Kerala High Court
The New India Assurance Company Ltd vs Nusaifa Thasni on 1 August, 2025
M.A.C.A.No.199 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 1ST DAY OF AUGUST 2025 / 10TH SRAVANA, 1947
MACA NO. 199 OF 2020
AGAINST THE AWARD DATED 06/02/2019 IN OPMV NO.786 OF
2015 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
MANJERI.
APPELLANT/2ND RESPONDENT:
THE NEW INDIA ASSURANCE COMPANY LTD.
BRANCH OFFICE 1ST FLOOR,V.V.COMPLEX,CALICUT ROAD,
PERINTHALMANNA,PIN-679322, REPRESENTED BY ITS
ASSISTANT MANAGER, LEKHA VIJAYAN.
BY ADV SHRI.LAL K.JOSEPH
RESPONDENTS/PETITIONER, 1ST RESPONDENT:
1 NUSAIFA THASNI, AGED 18 YEARS,
D/O.K.V.MOHAMMED MUSTHAFA, KOORIYATTU
VATTAPARAMBIL HOUSE, NENMENI AMSOM,
THACHINGANADAM.P.O, MALAPPURAM DISTRICT-679325.
2 NARAYANAN.C,
S/O.KUTTY AYYAPPAN.C, CHERIKKAMIL HOUSE,
MELATTUR AMSOM, CHEMMANIYODE.P.O,
PATTIKKAD VIA,MALAPPURAM DISTRICT-679325.
BY ADVS.
SHRI.P.VENUGOPAL
SRI.P.SAMSUDIN
SRI.M.ANUROOP
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 30/07/2025, THE COURT ON 01/08/2025 DELIVERED THE
FOLLOWING:
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C.S.SUDHA, J.
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M.A.C.A.No.199 of 2020
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Dated this the 1st day of August 2025
JUDGMENT
This appeal has been filed under Section 173 of the
Motor Vehicles Act, 1988 (the Act) by the second
respondent/insurer in O.P.(MV) No.786/2015 on the file of the
Motor Accidents Claims Tribunal, Manjeri (the Tribunal),
aggrieved by the Award dated 06/02/2019. The respondents
herein are the claim petitioner and the first respondent in the
petition. In this appeal, the parties and the documents will be
referred to as described in the original petition.
2. According to the claim petitioner, on
05/01/2015 at about 08:30 a.m., while she was walking along the
side of the road at the place by name Pattikkad, car bearing
registration no.KL-53/A-4624 driven by the first respondent
knocked her down, as a result of which she sustained grievous
injuries.
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3. The first respondent-owner cum driver of the
offending vehicle did not file written statement.
4. The second respondent-insurer filed written
statement contending that the vehicle had no valid insurance
policy at the time of the accident. The averments regarding the
injuries and treatment availed by the petitioner were disputed.
The amount claimed was contended to be exorbitant.
5. Before the Tribunal, no oral evidence was
adduced by the claim petitioner. Exts.A1 to A6 series were
marked on the side of the claim petitioner. RWs. 1 and 2 were
examined and Exts.B1 to B4 series were marked on the side of the
second respondent. Ext.X1 was marked as third party document.
6. The Tribunal on consideration of the oral and
documentary evidence and after hearing both sides, found
negligence on the part of the first respondent-driver of the
offending vehicle resulting in the incident and hence awarded an
amount of ₹1,63,000/- together with interest @ 9% per annum
from the date of the petition till realisation along with
proportionate costs. Aggrieved by the Award, the second
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respondent/insurer has come up in appeal.
7. The only point that arises for consideration in
this appeal is whether there is any infirmity in the findings of the
Tribunal calling for an interference by this Court.
8. Heard both sides.
9. It was submitted by the learned counsel for the
second respondent/insurer that there was no valid insurance policy
at the time of the accident. Ext.B1 was issued only on 05/01/2015
at 12:03:49 p.m. whereas the accident took place on the same day
at 08:30 a.m. This would make it clear that there was no policy
on the date of the incident. The policy was obtained suppressing
the occurrence of the accident, which is suppression of a material
fact. In the appeal memorandum, referring to the dictum in
Mithoolal Naik v. Life Insurance Corporation of India, AIR
1962 SC 814 it is contended that suppression of material facts
while issuing a policy amounts to fraud in obtaining the policy
and hence the same vitiates the policy.
9.1. Per contra, it was submitted by the learned
counsel for the claim petitioner as well as the first
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respondent/owner cum driver that Ext.B1 policy itself would
show that the policy commenced from 12:00:01 a.m. on
05/01/2015. Merely because the document was generated at
12:40:02 hrs. only, would not mean there was no policy at the
time of the accident. In support of the argument, reference was
made to the dictum of the Apex Court in New India Assurance
Company Ltd. v. Ram Dayal, 1990 KHC 177 : (1990) 2 SCC
680 and judgment of a Single Bench of this Court in Shaji v.
Varghese, 2025 KLT OnLine 2523.
