MATHEW JOSEPH Vs. JANAKI

JUDGEMENT

(1.) This reference has come up before us in terms of the reference order of a Division Bench dated 12/09/2006. The Motor Accidents Claims Tribunal, Thodupuzha had directed award of compensation to the legal representatives of a deceased individual. It was on a finding that a private jeep, wherein he was a traveller, was driven in a negligent manner resulting in the accidental death. The jeep had been registered as a private vehicle, but the finding was that it was used for hire and there was violation of the policy conditions. The Tribunal held that the vehicle owner is liable to pay the amount of compensation, although the initial liability for payment was on the insurer. The insurance company normally would have been liable, however, but was entitled to be exonerated, according to the Tribunal, as there was violation of the policy conditions. It would have been therefore possible for them to proceed against the vehicle owner for reimbursement. The appeal has been filed by the vehicle owner principally contending that the finding about the violation of the policy conditions was without justification. It had been further contended that under S.147 of the Motor Vehicles Act, the insurer was liable to indemnify him in view of the comprehensive policy taken by him.

(2.) The accident had taken place on 09/01/1995. While the matter was being heard, the Division Bench expressed a doubt as regards the relevancy and impact of certain decisions, and the possible conflict, which might have been there, while adverting to and relying upon them. This is principally because, if the argument of the appellant was acceptable, the deceased could have been treated as a gratuitous passenger. With respect to the liability of the insurer, in such cases, according to the learned Judges, there might have been conflict between the view taken by a Full Bench of this Court reported in Oriental Insurance Co. Ltd. v. Ajayakumar, 1999 KHC 441 : 1999 (2) KLJ 319 : ILR 1999 (3) Ker. 321 : 1999 (2) KLT 886 (FB) on the one hand and United India Insurance Co. Ltd. v. Tilak Singh, 2006 KHC 605 : 2006 (4) SCC 404 : AIR 2006 SC 1576 : JT 2006 (4) SC 280 : 2006 (2) SCC (Cri) 344 : 2006 (2) KLT 884 (SC). The later decision was one following the judgment of the Supreme Court in New India Assurance Co. Ltd. v. Asha Rani and Others, 2003 KHC 22 : 2003 (1) KLJ NOC 17 : 2003 (2) SCC 223 : AIR 2003 SC 607 : 2002 (9) Scale 172 : 2003 SCC (Cri) 493 : 2003 (113) Comp Cas 520 : 2003 (2) Guj LR 1001 : 2003 SCC (Cri) 493 : 2002 AIR SCW 5259 : 2003 (1) KLT 165 (SC). The reference order concluded as following:

(3.) Mr. Mathews Jacob, senior counsel appearing on behalf of the 5th respondent insurance company, submitted that as violation of policy conditions also is highlighted and accepted already by the Tribunal, after answering the reference it may be proper that the matter be remitted for consideration on merits appropriately. Mr. Raju Joseph appearing for the appellant has no objection to this course to be adopted.