Jaimon Jose vs Sajikumar

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

          THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN

    WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944

                          MACA NO. 3034 OF 2015

AGAINST THE AWARD DATED 28.4.2014 IN OPMV 574/2005 OF ADDITIONAL

          DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL

                   ,PATHANAMTHITTA / I ADDL. M.A.C.T.

APPELLANT/RESPONDENTNO.2 IN O.P.(MV):

               JAIMON JOSE
               S/O. JOSE, KALLIDUKKIL HOUSE, MATTAKARA P.O.,
               KOTTAYAM TALUK, KOTTAYAM DIST.

               BY ADVS.
               SRI.T.G.RAGESH
               SRI.BINNY THOMAS
               SRI.C.M.GEORGE

RESPONDENTS/PETITIONER/RESPONDENTS 1 & 3 IN O.P.(MV):

    1          SAJIKUMAR
               S/O. KANIPARAMBIL HOUSE, CHENAPPADY P.O., ERUMELY
               SOUTH VILLAGE, KANJIRAPALLY TALUK.PIN 686507

    2          REJIKUMARS/O. PAPPAN, PARACKAL HOUSE, MANNADISALA
               P.O., VECHOOCHIRA.PIN-686505

    3          THE DIVISIONAL MANAGER
               UNITED INDIA ASSURANCE CO.LTD., KOTTAYAM (INSURER).
               PIN-686001.

               BY ADV SRI.PMM.NAJEEB KHAN




        THIS    MOTOR   ACCIDENT   CLAIMS    APPEAL   HAVING   COME   UP   FOR

ADMISSION ON 06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE

FOLLOWING:
 M.A.C.A.No.3034/2015.
                                     2




                               JUDGMENT

This appeal is preferred by the 2 nd respondent in O.P. (MV) No.574 of 2005 on the files of the Additional Motor Accidents Claims Tribunal-I (Addl.District Judge-I), Pathanamthitta. The parties are referred to as per their status in the claim petition unless otherwise specifically mentioned.

2. On 17.01.2005, while the petitioner was travelling on a motor bike as pillion rider through Erumeli-Vechoochira public road, a jeep bearing Registration No. KL-3/A-934 driven by the 1st respondent rashly and negligently, knocked down the motor bike and the petitioner sustained injuries. The 2nd respondent is the owner of the jeep and the 3 rd respondent is its insurer. The petitioner preferred the claim petition under the Motor Vehicles Act claiming a total compensation of Rs.1,45,500/-.

3. Before the Tribunal, respondents 1 and 2 M.A.C.A.No.3034/2015.

remained ex parte. The 3rd respondent insurance company filed a written statement admitting the existence of valid insurance policy with regard to the Jeep. However, they contended that the 1st respondent was not having a valid driving licence at the time of accident and therefore, the insurer is not liable to indemnify the 2 nd respondent. It was also contended that the amount claimed as compensation is excessive.

4. The Tribunal found that the accident happened due to the negligence of the 1st respondent-driver and that the insurer is not liable to indemnify the 2 nd respondent. The Tribunal awarded an amount of Rs.62,880/- as compensation to the petitioner with 9% interest per annum from the date of petition till realisation with proportionate costs. The 3 rd respondent insurer was directed to satisfy the award and 3 rd respondent was given liberty to recover the amount from the 2nd respondent, the owner of the vehicle. Challenging the award to the extent it ordered that the 3 rd respondent is M.A.C.A.No.3034/2015.

entitled to recover the amount from the 2 nd respondent, this appeal is preferred by the 2nd respondent.

5. The learned counsel for the insurance company submits that pursuant to the award, the insurance company has deposited an amount of Rs.78,239/- before the Tribunal and the petitioner has withdrawn the said amount.

6. According to the appellant/2nd respondent, he was not the owner of the Jeep bearing registration No. KL-3/A - 934 at the time of the accident and that he had sold the said vehicle as early as on 2.11.2004 and had no connection with the same whatsoever thereafter. The learned counsel for the appellant also refers to Annexure A2 vehicle mahazar to show that the jeep was in the ownership of one Jayasree at the time of the accident. It is also submitted that the appellant did not contest the claim before the Tribunal since the person who purchased the vehicle had informed the appellant that she would contest the claim before the Tribunal. The learned counsel for the appellant also refers to M.A.C.A.No.3034/2015.

Rule 376 of the Kerala Motor Vehicles Rules, 1989 (for short, 'the Rules') and contended that it shall be the responsibility of the insurance company in an application for compensation to furnish the particulars of the registered owner of the vehicle. Rule 376 of the Rules reads as follows:-

"376. (1) It shall be the responsibility of the insurance company to collect the particulars regarding the registered owner of the vehicle and the driving licence and submit a report thereof to the Claims Tribunal concerned together with other information such as the name of the Insurance Company, the Divisional Office under which the policy has been taken, the number of the policy/Certificate, the period for which the policy subsists and the nature of the insurance liability, immediately on receipt of information regarding the accident from the parties.

(2) The Insurance Companies may require the Regional Transport Officer/Joint Regional Transport Officer concerned to give the details of the accident in Form "Comp. B" to enable them to submit reports under sub- rule(1) and on receipt of such requisition the Regional Transport Officer or the Joint Regional Transport Officer concerned shall provide the necessary details to the Insurance Company."

M.A.C.A.No.3034/2015.

7. In the light of the provisions under Rule 376 of the Rules, the insurance company has the bounden duty to show that the person from whom they seek to recover the compensation is the owner of the vehicle. Annexure A2 vehicle mahazar would indicate that the vehicle was sold to one Jayasree as early as on 2.11.2004. In the said circumstances, I am of the view that the right of the insurer to recover the compensation from the appellant needs to be reconsidered by the Tribunal.

8. Accordingly, the impugned award is set aside to the limited extent of permitting the 3 rd respondent to recover the compensation from the appellant. The Tribunal is directed to consider the issue as to the right of the 3 rd respondent to recover compensation from the appellant afresh with notice to the appellant. Parties are at liberty to adduce evidence before the Tribunal and to make necessary application for impleading proper and necessary parties. M.A.C.A.No.3034/2015.

The parties are directed to appear before the Tribunal on 17.8.2022. It is made clear that the award passed by the Tribunal in favour of the petitioner/1 st respondent and the right of the petitioner to realise the compensation from the 3rd respondent-insurer are confirmed. Since the award in favour of the petitioner/1st respondent is confirmed, he need not appear before the Tribunal. The amount deposited by the appellant as pre-deposit under Section 173 (2) of the Motor Vehicles Act, 1988 shall be released to him in case the Tribunal finds that the appellant was not the owner of the vehicle at the time of the accident.

The appeal is remanded to the Tribunal for fresh consideration to the extent indicated above.

Sd/-

MURALI PURUSHOTHAMAN JUDGE al/-.+