10. In the written statement filed by the third
respondent/insurer, it is true that the terms fraud or
misrepresentation have not been specifically stated. However, the
pleadings read thus –
“(1) This respondent specifically denies the
insurance coverage to Maruthi Car KL-53/A-4624 at 8-30
AM on 05-01-2015, which is the time of accident in this
case. This respondent submits that only at 12:03:49 PM on
05-01-2015 this respondent issued a policy to the vehicle
KL-53/A-4624, which means there was no policy cover to
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the vehicle KL-53/A-4624 at 8-30 AM on 05-01-2015.
Previous policy of the vehicle expired on 28/4/14.
2. Date of accident in this case is on 05-01-2015
at 8-30 AM. Policy in this case is also issued on 05-01-2015
and in the 1st page of the Final Report filed by Melatoor
Police in Crime No.23/15, offences shown are U/s 279, 338
IPC and u/s 146 r/w 196 of the Motor Vehicles Act and in
Vehicle Releasing Kacheet to Respondent No.1 which is
dated 19-01-2015 also u/s 146 r/w 196 of the Motor
Vehicles Act is there which shows that there was no
insurance policy to the vehicle at the time of the accident in
this case.”
10.1. To establish the aforesaid contention, the second
respondent examined RW1 and RW2. RW1, the then Divisional
Manager, deposed that in case a policy is renewed before its
expiry, the renewal will then take effect from the midnight of the
day on which the policy expires. In the case on hand, Ext.B1
policy was issued on 05/01/2015 at 12:40:02 p.m. only, which
entry is Ext.B1(a). Though it was taken only in the afternoon,
since the policy is a system generated one, the time would
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automatically read as midnight of the day on which the policy was
issued. In Ext.B1, time of commencement of policy issued ought
to have been manually corrected. But due to an omission on the
part of the agent, which was not reported to the insurer, Ext.B1
came to be issued with starting period of the policy stated to be
from 12:00:01 a.m. on 05/01/2015. As Ext.B1 policy was issued
only in the afternoon which was after the accident occurred, there
was no valid insurance at the relevant time. In the cross
examination conducted on behalf of the claim petitioner, RW1
deposed that he does not know whether the owner/insured had
entrusted the premium to the agent before the expiry of the policy.
RW2, the agent who renewed the policy deposed that it was on
the basis of telephonic instructions he received from the first
respondent/owner, Ext.B1 policy came to be issued. According to
RW2, the premium amount had not been given to him by the first
respondent/insured when the policy was issued on 05/01/2015 in
the afternoon.
11. An interesting aspect that needs to be noted is
that pursuant to Ext.B3 final report/charge sheet alleging
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commission of offences punishable under Sections 279, 338 IPC
and Section 146 read with Section 196 of the M.V. Act, the first
respondent herein, namely, the accused in the aforesaid crime
appeared before the jurisdictional magistrate and pleaded guilty of
the offences alleged against him. The relevant portion of the
judgment dated 19/08/2016 in C.C.No.270/2015 of the Judicial
First Class Magistrate -II, Perinthalmanna reads thus –
” In the result, the accused is found guilty u/s.279 and
338 IPC and convicted thereunder. He is sentenced to pay a
fine of Rs. 750/- u/s. 279 IPC, and Rs.750 u/s. 338 IPC &
Rs.750/- u/s.146 r/w 186 of the MV Act. IDSI for 22 days.”
(Emphasis supplied)
12. It was submitted by the learned counsel for the
first respondent/owner that the judgment of a criminal court is not
binding on a civil court or the Tribunal and therefore, the same is
of no consequence. After having appeared before the
jurisdictional magistrate and pleaded guilty to the offences alleged
against him, including the offence under Section 146 read with
186 of the Act, which is absence of an insurance policy at the
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relevant time, the first respondent-owner cannot be heard to
advance such an argument before this Court.
13. Be that as it may, a perusal of Ext.B1 shows that
the period of cover of the policy is from 05/01/2015, 12:00:01
a.m. to 04/01/2016 11:59:59 p.m. Ext.B1(a) entry shows that the
document was generated by RW2, the agent, on 05/01/2015 at
12:40:02 hrs. which is apparently after the accident which took
place at 08:30 a.m. on the very same day. Here, I refer to the
dictum of the Apex Court in Ram Dayal (Supra), in which case
the insurance policy was valid till 31/08/1984. Though the
policy could be renewed, instead of obtaining a renewal, a fresh
insurance was taken from 28/09/1984, which was on the date of
the accident. The insurer repudiated its liability by maintaining
that the policy had been taken after the accident and therefore it
had no liability to meet the Award of compensation against the
owner. The Tribunal accepted the stand of the insurer and
rejected the claim of the insured. In appeal, the High Court took
the view that the insurance policy obtained on the date of the
accident became operative from the commencement of the date of
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insurance, that is, from the previous midnight and as the accident
had taken place on the date of the policy, the insurer would
become liable. In appeal, the Apex Court held that when a policy
is taken on a particular date, its effectiveness is from the
commencement of the date and therefore the High Court was right
in holding that the insurer was liable in terms of the Act to meet
the liability of the owner under the Award.
In the case on hand, it appears that the first
respondent/insured took the policy immediately after the incident
realising the consequences. In the light of the dictum in Ram
Dayal (Supra), it can only be held that the challenge by insurer
cannot succeed. In the result, the appeal is dismissed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms