tribunal, Kozhikode is remitted back to the Tribunal for fresh disposal after affording both sides an opportunity to adduce fresh evidence if they choose.
6. The revised award shall be passed within three months from the date of appearance of parties.
The parties shall appear before the Tribunal on 26/6/2011.
Sd/-
PIUS C.KURIAKOSE, JUDGE Sd/-
A.V.RAMAKRISHNA PILLAI, JUDGE.
dpk /True copy/ P.A to Judge.
MACA No. 286 /2012 4