IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 MACA.No. 1531 of 2004() ----------------------- OPMV.904/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT/PETITIONER: -------------------------------------- SEBASTIAN JOSEPH @ JOBY (MINOR) MAZHUVANCHERIL, VAZHIKADAVU, VAGAMON P.O., REPRESENTED BY HIS FATHER M.D. JOSEPH, MAZHUVANCHERIL, VAZHIKADAVU, VAGAMON P.O. BY ADV. SRI.SHAJI THOMAS PORKKATTIL RESPONDENTS: RESPONDENTS: ------------------------- 1. T.D. ALOSIOUS, PUTHENPURACKAL HOUSE, VAGAMON. 2. THE ORIENTAL INSURANCE CO.LTD., KANJIRAPALLY. BY ADV. SRI.N.NAGARESH FOR R1 SRI.M.JACOB MURICKAN FOR R2 SRI.A.K.RAMACHANDRAN FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2008 ALONG WITH CROSS OBJECTION 31/05, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 1531 of 2004 & CROSS OBJECTION No.31 of 2005 --------------------- Dated this the 15th day of July, 2008 JUDGMENT The appeal is preferred by the claimant for enhancement of compensation as well as to fix the liability on the Insurance Company. Cross Objection is filed by the owner of the vehicle contending that the Tribunal went wrong in not fixing the liability on the Insurance Company. 2. Let me first consider about the liability of the Insurance Company. The Tribunal found that the policy has been obtained by suppression of material facts and therefore the policy is void and so it is not liable to indemnify the owner. The facts of the case would reveal that the car was insured as a taxi and it was being used as a private vehicle. In order to satisfy my conscience, I directed the Insurance Company to produce a copy of the proposal form. It can be very clearly seen from the proposal form that the vehicle is classified as a taxi and again reiterated in column 8 as a contract carriage. In other words, a proposal form has been submitted by the owner of the vehicle describing the vehicle as a taxi (contract carriage). Premium has been paid. Therefore, the policy has been issued in the capacity as a taxi. 3. Learned counsel appearing for the owner of the car would contend that the exception of Sec.19 of the Contract Act would come into MACA No. 1531/04 & Cross Objection 31/05 2 his rescue for the reason that if consent was caused by misrepresentation and if the person whose consent was so obtained had the means of discovering the truth with ordinary diligence, he is entitled to an exception. Here in a case of contract of insurance, a proposal is submitted and basing on the proposal a policy under the ordinary circumstances is issued. Why should a material described fact like the nature of the carriage or car should be wrongly shown is the question. The intention behind it will be known only to that person who does it. It has to be remembered that in this case in spite of notice before the Tribunal, the owner did not enter appearance, contested the case or filed an appeal. But instead of it, comes forward with a cross objection as if it is the responsibility of the Insurance Company to look after his case also. I am not prepared to accept that. It is a settled principle of law that the plead of fraud, plead of undue influence and misrepresentation and coercion are specifically to be pleaded and also so specifically to be denied. It is based on the factual consideration of the pleadings a case regarding coercion or mis- representation can be considered by the court and decided by the court. Just arguing the matter on the basis of the materials available before the Tribunal is not a substitute for pleading or for proof. Therefore, I strongly feel that without a denial of the pleading this question cannot be considered MACA No. 1531/04 & Cross Objection 31/05 3 by this court. Even if it is considered what is the explanation that is given by the owner of the car which made him represent before the Insurance Company in the proposal form to describe the vehicle as a taxi and then again specifically mentioning it as contract carriage whereas as per the registration it is only a private vehicle. The intention of such mis description or misrepresentation is only known to the person who had done it and unless there are satisfactory sufficient materials, the court will not be in a position to cull out the truth of it to understand the intention of the parties. Therefore I cannot accept the contention of the learned counsel. 4. Learned counsel has also relied upon the decision reported in Bhagwani Bai v. Life Insurance Corporation of India [1984 ACJ 769] and Life Insurance Corporation of India v. Baidyanath Singh [1979 ACJ 36]. So far as it relates to Bhagwani Bai v. Life Insurance Corporation of India [1984 ACJ 769] is concerned, it depended on the question of a non disclosure of certain policies previously taken and lapsed. Life Insurance Corporation of India v. Baidyanath Singh [1979 ACJ 36] is concerned, it was regarding the false or inaccurate statement about age. It is always to be borne in mind that some minor materials even if he is a defaulter may not result in making the contract totally nugatory. But here everything is fixed on the class of vehicle which is being used and MACA No. 1531/04 & Cross Objection 31/05 4 the purpose for which it is being used. So what has to be looked into is whether there had been any suppression of material facts which will go deep into the matter. In this case I am confident that there has been willful suppression of a very material fact namely the class of vehicle and the purpose of the vehicle. Therefore the two decisions may not help the learned counsel for the appellant to justify the appellant's stand. Therefore, I agree with the learned Tribunal that there has been a willful suppression of material facts. How such willful suppression of materials facts is something which he should have explained for which he had not ventured. Therefore the point regarding exoneration of the Insurance Company from the liability will stand confirmed. 5. Now it is the question of quantum. The Tribunal found that there was a fracture of the humerus and some abrasions on the left elbow hip. The court also considered that he had undergone Ayurvedic treatment and awarded Rs.500/- towards transport to hospital, Rs.1,000/- for extra nourishment, Rs.250/- towards damages to clothing and Rs.1,500/- towards medical and bystanders expenses. There was no disability certificate produced. The Tribunal awarded Rs.10,000/- towards pain and suffering and Rs.4,000/- towards loss of amenities and enjoyment in life. The Tribunal has considered these matters also in the right perspective MACA No. 1531/04 & Cross Objection 31/05 5 and has awarded a reasonable compensation. It is neither low nor high but just. Therefore that also does not require any interference. Therefore the appeal as well as the cross objection are dismissed but without costs. M.N.KRISHNAN, JUDGE vps