Whether insurer is bound to prove conclusively that intimation of cancellation of policy reached to insured prior to accident

 A period of one week from the date of dispatch can safely be adopted as the time necessary to serve the letter in the ordinary course after which the intimation is presumed to have been served on the addressee. The period is so fixed in the absence of any provision to the contrary for the limited purpose of the cases of this nature to avoid disputes as to the date of receipt of the intimation. The insured in some cases may try to evade the service of notice and the letter would be returned with postal remarks like 'addressee left', 'house locked', 'insufficient address' etc. The burden is on the addressee to rebut the presumption by conclusive evidence that he did not really receive the letter and it is not a case of deliberate avoidance. The burden is not on the insurer to establish conclusively that the intimation of cancellation of insurance coverage was in fact served on the insured or the registering authority. The judgment in M.A.C.A. No. 2471/2015 to the effect that it is the obligation of the insurer to establish the service of the intimation on the addressee is hereby overruled. Needless to say that no liability can be fastened on the insurer for any compensation payable in respect of an accident that occurs after the service of the intimation aforesaid.

IN THE HIGH COURT OF KERALA

M.A.C.A. No. 2017 of 2013

Decided On: 31.10.2018

 Prasanna  Vs.  Kabeer

Hon'ble Judges/Coram:

V. Chitambaresh, P.B. Suresh Kumar and Sathish Ninan, JJ.

Citation: AIR 2019 Kerala 82

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Whether insured can claim damages for damage to his vehicle before civil court in case of motor accident?

Under Section 110 of the Motor Vehicles Act, the jurisdiction of the Claims Tribunal is confined to claims for compensation in respect of accidents involving death of or bodily injury to persons arising out of the use of the motor vehicle or damage to any property of a third party so arising. Apart from the power to adjudicate upon claims for compensation in respect of death or personal injury to persons, the tribunal can adjudicate upon claims for compensation in respect of accidents involving damage to any property of a third party. The jurisdiction of the civil courts relating to the claims of compensation which has to be adjudicated by claims tribunals has been taken away by Section 110F of the Motor Vehicles Act. But as per the proviso to Sub-section (1) of Section 110, the claimant was given an option to move the Civil Court for adjudication of any claim for compensation in respect of damage to the property exceeding Rs. 2000. The Intention of the legislature to have such a provision was to provide for quick disposal of such small claims before the motor accidents claims tribunal whereas the claim for higher amount had to be moved before a Civil Court at the option of the claimant. 

IN THE HIGH COURT OF KERALA

M.F.A. No. 800 of 1992

Decided On: 25.02.2000

General Manager, Kerala State Road Transport Corporation, Thiruvananthapuram

Vs.

 United India Insurance Co. Ltd., Kottayam and Ors.

Hon'ble Judges/Coram:

K.K. Usha and R. Rajendra Babu, JJ.

Citation: 2001 ACJ64kerala

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Whether civil court has jurisdiction to grant damages for damage sustained to property of insured?

In the case of P.N. Vijaywargiya (supra) a Division Bench of this Court answered a reference holding that the Clains Tribunal has jurisdiction in all circumstances to entertain a claim for damage to property simpliciter where a claim for bodily injury or death is also preferred or preferable by a third party.

In the said decision, in Paragraph 10, the Division Bench of this Court expressed the view as under :

"10. The claim for compensation in respect of accidents involving the death of bodily injury may relate to the insured and/or a third party. However, the claim for compensation involving damages to any property to be entertainable before the Claims Tribunal must relate to a third party only and not the insured. The proviso provides for an option lying with the claimant. Where claim for compensation in respect of damage to property exceeds rupees two thousand which would necessarily be of a third party (and not the insured), the claimant may have it adjudicated upon by the Claims Tribunal or may have it referred to a Civil Court for adjudication. Where the claim does not exceed rupees two thousand it has to be tried by the Claims Tribunal. Section 110-F bars the jurisdiction of Civil Court where the claim is entertainable by a Claims Tribunal and a Claims Tribunal has been constituted for that area."
(emphasis supplied)

9. From the aforesaid enunciation of law it becomes crystal clear that only a third party can maintain an application in respect of damages to the property before the Accidents Claims Tribunal. As far as the owner/insured is concerned he cannot maintain an application in respect of claim of his own damages under Section 166 of the Act,

IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)

Civil Revision No. 845/2000

Decided On: 10.08.2000

 National Insurance Co. Ltd.
Vs.
 Santosh Kumar

Hon'ble Judges/Coram:
Dipak Misra, J.

Citation:2001 ACJ 449 MP

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When defence of intoxication of driver of vehicle is not available to insurance company?

