Kerala High Court
The New India Assurance Co. Ltd vs Havva Umma on 30 July, 2025
MACA NO. 603 OF 2010
1
2025:KER:55841
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 30TH DAY OF JULY 2025 / 8TH SRAVANA, 1947
MACA NO. 603 OF 2010
AGAINST THE AWARD DATED 07.05.2009 IN OP(MV) NO.76 OF
2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR
APPELLANT/RESPONDENT NO.2 :-
THE NEW INDIA ASSURANCE CO. LTD.
GARDEN APPARTMENTS, 1ST FLOOR, 68,
PURUSAWALKAM HIGH ROAD, CHENNAI, TAMIL NADU.
BY ADVS.
SHRI.LAL K.JOSEPH
SHRI.SURESH SUKUMAR
SRI.ANZIL SALIM
RESPONDENTS/PETITIONERS AND RESPONDENTS 1 & 3 :-
1 HAVVA UMMA, W/O ABDURAHIMAN, THEKKAN HOUSE,
P.O. VELIYANKODE,VELIYANKODE AMSOM DESOM,
PONNANI TALUK - 679 579
2 SIDHEEK, S/O ABDURAHIMAN, THEKKAN HOUSE,
VELIYANKODE PO., VELIYANKODE AMSOM DESOM,
PONNANI TALUK - 679 579
3 MUSTHAFA, S/O ABDURAHIMAN,
THEKKAN HOUSE, VELIYANKODE P.O.,
VELIYANKODE AMSOM DESOM, PONNANI TALUK
4 NASEER, S/O ABDURAHIMAN, THEKKAN HOUSE,
P.O. VELIYANKODE, VELIYANKODE AMSOM DESOM,
PONNANI TALUK
5 FATHIMA, D/O ABDURAHIMAN, THEKKAN HOUSE,
P.O. VELIYANKODE,VELIYANKODE AMSOM DESOM,
PONNANI TALUK
MACA NO. 603 OF 2010
2
2025:KER:55841
6 SAINABA, D/O ABDURAHIMAN, THEKKAN HOUSE,
P.O. VELIYANKODE,VELIYANKODE AMSOM DESOM,
PONNANI TALUK
7 ABSAR, S/O ABDURAHIMAN, THEKKAN HOUSE, P.O.
VELIYANKODE,VELIYANKODE AMSOM DESOM,
PONNANI TALUK
8 RIZAB, ABDUL SAINUDHEEN, NO.23,ORMES ROAD,
KILPAUK,CHENNAI, TAMILNADU
9 KABEER THEKKAN [DELETED]
SHOP NO.36,ROAD NO.28,MANAMA, BAHRAIN
[RESPONDENT NO.9 IS DELETED FROM THE PARTY ARRAY AT
THE RISK OF APPELLANT AS PER ORDER DATED 12/11/2019
IN IA.2/2019 IN MACA 603/2010]
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 21.07.2025, THE COURT ON 30.07.2025 DELIVERED
THE FOLLOWING:
MACA NO. 603 OF 2010
3
2025:KER:55841
JUDGMENT
This appeal arises from the award passed by the Motor Accidents Claims Tribunal, Tirur in O.P (MV) No.76 of 2007 granting compensation in respect of the death of one Abdul Rahiman in a road traffic accident. The appellant/2nd respondent insurer has come up in appeal challenging their liability to pay the compensation.
2. On 23.11.2003 at about 07.00 pm, while the deceased, Abdul Rahiman was standing inside the road margin, a car bearing registration No.TN-01-U-9685 driven by the 1st respondent in a rash and negligent manner came and hit against the deceased. Due to the heavy hit, the deceased was lifted to air and fell on the bonnet of the car and then fell on the road, sustaining injuries that ultimately led to his death. The claimants approached the tribunal claiming a total compensation of ₹3,00,000/-.
3. Before the tribunal 1st respondent is the owner cum driver and 2nd respondent is the insurer of the offending vehicle. The 2nd respondent - insurer filed a written statement, denying the insurance coverage and disputing the compensation claimed. MACA NO. 603 OF 2010 4 2025:KER:55841 Before the tribunal, Exts. A1 to A10 were marked. The tribunal, after analysing the pleadings and materials on record, awarded a sum of ₹1,59,000/- as compensation under different heads with interest @9% per annum from the date of petition till realization with proportionate costs from the 2nd respondent, insurer. Challenging the liability and quantum of compensation awarded by the tribunal, the insurance company has come up in appeal.
4. Heard the learned standing counsel for the appellant. Though notice was duly served on respondents 1 to 8, respondents 1 to 7 signed the notice and the 8th respondent was served through paper publication. Despite service of notice on all the respondents, none of them chose to appear before this Court.
