IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 MACA.No. 1043 of 2008() ----------------------------------- OPMV.2077/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/3RD RESPONDENT --------------------------------------------- THE NATIONAL INSURANCE COMPANY LTD., TRIPUNITHURA. BY ADV. MR.RAJAN P.KALIYATH RESPONDENTS/CLAIMANT & R1 AND 2 -------------------------------------------------------- 1. PRASANNA, SMITHA BHAVAN, NADUVILLA VILLAGE, VAIKOM. 2. PEETHAMBARAN, VALALIL HOUSE, CHALAPARAMBU BHAGOM, NADUVILA VILLAGE, VAIKOM. 3. LUKA DEVASSIA, MATTAPPALIL HOUSE, T.V.PURAM, POST VAIKOM, KOTTAYAM. R1 BY ADV. MR.P.M.NATESAN. R3 BY ADV. MR.G.PRABHAKARAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N.KRISHNAN, J. ........................................... M.A.C.A.NO.1043 OF 2008 ............................................. Dated this the 9th day of September, 2009 J U D G M E N T This is an appeal preferred by the insurance company against the award of the Claims Tribunal, Kottayam in O.P. (MV)No.2077/2003. The claimmant was traveling in a bus bearing Registration No.KL 5A 7279. On account of the negligence of the driver, the bus met with an accident resulting in injures to him. The Tribunal quantified the compensation at Rs.22,200/= and negatived the contention of the insurance company that the policy has been obtained by suppressing the material f acts and there is fraud in as much as the vehicle insured is in fact a passenger vehicle whereas it was insured on the representation that it was a goods vehicle. The learned counsel for the insurance company had made available before me a copy of the policy relating to the vehicle. It shows that the vehicle is described as goods carrying commercial vehicle (open) and the type of Policy is B package. I had also gone through the premium collected and there is no payment made to cover : 2 : M.A.C.A.NO.1043 OF 2008 any of the passengers in the bus. But it covers the owner, driver and the third party. When a policy is being taken, it has to be properly represented before the company about the nature of the vehicle and the purpose for which the vehicle is used so that there can be a proper insurance policy which will also cover the risk of the passengers traveling in the vehicle. What had happened in the case is that it is renewed as a goods transport vehicle and it is used as a bus to carry passengers. Therefore there is suppression of materials facts before the insurance company and so I find that the owner has to be made liable for the said wrong representation. 2. As far as the third party is concerned, he has no role to play. The insurance company also should have been careful and they should have perused the documents before renewal of the policy. So, there is fault on their part also or in other wards both the insurance company as well as the owner had not fully applied their mind and a policy is issued to a bus as if it is a goods vehicle. I do not want to deprive a poor claimant from realisation of the amount by : 3 : M.A.C.A.NO.1043 OF 2008 compelling him to run from pillar to post. Therefore, in the fitness of things in this case, I find that the insurance company can be directed to pay the amount and get it reimbursed from the owner. Therefore, the appeal is disposed of by modifying the award and directing the insurance company to pay the amount to the claimant and on satisfaction of the same recover the same from the owner of the vehicle by execution of the very same award. The insurance company is directed not to execute the award for a period of three months so as to enable the owner to pay the amount. M.N.KRISHNAN, JUDGE cl