The insurer has not led any evidence on Issues
No. 3 to 6. Thus, it can not lie in the mouth of the appellantinsurer
that the driver was driving the offending vehicle in
the state of intoxication. In terms of Section 149 of the
Motor Vehicles, Act, 1988, the ground of intoxication is not
available.
11. This Court in Khem Chand versus Smt. Uma Devi Khem Chand versus Smt. Uma Devi
and others, reported in Latest HLJ 2010 (HP) 1, Latest HLJ 2010 (HP) 1, has laid

down the same principle. It is apt to reproduce para-4 of the
judgment., supra, herein:-
“4. The law is very well settled that a claim
which falls within the purview of an Act
policy i.e. a liability falling within the ambit
of Section 147 of the Motor Vehicles Act,
1988 ( the Act) can only be contested by the
Insurance Company on the grounds
available to it under Section 149 of the Act.
It is not permitted to contest the
proceedings on any other grounds.
Intoxication of the driver is not a ground
available to the Insurance Company under
Section 149 of the Act. Therefore, the
liability, which is statutory under Section
147 of the Act, has to be satisfied by the
insurer. It may be clarified that in case the
insurer in addition to the liability which it is
bound to cover under the Act covers other
liability then in case of such extended
liability, it may raise the defences available
to it as per terms of the policy, but as far as
statutory liability is concerned, the insurer
has no authority to incorporate any term in
the policy which is not contemplated in
terms of Section 149 of the Act. Therefore,
the Insurance Company could not have been
permitted to raise this defence and it could
not be permitted to recover the awarded
amount from the insured.”
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
FAOs No. 580, 581, 589, 590 & 591 of
2008

 Date of decision: 07.08.2015

FAO No. 580 of 2008 of 2008
Oriental Insurance Co. Ltd. 
 V
Smt. Sangeyum & others .

Coram:
The Hon’ble Mr. Justice Mansoor Ahmad Mir . Chief Justice.
Citation;2016(1)ALLMR(JOURNAL)15

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Whether mediclaim can be rejected on the ground that pre-existing disease not known to insured was not disclosed?

Dr. Kundnani seems to have changed his mind subsequently and given certificate on 04/01/2010 stating that the insured had been suffering from this problem not since last three years but for the past three months. Let us assume that this letter was issued with an intention to help the insured and that the insured was suffering from this problem for the past three years. Still, we fail to understand as to how mere complaints of persistent non-resolving pain in left leg could make a layman like the Complainant image that he was suffering from some disorder of nervous system, which he should have disclosed in the proposal form. Contention of the Learned Counsel for the Insurance Company, that such a pain observed when the insured was examined at the Bombay Hospital should be sufficient to attribute to the insured the knowledge that he was suffering from the ailment/disease when he submitted the proposal more than two years prior to the examination by the doctor, cannot at all be accepted. Hindsight is good but, hindsight cannot lead to taking the person back in the scale of time. What the patient came to know in the year 2009 could not have been imagined by him in the year 2008 when he filled-up the proposal form. Therefore, inference that insured knew of his disease and he had suppressed it or did not disclose it was thoroughly unwarranted. We may point out that the Insurance Ombudsman to whom the matter was taken up has merely observed that the ailment was possibly pre-existing. He had not come to the conclusion that the ailment was decidedly pre-existing. For repudiating a claim Insurance Company must show that the ailment was pre-existing to the knowledge of the insured and the insured suppressed material information.

State Consumer Disputes Redressal Commission

Mr. Ashok M. Ahuja vs United India Insurance Co. Ltd. ... on 10 December, 2013
Citation;2015(3) ALLMR(Journal)50

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Insured is not expected to engage a watchman or a guard to look after insured vehicle

This condition does not stipulate that the Insured was expected to engage a watchman or a guard to look after the insured vehicle.  May be ideally, the Complainant’s driver should not have kept the keys of the truck inside the truck but, it is not that he had not locked the doors of the truck and after locking the doors of the truck, he had handed over the keys of the doors of the truck to the owner’s son and this should have been a sufficient safeguard for preventing theft of the insured vehicle, for getting reimbursement from the Insurance Company upon theft of insured vehicle.  Learned Advocate for the Respondent/Complainant vehemently denied the contention raised by the Learned Advocate for the Appellant/Insurance Company to the effect that the driver had kept the keys of the truck inside the truck. In any case, we do not find any perversity in the conclusion reached in the order passed by the District Forum that the Complainant had taken sufficient care of the insured vehicle and there was no breach of any terms & conditions of the insurance policy on the part of the Complainant.

BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI

First Appeal No. A/11/896 (Arisen out of Order Dated 12/08/2011 in Case No. 120/2011 of District Nashik) THE NEW INDIA ASSURANCE COMPANY LTD., ...........Appellant(s) Versus SMT. KUSUM POPAT KARDILE

BEFORE: HON'ABLE MR. JUSTICE R.C.Chavan PRESIDENT HON'ABLE MR. Dhanraj Khamatkar Member

PRESENT: Adv. Smt. Urmila Sanil for the Appellant Adv. Ashutosh Marathe for the Respondent

ORAL ORDER Per – Hon’ble Mr. Justice R. C. Chavan, President  Citation;2014(2) ALLMR(JOURNAL)43

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