5. The learned standing counsel appearing for the appellants/insurance company submitted that the finding of the Tribunal, directing the insurer to compensate for the death of the original claimant, is erroneous and liable to be set aside. It is submitted that the policy issued in favour of the 8th respondent, the owner of the vehicle, stood cancelled due to the dishonour of the cheque issued by him for want of sufficient funds in his account. He further submitted that the cancellation was duly intimated to the owner of the vehicle even prior to the accident. MACA NO. 603 OF 2010 5 2025:KER:55841 Hence, the insurer cannot be fastened with any liability to pay the compensation amount. The learned counsel further submitted that, though the insurer had raised a contention before the tribunal by filing a written statement denying insurance coverage in respect of the vehicle involved in the accident, on the ground that the policy had been cancelled, the insured failed to furnish any supporting details of the policy. Even then the tribunal found that the denial of insurance coverage was false. The tribunal relied on Ext.A5 copy of the insurance policy produced by the claimants and allowed the claim petition by awarding compensation to the claimant. Before this court, in appeal, along with I.A. No. 795 of 2010, the insured had produced Exts. B1 to B4 to prove that the fact of dishonour of the cheque issued towards payment of the premium amount was duly intimated to the owner of the vehicle well in advance and the accident occurred after the intimation of dishonour to the owner. The learned standing counsel appearing for the insurance company, submitted that while the matter was pending before the tribunal, they were unable to trace the file relating to the aforesaid policy and therefore, was only able to file a written statement disputing the coverage of the policy, seeking exoneration from liability, but no documents could be produced. MACA NO. 603 OF 2010 6 2025:KER:55841
6. I have considered the rival contentions raised by the learned standing counsel appearing for the appellant.
7. Before the tribunal the insurer had raised a contention denying insurance coverage. However, no evidence was adduced in order to substantiate the said contention. After filing of this appeal, I.A.No.795 of 2010 (I.A.No.5 of 2010) was filed producing Exts.B1 to B4 documents. Ext.B2 is an intimation sent from Canara Bank to the insurer regarding the dishonour of the cheque bearing No.442351 dated 29.09.2003 issued in favour of the New India Assurance Company Ltd. Exts.B3 is the copy of registered letter dated 14.10.2003 sent to Rizab, who was the 8th respondent in the appeal intimating him that the policy issued in respect of the vehicle bearing registration No.TN-01-U-9685 stands cancelled due to insufficient funds and intimating that the insurer is not on risk in respect of the above policy and certificate of insurance. Ext.B4 is the copy of the registered letter dated 27.10.2009 informing the Regional Transport Officer, Chennai regarding the cancellation of motor policy No.710900/31/03/01/00003617 in respect of the vehicle bearing registration No.TN-01-U-9685.
8. The learned standing counsel appearing for the insurance company submitted that the insurer is only required to MACA NO. 603 OF 2010 7 2025:KER:55841 prove that intimation regarding the dishonour of the cheque was given to the registered owner of the vehicle. It was further submitted that as per Ext.B3, such intimation was given to the registered owner and as per Ext.B4, the Regional Transport Authority was also informed about the cancellation of the issued policy. The learned counsel also relied on the Full Bench judgment of this Court in Prasanna B v. Kabeer P.K and another [2018 (5) KHC 454], wherein it was held that the burden is on the addressee(insured) to rebut the presumption by conclusive evidence that he did not really receive the letter and it is not a case of deliberate avoidance. The burden is not on the insurer to establish conclusively that the intimation of cancellation of insurance coverage was in fact served on the insured or the registering authority.
9. Admittedly the accident occurred on 23.11.2003 and as per Ext.B3 the intimation was given to the registered owner of the vehicle regarding the dishonour of the cheque issued towards premium on 14.10.2003 which is prior to the date of accident. The learned Standing Counsel appearing for the insurance company also relied the judgment of the Apex Court in United Insurance Company Ltd. v. Laxmamma and Others [2012 KHC 4273 (SC)], MACA NO. 603 OF 2010 8 2025:KER:55841 wherein it was held that 'where the policy of insurance is issued by an authorized insurer on receipt of cheque towards payment of premium and such cheque is returned dishonoured, the liability of authorized insurer to indemnify third parties in respect of the liability which that policy covered subsists and it has to satisfy award of compensation by reason of the provisions of S.147(5) and S.149(1) of the M.V. Act unless the policy of insurance is cancelled by the authorized insurer and intimation of such cancellation has reached the insured before the accident.'
10. However, in Prasanna B (supra), this Court held that the production of a receipt evidencing despatch by registered post raises a presumption in favour of the insurer that the intimation was sent to the addressee for secured delivery. However, in the present case, though the insurance company has produced documents in support of its contention, it has failed to produce any receipt evidencing the despatch of the registered post purportedly sent to the registered owner, intimating the dishonour of the cheque. Since the insurer did not get an opportunity to produce all these documents before the tribunal and to adduce evidence in respect thereof in order to meet the ends of justice, I find it appropriate to remand this matter back to the tribunal by affording MACA NO. 603 OF 2010 9 2025:KER:55841 the parties one more opportunity to raise and prove their contentions.
Accordingly, the matter is remanded back to the tribunal to consider the issue whether the insurer is liable or not to compensate the claimants in respect of the death of Abdul Rahiman in the accident. The tribunal need not decide afresh the quantum of compensation already awarded by the tribunal. The insurer as well as parties in this case will be at liberty to adduce fresh evidence in accordance with law. The tribunal shall issue fresh notice to the parties before hearing the matter. The tribunal shall decide the matter as expeditiously as possible. The insurer is directed to appear before the tribunal on 14.08.2025.
Sd/-
SHOBA ANNAMMA EAPEN JUDGE SMA