IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1793 of 2008()
1. K.P.ALI, S/O. USSAIN HAJI
... Petitioner
Vs
1. M.K.MOOSSAKUTTY,S/O. AHAMMED ,55 YEARS
... Respondent
2. DISTRICT INSURANCE OFFICER
For Petitioner :SRI.K.M.SATHYANATHA MENON
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :01/12/2008
O R D E R
M.N.KRISHNAN, J
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MACA No.1793 OF 2008
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Dated this the 1st day of December 2008
JUDGMENT
This appeal is preferred against the award of the Motor Accidents
Claims Tribunal, Manjeri in O.P.(MV)No.3133 of 1993. It was an
application filed for damages sustained to a boat in an accident. The case is
as follows: On 28.8.1993, when the claimant’s boat was stationed at
Perinkadavu in Kizhuparamba, a lorry bearing Regn.No.KL 11-A 2579
driven by the first respondent in the claim petition reversed the lorry and in
that process hit on the boat resulting in damages. The insurance
department would contend that the lorry was involved in illicit transport of
sand from Chaliar river which was prohibited. The Tribunal, initially
awarded a sum of Rs.75,000/- and when the matter came up before this
court, this Court remanded the case back to the Tribunal to consider the
question whether the insurer is entitled to recover from the insured the
amount paid by it to the petitioner.
2. Heard the counsel on both sides. Learned counsel for the
appellant very strongly contends before me that there is no evidence to
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prove any illicit transport of sand and further there is no breach of policy
condition so as to entitle the insurance department to get exemption. So far
as the transport of sand is concerned, it has to be remembered that the
accident took place within the precincts of Chaliar river. A lorry loaded
with sand while reversing lost the control and hit on a boat which was in
the Chaliar river resulted in damages to it. It is a fundamental principle that
men may lie but circumstances will never lie. The presence of Chaliar river,
the presence of a boat in the Chaliar river and the presence of sand in the
lorry are all established. Government notification regarding ban of removal
of sand from Chaliar river is also produced. When such a notification is in
force, it has to be held that removal of sand from Chaliar river is an illegal
act which is prevented by the Government by virtue of a notification. The
conditions of policy especially the general exception (1)(a) reads as follows:
“The department shall not be liable in respect of any claim arising whilst
the motor vehicle is being used otherwise than in accordance with the
limitation as to use”. Prima facie it may appear that transporting of sand is
not something which is prohibited. But when there is a Government
Notification banning transport or removal of sand from a particular river
and when sand is removed from that particular river and loaded in the lorry
and transported it amounts to an illegal usage of the lorry for transporting a
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material which is prevented by the Government Notification. Or, in other
words, at the time of the accident, the lorry was used for the purpose for
which it was not intended to be used. So the contention of the insurance
department that the vehicle cannot be used for that purpose has to be
upheld. When it is so, it amounts to breach of policy conditions and what
the Tribunal has done is, it has directed the department to pay the amount to
the 3rd party and get it reimbursed from the owner, who has committed the
breach of policy conditions. Therefore I do not find any mistake committed
by the Tribunal in passing the award. Therefore the appeal lacks merit and
the same is dismissed.
M.N.KRISHNAN, JUDGE
Cdp/-