IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 MACA.No. 1793 of 2008() ---------------------------------- OPMV.3133/1993 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT/1ST RESPONDENT -------------------------------------------- K.P. ALI, S/O. USSAIN HAJI KALLIKOOTTAM PARAYIL HOUSE PADANILAM POST, ARAMBRAM, KOZHIKODE (DRIVER CUM OWNER) BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS/PETITIONER & 2ND RESPONDENT: ------------------------------------------------------------------------- 1. M.K. MOOSSAKUTTY, S/O. AHAMMED, 55 YEARS, KIZHAKKEYIL HOUSE, CHUNGAPPALLY, EAST VAZHAYOOR POST, MALAPPURAM DISTRICT. 2. DISTRICT INSURANCE OFFICER KERALA STATE INSURANCE DEPARTMENT KOZHIKODE (INSURER). SR.GOVERNMENT PLEADER SRI.V.T.K.MOHANAN FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/12/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA.No. 1793 of 2008 ORDER ON I.A. NO.2340/2008 IN MACA NO.1793/2008 DISMISSED 01/12/2008. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.S. TO JUDGE Rs/ M.N.KRISHNAN, J ===================== MACA No.1793 OF 2008 ===================== Dated this the 1st day of December 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Manjeri in O.P.(MV)No.3133 of 1993. It was an application filed for damages sustained to a boat in an accident. The case is as follows: On 28.8.1993, when the claimant's boat was stationed at Perinkadavu in Kizhuparamba, a lorry bearing Regn.No.KL 11-A 2579 driven by the first respondent in the claim petition reversed the lorry and in that process hit on the boat resulting in damages. The insurance department would contend that the lorry was involved in illicit transport of sand from Chaliar river which was prohibited. The Tribunal, initially awarded a sum of Rs.75,000/- and when the matter came up before this court, this Court remanded the case back to the Tribunal to consider the question whether the insurer is entitled to recover from the insured the amount paid by it to the petitioner. 2. Heard the counsel on both sides. Learned counsel for the appellant very strongly contends before me that there is no evidence to MACA 1793/2008 -:2:- prove any illicit transport of sand and further there is no breach of policy condition so as to entitle the insurance department to get exemption. So far as the transport of sand is concerned, it has to be remembered that the accident took place within the precincts of Chaliar river. A lorry loaded with sand while reversing lost the control and hit on a boat which was in the Chaliar river resulted in damages to it. It is a fundamental principle that men may lie but circumstances will never lie. The presence of Chaliar river, the presence of a boat in the Chaliar river and the presence of sand in the lorry are all established. Government notification regarding ban of removal of sand from Chaliar river is also produced. When such a notification is in force, it has to be held that removal of sand from Chaliar river is an illegal act which is prevented by the Government by virtue of a notification. The conditions of policy especially the general exception (1)(a) reads as follows: “The department shall not be liable in respect of any claim arising whilst the motor vehicle is being used otherwise than in accordance with the limitation as to use”. Prima facie it may appear that transporting of sand is not something which is prohibited. But when there is a Government Notification banning transport or removal of sand from a particular river and when sand is removed from that particular river and loaded in the lorry and transported it amounts to an illegal usage of the lorry for transporting a MACA 1793/2008 -:3:- material which is prevented by the Government Notification. Or, in other words, at the time of the accident, the lorry was used for the purpose for which it was not intended to be used. So the contention of the insurance department that the vehicle cannot be used for that purpose has to be upheld. When it is so, it amounts to breach of policy conditions and what the Tribunal has done is, it has directed the department to pay the amount to the 3rd party and get it reimbursed from the owner, who has committed the breach of policy conditions. Therefore I do not find any mistake committed by the Tribunal in passing the award. Therefore the appeal lacks merit and the same is dismissed. M.N.KRISHNAN, JUDGE Cdp/-