IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 31ST JULY 2007 / 9TH SRAVANA 1929 MFA.No. 430 of 2000 ---------------------------------- OPMV.731/1983 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/4 th RESPONDENT: THE NEW INDIA ASSURANCE CO. LTD., TRIVANDRUM REP. BY ITS ASST. MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) SRI.K.JACOB MATHEW RESPONDENTS/CLAIMANTS/RESPONDENTS 1 TO 3, 5 & 6: 1. MARIAMMA KURUVILA, W/O LATE T.K.KURUVILA, THEKKEPLATHANATHU (KUTTIKATTU), MANARCADU P.O., KOTTAYAM. 2. ACHAMMA GEORGE, WIDOW OF T.K.GEORGE, DO. DO. 3. SEENA T.GEORGE, C/O ACHAMMA GEORGE (MINOR) REP. BY ACHAMMA GEORGE, MOTHER GUARDIAN. 4. LEELAMMA CHACKO, POTTEDATHIL HOUSE, KATTACHIRA P.O., KIDANGOOR, KOTTAYAM. 5. SANTHAMMA VARGHESE, ATTACHIRA PUTHUPPARAMBIL HOUSE, PARIYARAM P.O., VAKATHANAM, KOTTAYAM. 6. T.K.JOSEPH, THEKKEPLATHENATHU, MANARCADU, KOTTAYAM. 7. Dr.ALEX THOMAS, EYE SPECIALIST, MEDICAL COLLEGE HOSPITAL, GANDHINAGAR, RESIDING AT MATTEETHARA HOUSE, CHALUKUNNU, KOTTAYAM. 8. V.P.KURUVILA, THEKIL HOUSE, AMAYANNOOR, MANARCADU. 9. THE UNITED INDIA INSURANCE CO., KOTTAYAM. 10. JOY, KOMARAKODATHU, AMAYANNOOR, MANARCADU (DRIVER OF JEEP). 11. C.CJOSEPH, VADAKKE ENACHIRAYIL, KAPPUMTHALA, KADUTHURUTHY, BY ADV. SMT.M.R.MINI SRI.K.SANDESH RAJA SRI.V.G.ARUN. SRI.T.P.VARGHESE SRI.PHILIP T.VARGHESE SRI.SUNIL CYRIAC THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31/07/2007,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.2608/2000 IN MFA 430/2000 DISMISSED 31.7.2007 SD/-J.B.KOSHY, JUDGE SD/-K.P.BALACHANDRAN, JUDGE /TRUE COPY/ J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.F.A.No. 430 of 2000 --------------------------------- JUDGMENT Koshy, J. The legal representatives of a motor accident victim applied for compensation. The Tribunal found that the accident occurred due to the negligent driving of the vehicle insured with the appellant Insurance Company and awarded Rs.96,000/- with interest as total compensation. That award is challenged by the Insurance Company in this appeal contending that the Tribunal ought to have directed them to pay only Rs.50,000/- as there was limitation of liability. Exhibit B4 policy is an Act Policy. The accident occurred on 27.10.1980 during the currency of the Motor Vehicles Act, 1939. Limitation of liability was mentioned in Exhibit B4 policy and therefore, the owner and the driver are liable to pay the balance amount of compensation and not the Insurance Company, as MFA 430/00 2 their liability is limited to Rs.50,000/- with corresponding interest. The present impugned order was passed after remand by this Court. The original application was filed in 1981. Exhibit B4 policy was produced by the Insurance Company only in 1997. The Insurance Company failed to produce the documents at the initial stages and filed the written statement only on 3.10.1997, contending that as per the terms and conditions of the policy, the liability of the company is limited to Rs.50,000/-. 2. It is well settled law that it is for the Insurance Company to plead the prove the defences. But, this Court, while remanding the matter, directed the Tribunal to consider the same also. The Tribunal held that even though there was limitation of liability under Exhibit B4 policy, since the Insurance Company produced the documents and filed written statement only after 1 ½ decades, after the specified period, the claimants/ MFA 430/00 3 dependants of the poor victim cannot be denied the benefit and cannot be asked to run after the owner, etc. Therefore, the Insurance Company has to deposit the compensation amount. The Tribunal also referred to the decision of the Apex Court in British Indian General Insurance Co. Ltd., Bombay v. Smt.Maya Banerjee (AIR 1986 SC 2110). In that case the Supreme Court directed the Insurance Company to pay the same in view of the delay. In this case, the accident occurred on 27.10.1980. As pointed out by the Tribunal, the insurance policy was produced and the written statement was filed only in 1997, stating that there is limitation of liability. But, the owner did not produce the policy. In the above circumstances, on the facts of this case and considering the long delay in producing the documents, the Insurance Company is liable to deposit the compensation amount and recover the same from the insured and the driver, in excess of the amount of Rs.50,000/- with MFA 430/00 4 interest. The appeal is, thus, partly allowed. (J.B.Koshy, Judge) 31st July, 2007 (K.P.Balachandran, Judge) tkv MFA 430/00 5 J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.F.A.No. 430 of 2000 --------------------------------- JUDGMENT 31st July, 2007