IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 MACA.No. 419 of 2009(B) ---------------------- OPMV.1948/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): 1ST RESPONDENT: ----------------------------------- MATHEW MATHEW, ANIMOOTTIL HOUSE, THATTAKUZHA KARA, THODUPUZHA IDUKKI DISTRICT. BY ADV. SRI.T.V.GEORGE SRI.JIMMY GEORGE (THADATHIL) RESPONDENT(S): PETITIONER/RESPONDENTS: -------------------------------------------------------- 1. JAMES, S/O.JOSEPH, CHETTINARAMPIL HOUSE, KARINILAM KARA, ERUMELY NORTH VILLAGE. 2. O.S.SANTHAKUMARI, KANNELIL HOUSE, KARINILAM KARA, ERUMELY NORTH VILLAGE. 3. THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE COMPANY LTD., KOTTAYAM. ADV. SRI.M.JACOB MURICKAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 419 OF 2009 = = = = = = = = = = = = = = = Dated this the 16th day of October, 2009. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Pala in O.P.(MV)1948/95. The claimant, a pedestrian, sustained injuries in a road accident and the Tribunal awarded him a compensation of Rs.11,500/- and directed the insurance company to pay the amount and recover it from the owner. The reasons for ordering recovery was that a policy was taken as a private vehicle but it was being used as a motor cab and therefore suppressing the material fact that it was being used as a taxi a policy was taken, it amounts really to fraud and therefore the insurance company should not be directed to pay the amount. Now I will straight away refer to one document which will clinch the issue. Some dates are also relevant in this case. The accident took place on 8.3.1994. A perusal of Ext.B4 would show that as per a proceeding dated 6.10.93 the class of vehicle or holder as a motor cab with effect from 9.12.93. M.A.C.A. 419 OF 2009 -:2:- Another document produced that is Ext.B2 would show that the said vehicle was covered by contract carriage permit for the period from 14.12.93 to 13.12.98 and the same was cancelled and surrendered on 20.10.94. So the factum that the vehicle was used as a contract carriage in between 14.12.93 and 20.10.94 is clearly established by Ext.B2 which is a certificate issued by Joint Regional Transport Officer, Thodupuzha. Now the policy that is taken is only a policy for a private cab. From the caption of the policy which is marked as Ext.B1 would reveal that it is a private car B policy and the currency of the policy was between 17.7.93 and 16.7.94. So even on the date of taking the policy the vehicle was used as a taxi car or even if it is subsequently used as a taxi car on the relevant date of the accident there was no policy to cover the vehicle being used as a motor cab for carrying public. So it amounts to either suppression of material facts or failure to intimate the conversion and thereby it has to be stated it is not a case where the vehicle is being used as a public vehicle where as the policy is for a private vehicle. M.A.C.A. 419 OF 2009 -:3:- 2. Learned counsel for the appellant very strongly contends before me that whatever be the policy a pedestrian cannot be affected by the same and therefore irrespective of the nature of policy and as there is a policy the insurance company is bound to indemnify. If that proposition is accepted it will be all against well established norms and principles of insurance of contract. As one is aware an insurance is a contract between the owner and the insurer and parties are governed by the terms of the contract and it is a contract of insurance that governs the field. Here the contract of insurance namely Ext.B1 policy does not envisage a situation to cover a passenger who was travelling as a passenger in a public carriage vehicle. Therefore Ext.B1 policy does not cover the risk of the person. The said contention of the learned counsel cannot be accepted. Actually this is a fit case where the Tribunal should have totally exonerated the insurance company but the Tribunal has permitted the insurance company to pay the amount and recover it and I do not want to interfere with that decision for M.A.C.A. 419 OF 2009 -:4:- the reason that a third party's right need not be affected because he is innocent so far as the taking of policy is concerned. Therefore the finding of the Tribunal that the owner is bound to reimburse the amount to the insurance company is strictly in accordance with law and it does not call for any interference and therefore the appeal is devoid of merits and it is dismissed without costs. M.N. KRISHNAN, JUDGE. ul/-