High Court Kerala High Court

The Oriental Insurance Co Ltd vs K.M.Ebrahim on 27 June, 2008

Kerala High Court
The Oriental Insurance Co Ltd vs K.M.Ebrahim on 27 June, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 859 of 2005()


1. THE ORIENTAL INSURANCE CO LTD.,
                      ...  Petitioner

                        Vs



1. K.M.EBRAHIM, S/O.MUHAMMED,
                       ...       Respondent

                For Petitioner  :SRI.GEORGE CHERIAN (THIRUVALLA)

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :27/06/2008

 O R D E R
                    M.N. KRISHNAN, J.
              = = = = = = = = = = = = = =
                M.A.C.A. NO. 859 OF 2005
            = = = = = = = = = = = = = = =
        Dated this the 27th day of June, 2008.

                     J U D G M E N T

This appeal is preferred against the award of the Motor

Accidents Claims Tribunal, Muvattupuzha in O.P.(MV)94/01.

The Tribunal has awarded a compensation of Rs.22,513/-

with 9% interest per annum from the date of application to

the date of deposit. The Tribunal repelled the contention of

the insurance company regarding its non liability on the

ground that it has not been proved that the violation of the

condition is so fundamental as to have contributed to the

accident. The said finding has been based on the decision of

the Apex Court reported in Swaran Singh’s case National

Insurance Co. Ltd. v. Swaran Singh (2004 (1) KLT

781). A reading of paragraph 102, (iii) and (vi) would reveal

that,

“To avoid its liability towards insured,

the insurer has to prove that the insured

was guilty of negligence and failed to

exercise reasonable care in the matter of

M.A.C.A. 859 OF 2005
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fulfilling the condition of policy regarding the

use of vehicles by duly licensed driver or one

who was not disqualified to drive at the

relevant time.”

The Apex Court further held that,

“Even where the insurer is able to prove

breach on the part of the insured concerning the

policy condition regarding holding of a valid licence

by the driver or his qualification to drive during the

relevant period, the insurer would not be allowed

to avoid its liability towards insured unless the said

breach or breaches of the condition of driving

licence is/are so fundamental as are found to have

contributed to the cause of the accident.”

It is also laid down in that decision,

“The insurance companies are, however, with

a view to avoid their liability must not only

establish the available defences raised in the said

proceedings but must also establish breach on the

part of the owner of the vehicle, the burden of

proof therefor would be on them.”

So unless these ingredients are proved and established

when there is a policy the insurance company cannot get

M.A.C.A. 859 OF 2005
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absolved from the liability to the insurer. The Tribunal

applying the dictum laid down by the Apex Court in the

above said decision has arrived at a finding that there is

nothing to prove those facts and therefore negatived the

contentions of the insurance company. As facts are not

proved, there is no ground to interfere with the decision

rendered by the Tribunal and therefore the MACA is

dismissed.

M.N. KRISHNAN, JUDGE.

ul/-