Kerala High Court
Joby Thomas vs Annamma Augustine on 17 March, 2010
Equivalent citations: 2013 AAC 1836 (KER), (2010) 95 ALLINDCAS 460 (KER), (2011) 1 TAC 363, (2012) 4 ACC 889, (2012) 1 ACC 272, (2012) 2 ACJ 848, 2014 (2) ALLMR (JS) 13
Author: M.N.Krishnan
Bench: M.N.Krishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 3041 of 2009()
1. JOBY THOMAS, S/O.THOMAS,
... Petitioner
2. SIJU PHILIP, S/O.PHILIP N.M.,
Vs
1. ANNAMMA AUGUSTINE, W/O.AUGUSTINE
... Respondent
2. THE NATIONAL INSURANCE CO.LTD.,
For Petitioner :SRI.SHIBY ALEX
For Respondent :SRI.LAL GEORGE
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :17/03/2010
O R D E R
M.N. KRISHNAN, J.
...........................................
M.A.C.A.No.3041 OF 2009
.............................................
Dated this the 17th day of March, 2010.
J U D G M E N T
This appeal is preferred against the award of the Claims Tribunal, Pala in OP(MV)No.238/2007. The claimant, who sustained injuries in a road accident, has been awarded a compensation of Rs.26,250/= and the amount is ordered to be paid by the insurance company with a further direction to get it recovered from respondents 1 and 2 on satisfaction of the award. It is against that decision, respondents 1 and 2 have come up in appeal challenging their liability.
2. Heard the learned counsel for the appellants as well as the insurance company. The learned counsel for the appellants contends before me that in order to get exonerated from the liability or to get an order of reimbursement from the owner, there must be breach of the policy conditions and that must be also the defence available to the insurance company under Section 149 of the M.V.Act. The brief facts would reveal that the vehicle, Maruthi car, was temporarily registered for a period from 30.11.2006 to 6.12.2006. The : 2 : M.A.C.A.No.3041 OF 2009 accident took place on 17.1.2007 on which date there was neither extension of the temporary registration nor any permanent registration of the vehicle. The vehicle was got registered on 18.1.2007.
3. The contention raised by the insurance company is to the effect that since there was no registration for the vehicle, it amounts to breach of the policy conditions enumerated as item No.6, i.e., reliability trial and it contended for getting reimbursement from the owner of the vehicle. The learned counsel for the appellants had invited my attention to Section 39 of the Motor Vehicles Act which deals with the provision for registration of the vehicles. Under that section, no person shall drive any motor vehicle without such a registration. When there is any default committed by the person, the law takes care of and under Section 192 of the M.V. Act, when there is contravention of Section 39, it is made punishable with fine of Rs.5,000/= etc. So the learned counsel would contend that when there is non compliance of the mandatory provisions of the M.V.Act, the Act itself takes care of it to realise the fine.
: 3 : M.A.C.A.No.3041 OF 2009
4. So whether the non-registration would amount to breach of policy conditions would be the next question. The parties who are insurer and the insured are governed by the terms of the contract entered into between them. So if there is breach of the policy conditions, then necessarily the insured has to reimburse the insurer.
5. The learned counsel appearing for the parties had made available before me a copy of the policy and had also taken me through the conditions of the policy which are six in numbers and the learned counsel for the insurance company in the trial court had raised a contention that breach of the policy conditions will come within the ambit of 'reliability trial' which is condition No.6. Without any fear of contradiction, it can be said that reliability trial has nothing to do with the non registration of the vehicle. When there is no breach of the policy conditions, the question of the insurance company to get entitlement of reimbursement does not arise.
6. This matter can be viewed in another angle and it has been viewed so by the Karnataka High Court in the : 4 : M.A.C.A.No.3041 OF 2009 decision reported in Virupaksha v. Sivakumar (2001 KHC
948). It was also a case where there was temporary registration for the vehicle till 30.11.1991. The vehicle was registered only on 24.1.1992. The accident took place on 12.1.1992 or in other words there was no valid registration for the vehicle on the date of accident. Whether the insurance company can raise the contention that it is not liable to pay the amount because of non registration of the vehicle on the relevant date of the accident was considered. The learned judge referred to Section 149 of the M.V. Act which deals with specific defences available to the insurance company under the Act. All the clauses had been extracted and the learned judge came to the conclusion that non registration of the vehicle is not one of the defences enumerated under Section 149 of the Act. Therefore the insurance company is not entitled to take defence of non- registration of the vehicle on the date of the accident. So viewed in both the angles viz., that as there is no breach of policy conditions and as there is no defence available to the insurance company on account of non registration, it has to : 5 : M.A.C.A.No.3041 OF 2009 be held that the insurance company is not liable to be exonerated from the liability. The finding to the contra by the tribunal is incorrect and it is liable to be set aside and I do so.
7. In the result, the appeal is allowed and the award of the tribunal directing respondents 1 and 2 to pay the amount to the insurance company is set aside and it is made clear that under the terms and conditions of the contract of insurance, the insurance company is bound to pay the amount awarded without any right for recovery from the owner or the driver.
The appeal is disposed of accordingly.
M.N. KRISHNAN, JUDGE cl