IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR WEDNESDAY, THE 2ND JANUARY 2008 / 12TH POUSHA 1929 MFA.No. 262 of 2003() ------------------------------- OPMV.1067/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT: 3RD RESPONDENT IN M.V.O.P. ------------------------------------------------------------ THE MANAGER, ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, P.B.NO.50, ELENJICKAL MATHEW MEMORIAL PLAZA, KOTHAMANGALAM REP. BY THE ASST. MANAGER, MOTOR THIRD PARTY CLAIMS CELL, REGIONAL OFFICE, NORTH RAILWAY STATION ROAD, ERNAKULAM, COCHIN - 682 018. BY ADV. SRI.M.JACOB MURICKAN RESPONDENTS: PETITIONER & RESPONDENTS 1 AND 2 IN M.V.O.P. ------------------------------------------------------------------------------------------- 1. T.M.SAIDU, S/O.MAKKAR, THANIKUNNEL HOUSE, PALLARIMANGALAM KARA, POTHANICADU VILLAGE. 2. SHAJI, S/O.MUSTAFA, NEDUPILLIL HOUSE, KUTTIANCHAL KARA, KUTTAMPUZHA VILLAGE. 3. ABDUL KAREEM K.A., KARIMPARAMKUZHIYIL HOUSE, KULATHOOR P.O., KOTTANGAL MALAPILLY. BY ADV. SRI.P.V.GEORGE(PUTHIYIDAM) SRI.SUNIL CYRIAC THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02/01/2008 ALONG WITH WPC NO. 10339 OF 200, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR ,J. ------------------------------------------------- M.F.A.No.262 of 2003 & W.P.(C) No.10339 of 2005 E ------------------------------------------------- Dated, this the 2nd day of January, 2008 JUDGMENT These two cases arise from a common award passed by the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV) Nos.1067/1999 and 1068/1999. The Original Petitions were filed by the two passengers in a motor vehicle. They sustained injuries in an accident involving a jeep bearing registration No.KRD 9844. In both the petitions it was averred that petitioners were travelling in a jeep bearing registration No.KRD 9844 and when the vehicle reached the place of accident the driver of the jeep due to his rash or negligent driving lost control over the jeep and the same hit against a compound wall, causing injuries to them. Owner and driver of the jeep did not contest the case. Insurer alone contested. The insurer disputed the negligence alleged against the driver. Quantum of compensation claimed also disputed. It was contended that the insurance policy to the jeep was issued as a private vehicle, but in violation of the policy conditions the vehicle was used as a taxi jeep and as such the insurer was not liable to pay compensation. Insurer produced the copy of the policy. No oral evidence was adduced. Tribunal found that claimants were entitled to get compensation. It directed the insurer to pay compensation on the ground that it fails to establish the violation of the policy conditions. Challenging that common award both these MFA No.262/2003 & WP(C) No.10339/2005 -: 2 :- cases are filed. 2. The only question arising for consideration is whether the direction of the Tribunal to the appellant to pay the compensation is legal and proper. It is an admitted fact the policy produced in this case shows that the vehicle was insured as a private vehicle. Ext.B1 is the copy of the policy. Ext.A1 is the copy of FIR and Ext.A2 is the copy of private complaint. Ext.A4 is the copy of final report filed in this case. All these documents show that the vehicle was used as a taxi jeep at the time of accident. So the materials adduced by the claimants themselves show that after obtaining a policy as a private vehicle the same was used as contract carriage for carrying passengers. In Julian v. Peethambaran (1997 (2) KLT 763) a Division Bench of this Court held that in such cases the insurer is not liable to indemnify the insured. So the direction of the Tribunal to the appellant to pay compensation in both the cases is liable to be interfered. It is made clear that since the contention is that there was violation of policy conditions, the insurer is liable to pay the compensation amount and then recover the same from the owner. It is submitted by the counsel for the appellant/petitioner that in the Writ Petition the entire amount was deposited and in the Appeal an amount of Rs.16,377/- was deposited. In the result, the Appeal and Writ Petition are allowed in part. It is ordered that the appellant/Insurer shall pay the compensation found due to the claimants MFA No.262/2003 & WP(C) No.10339/2005 -: 3 :- and then recover the same from the owner in execution of the awards passed in these cases. I.A.No.3687/21005 in M.F.A.No.262/2003 will stand dismissed. K. PADMANABHAN NAIR, JUDGE. cks MFA No.262/2003 & WP(C) No.10339/2005 -: 4 :- K.PADMANABHAN NAIR, J. M.F.A.No.262 of 2003 & W.P.(C) No.10339 of 2005 E JUDGMENT 2nd January, 2008.