Kerala High Court
The New India Assurance Company Limitd vs Mrs. Lilly on 30 March, 2011
Author: Harun-Ul-Rashid
Bench: Harun-Ul-Rashid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID
MONDAY, THE 8TH DAY OF APRIL 2013/18TH CHAITHRA 1935
MACA.No. 1803 of 2011 ( )
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AGAINST THE AWARD IN OPMV.NO.1911/2005 OF MACT,THRISSUR
DATED 30-03-2011
APPELLANT/3RD RESPONDENT:
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THE NEW INDIA ASSURANCE COMPANY LIMITD, THRISSUR
NOW REPRESENTED BY ITS MANAGER,
REGIONAL OFFICE, M.G. ROAD, KOCHI-11.
BY ADVS.SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
RESPONDENTS/PETITIONER & RESPONDENTS 1 AND 2:
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1. MRS. LILLY, W/O.DEVASSY, ARANGASSERY HOUSE, P.O. KUTTUR,
THRISSUR DISTRICT. PIN. 680 518.
2. DEVASSY,S/O.VAREED, ARANGASSERY HOUSE, P.O.KUTTUR,
THRISSUR DISTRICT. PIN. 680 518.
3. LIJO DEVASSARY, S/O.DEVASSY, ARANGASSERY HOUSE, P.O. KUTTUR,
THRISSUR DISTRICT. PIN. 680 518.
R2 BY ADV. SRI.C.HARIKUMAR
R2 BY ADV. SMT.V.V.ASHA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
08-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
kcv.
HARUN-UL-RASHID, J.
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M.A.C.A.No.1803 Of 2011
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Dated this the 8th day of April, 2013.
J U D G M E N T
The New India Assurance Company Limited is the appellant. The appeal is directed against the award dated 30.3.2011 in O.P (MV).No.1911/2005 on the file of the Motor Accidents Claims Tribunal, Thrissur. The Tribunal allowed the claimant to realise `63,000/- as compensation with interest @ 8% per annum from 24.8.2005 till realisation and proportionate costs. Placing reliance on Ext.B1 policy, the Tribunal held that the offending scooter was validly insured by the 1st respondent with the 3rd respondent as on the date of the accident. Relying on the fact that the insurance company has collected ` 70/- for personal accident coverage under IMT for two unnamed passengers, the Tribunal held that the claimant is covered under the policy and therefore, the insurance company is liable to pay ` 50,000/- which is the maximum liability of the company and rest of the award amount is payable by the 1st respondent. The insurance company is aggrieved by the finding that the appellant is liable for ` 50,000/- with interest due thereon and proportionate costs.
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M.A.C.A.No.1803 Of 2011
2. Ext.B1 is the certified copy of the policy of the offending scooter which was validly insured with the 3rd respondent as on the date of the accident. Ext.B1(a) provides the conditions applicable to a liability only policy. The insurance company had collected ` 70/- for personal accident coverage under IMT for two unnamed passengers. The maximum liability of the respondent is limited to ` 50,000/- and the coverage is (i) 100% for death, (ii) 100% for loss of two limbs or sight of two eyes or one limb and sight of one eye, (iii) 50% for the loss of one limb or sight of one eye and (iv) 100% for permanent total disablement from injuries other than named above. The Tribunal held that clause (iv) referred above is applicable in the present case. Clause (iv) stipulates 100% for permanent total disablement from injuries. Ext.A10 is the disability certificate certifying that the claimant sustained 8% disability. The Tribunal finding that the petitioner had sustained fracture of both bones of left hand was inclined to fix 4% disability. Since the personal accident coverage is applicable only in a case of 100% permanent disability, the finding of the Tribunal that clause (iv) of the conditions is applicable, is unsustainable in law. Clause (iv) ::3::
M.A.C.A.No.1803 Of 2011 speaks about 100% for permanent total disablement from injuries. In this case, the permanent disability assessed is 8% as per Ext.A10 disability certificate. The Tribunal assessed it as 4%. In these circumstances, the appellant company is not liable for 50% under the personal accident coverage. The claimant sustained no disability as mentioned in the conditions set out in Exts.B1 & B1(a) policy.
In the result, the appeal is allowed. The impugned award is modified. The direction issued by the Tribunal fixing the liability upon the 3rd respondent to indemnify the 1st respondent for a sum of ` 50,000/- is set aside. It is made clear that respondents 1 & 2 in the claim petition are jointly and severally liable to pay the compensation as per the award passed by the Tribunal. The learned senior counsel for the appellant submits that an amount of ` 25,000/- has already been deposited at the time of filing the appeal. The appellant is at liberty to withdraw the amount.
HARUN-UL-RASHID, Judge.
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