IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 22ND MAY 2008 / 1ST JYAISHTA 1930 MFA.No. 251 of 2001(B) ---------------------- OPMV.3370/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT: 3RD RESPONDENT: --------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD., MANJERI, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI – 18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS: RESPONDENTS: -------------------------------------------------- 1. MOHAMMED FAIZAL K.P.(MINOR), REP. BY GUARDIAN/FATHER KUNDAN PEEDIYAKKAL ALAVI, KUNNUMMAL, MALAPPURAM. 2. K.P.SIVASANKARAN, S/O.MARAYANAN, KARUKAPURAYIL HOUSE, OORAKAM – KEEZHUMURI. 3. T.K.ABDULLA, S/O.T.K.AHAMMED HAJI, PAYAMIYA MANZIL, POST PARAPPANANGADI. R1 BY ADV.SRI.M.K.CHANDRA MOHANDAS R3 BY ADV. SRI.PEEYUS A.KOTTAM THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.2706/2001 IN M.F.A.NO.251/2001 DISMISSED 22/05/2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE M.N.KRISHNAN, J. -------------------------- M.F.A. No. 251 OF 2001 --------------------- Dated this the 22nd day of May, 2008 JUDGMENT This appeal is preferred against the order of the Motor Accidents Claims Tribunal, Manjeri, in OP(MV) No.3370/94. The 1st respondent/petitioner sustained injury in a road accident. The court below awarded a total compensation of Rs.12,250/- with a direction to the Insurance company to pay the said amount. It is also seen that the appellant/Insurance company will be entitled to realise the amount from the owner of the vehicle. The appeal is preferred by the Insurance company. 2. The Insurance company would contend that there was no policy at the time of accident and therefore it is not liable to indemnify the owner. The accident had taken place on 12.2.94. The Insurance company had produced Exts.B1 to B4 to establish its non- liability. Ext.B1 is the cheque dated 10.11.93 issued by the owner towards the premium. Ext.B2 is the letter sent by the Insurance company to the owner intimating the dishonour of the cheque and cancellation of the insurance policy. It has been received by the MFA NO.251/01 2 owner on 17.12.93. Ext.B4 is the another letter to the same effect. The court below in the light of the decision reported in New India Assurance Co. Ltd. v. Shamsed [2000 (2) KLT 67] held that the dishonour of the cheque will not disentitle the third party from claiming compensation and therefore directed the Insurance company to pay the amount and realise it from the owner. Now the liability of the Insurance company in such cases has been decided by the Apex court in the light of the decision reported in Deddappa v. National Insurance Co. Ltd. [2008 (1) KLT 296 (SC)]. It has held in that case that when the cheque issued towards premium is dishonoured and the policy is cancelled and intimation is given to the insured then the contract of insurance is cancelled and therefore the Insurance company would not be liable to satisfy the claim. As far as owner is concerned, the dishonour of the cheque and the intimation of cancellation of the policy has been duly informed to the insured who had kept quiet. Therefore, the Insurance company is not bound to indemnify the owner. It is true that in the reported case invoking the extra ordinary jurisdiction under Article 142 of the Constitution of India, the Apex court directed the Insurance company to pay and realise the amount from the owner. But that cannot be done by this MFA NO.251/01 3 court. Therefore there is merit in the contention of the appellant. The award of the MACT fixing the liability on the Insurance company is to be vacated. 3. Therefore, the appeal is allowed and the Insurance company is exonerated from the liability and the claimant is entitled to realise the amount from the owner. Therefore the modified award is passed as follows: The claimant is awarded a compensation of Rs.12,250/- with 12% interest from the date of petition till realisation with a cost of Rs.1,000/- from respondents 2 and 3 in the appeal i.e. the driver and owner jointly and severely. The appellant is exonerated from the liability. M.N.KRISHNAN, JUDGE vps MFA NO.251/01 4 MFA NO.251/01 5 MFA NO.251/01 6