IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 MACA.No. 92 of 2009() -------------------------------- OPMV.476/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): IST RESPONDENT ------------------------ BIJU JOSEPH,ADICHILAMAKKAL HOUSE, KANJIRAPPALLY. BY ADV. MR.K.GOPALAKRISHNA KURUP RESPONDENT(S): PETITIONER/ RESPONDENT ------------------------- 1. RAJAN, S/O.KUTTICHAN, PLAKKOOTTATHIL HOUSE, IDAKKUNNAM, PLAPRAKARA, NEAR VIMALAMATHA,CHURCH, KOTTAYAM. 2. JOSEPH MATHEW, MADAKARA HOUSE, PERUVANTHANAM VILLAGE AND KARA PERUVANTHANAM, PO., IDUKKI. 3. ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, KANJIRAPPALLY, KOTTAYAM R2 BY ADVS. MR.C.A.CHACKO R3 BY MR.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN, J. ........................................... M.A.C.A.NO.92 OF 2009 ............................................. Dated this the 23rd day of October, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Pala in OP(MV)No.476/2005. The claimant a passenger in a jeep sustained injuries in a road accident and the Tribunal has awarded him a compensation of Rs.51,600/= with 9% interest and directed the insurance company to pay the amount and recover it from the first respondent. It is against that decision, the owner of the vehicle has come up in appeal. 2. It has to be stated that the policy was taken by suppressing the material facts. Though the vehicle was registered as a maxi cab, the policy was obtained as a private car. So by suppressing the material fact that it was a taxi or maxi cab, the policy was taken. The Tribunal on a consideration of the materials found that there was gross abuse on the insured and it went on to hold that it appears that there was bad faith in the act of the insured. Therefore, the Tribunal directed the insurance company to : 2 : M.A.C.A.NO.92 OF 2009 pay the amount and recover it from the owner. Interestingly, the Tribunal did not consider the question raised in the additional written statement of the insurance company that policy being only an act only policy a passenger in a private vehicle is not covered by the policy. Really it would have put an end to the litigation as far as the liability is concerned. But the Tribunal did not consider it. 3. The learned counsel for the insurance company as well as the appellants had made available before me for perusal a copy of the policy issued and it is only a liability only policy. I have also gone through the payment made and other aspects which contains basic liability, personal accident coverage and legal liability to the driver. So, this act only policy does not cover the risk of a passenger in a private vehicle and therefore the insurance company was really not liable to pay the amount at all. Since the insurance company has not preferred an appeal against the finding, I do not want to disturb that finding already given. I am told that the insurance company has already deposited the amount which the claimants had withdrawn. So on two : 3 : M.A.C.A.NO.92 OF 2009 points the appellant cannot succeed. Firstly, the insurance company has no liability at all for the reason that the policy taken does not cover the risk of a passenger in a private vehicle. Secondly, the person who had taken the policy being fully aware of the fact it was a taxi car or maxi cab had suppressed that fact and taken policy thereby playing fraud on the insurance company. In such circumstances, the owner does not deserve any sympathy and therefore to avoid difficulty to a third party amount has been ordered to be paid to the claimants and to recover the amount form the owner of the vehicle. I do not find any error committed by the court below. 4. Therefore the appeal lacks merit and it is dismissed. I am inclined to grant three months' time to the appellant to pay the amount to the insurance company and till that time the insurance company or the other authorities shall not take any coercive action against the appellant. Observations about the insurance officials shall not be taken as an adverse criticism but only as a correctional commend : 4 : M.A.C.A.NO.92 OF 2009 which they should bear in mind, so that difficulty for all can be avoided. M.N.KRISHNAN, JUDGE cl