The Divisional Manager vs P.G.Mohanan Potty

Kerala High Court

The Divisional Manager vs P.G.Mohanan Potty on 20 May, 2024

Author: Mary Joseph

Bench: Mary Joseph

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MRS. JUSTICE MARY JOSEPH
         MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
                           MACA NO. 1158 OF 2014
AGAINST THE AWARD DATED 27.09.2012 IN OP(MV) NO.1988 OF 2004 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM
APPELLANT/2ND RESPONDENT:

             THE DIVISIONAL MANAGER,
             THE NEW INDIA ASSURANCE COMPANY LTD,
             TC 42/82, II FLOOR, GOVT PRESS ROAD,
             THIRUVANANTHAPURAM.
             BY ADVS.SRI.LAL K.JOSEPH


RESPONDENTS/CLAIMANT AND RESPONDENT NO.1

     1       P.G.MOHANAN POTTY
             S/O.P.R.GOPALAKRISHNA POTTI, LEKSHMI NILAYAM,
             KALIKULANGARA, CHERTHALA P.O., ALEPPEY NOW RESIDING AT
             TC 20/3162, DB STREET, KARAMANA,
             THIRUVANANTHAPURAM-695010
     2       E.SETHUMADHAVAN,
             KPV/253-D, KUDAPPANAKUNNU P.O.,
             THIRUVANANTHAPURAM-695009
             R2 BY ADVS.SRI.M.R.ANANDAKUTTAN
                        SRI.MAHESH ANANDAKUTTAN
                        SMT.M.J.SAJITHA


THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON   27.02.2024,     THE     COURT   ON     20.05.2024   DELIVERED   THE
FOLLOWING:
 M.A.C.A.No.1158 of 2014

                                   2




                               JUDGMENT

Dated this the 20th day of May, 2024 The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Thiruvananthapuram (for short 'the Tribunal') on 27.09.2012 in OP(MV) No.1988/2004. The appellant is the insurer of the offending vehicle involved in the motor accident and was also the 2nd respondent in the above Original Petition. Originally the Original Petition was filed under Section 166 of the Motor Vehicles Act, 1988 (for short 'the M.V.Act'). But later, it was amended as if it was one preferred under Section 163 A of the MV Act.

2. A brief narration of the facts involved is made hereunder:-

At about 6:00 a.m. on 27.05.2004 while the petitioner was travelling on the pillion seat of a Kinetic Honda motorcycle bearing Registration No.KL-01-F-4441 along Nedumangad- Palode public road, due to careless and negligent turning of the vehicle by it's rider towards right side, the petitioner was M.A.C.A.No.1158 of 2014 3 thrown on the road and thereby sustained grievous injuries. Raising a claim for `1,50,000/- as compensation against the owner-cum rider of the motorcycle and it's insurer arrayed as respondents 1 and 2, the above Original Petition was filed.

3. Respondents were served with notice from the Tribunal. 1st respondent entered appearance and filed written statement. Admittedly he was the registered owner of the motorcycle bearing Registration No.KL-01-F-4441, but it's ownership was transferred to one Mr.Madhavan Namboothiri, son of Kesavan Embranthiri through an exchange scheme offered by Century Connections, Ayurveda College, Thiruvananthapuram. But in the enquiry held later, it was revealed that the vehicular records were not transferred to his name and the authorities informed. The Original Petition is contended as bad for non-joinder of the transferee as a necessary party. It was contended further that if any liability arose after 06.06.2003 Madhavan Namboothiri being the registered owner, alone will be responsible for that. Admittedly the vehicle was insured with the 2 nd respondent M.A.C.A.No.1158 of 2014 4 covering the date of the motor accident. Compensation claimed was also contended as excessive and devoid of any basis.

4. 2nd respondent in the written statement filed also took up contentions to the effect that the motorcycle bearing Registration No.KL-01-F-4441 involved in the motor accident was insured at the relevant time, but the the policy issued was an Act only one. According to them the victim of the motor accident being a pillion rider and the policy being an Act only one, his risk will not be covered and they are entitled to get exoneration from liability to indemnify the 1 st respondent. Claims raised regarding the age, the occupation, the monthly income, and the nature of injuries sustained by the petitioner were disputed. Compensation claimed was also disputed for being exorbitant.

5. Before the Tribunal Exts.A1 to A11 were marked by the petitioner in evidence. On appreciation of the evidence, the Tribunal found that the motor accident in question was occurred due to the involvement of a motorcycle bearing Registration No.KL-01-F-4441. The Tribunal also found that M.A.C.A.No.1158 of 2014 5 the petitioner had sustained injuries in the motor accident and therefore is entitled to get compensation from the respondents. A sum of `54,013/- was arrived at as the compensation payable. 2 nd respondent was directed to pay it with interest at the rate of 9% per annum from the date of filing of the Original Petition till the date of realisation alongwith proportionate costs.

6. The learned counsel urged that the Tribunal ought not to have fixed liability on the 2 nd respondent to pay the compensation, since the policy issued in respect of the offending vehicle was an Act only one. According to him the certified copy of the policy was produced but it was omitted to be marked in evidence by the Tribunal. According to him, the Tribunal has stated in paragraph 19 of the award under challenge that the policy was not produced for verification. Accordingly the Tribunal found that the vehicle involved in the motor accident was validly insured with the 2 nd respondent and thereby fastened it with liability to indemnify the 1 st respondent.

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7. Trial court records available were examined and a certified copy of the policy was obtained. From the appendix of the impugned award it came to the notice of this Court that it was not marked in evidence. Indisputably, it is an Act only policy.

8. Since the certified copy of the policy was found with the records of the case and it's non marking in evidence can only be taken as an inadvertant omission, interest of justice demands it's marking now in evidence and re-fixation of liability on it's basis. In the above circumstances, the certified copy of the policy found alongwith the records of the case is marked in evidence as Ext.B1.

9. A perusal of Ext.B1 would reveal that it is a liability only policy having coverage only for the risk of third parties who sustained injuries with the involvement of the vehicle insured.

10. The learned counsel for the appellant has relied on Oriental Insurance Co.Ltd. V. Sudhakaran K.V. & Others [2008 (2) KHC 697], where the Apex Court has held that M.A.C.A.No.1158 of 2014 7 pillion rider in a two wheeler, is not to be treated as a third party when the accident has taken place owing to rash and negligent riding of a scooter. It is contended by the learned counsel on the basis of the dictum that the injured being a pillion rider on a two wheeler, is not a third party and therefore, not covered by the policy.

11. As rightly pointed out by the learned counsel for the appellant, Ext.B1 though was issued in respect of the offending vehicle and the date of the motor accident in question being covered, the risk of the petitioner as a pillion rider, is not covered.

12. Thus, the finding of the Tribunal that the 2 nd respondent is liable to indemnify the insured is reversed and liability is fixed on the 1st respondent to pay the compensation stood arrived at in favour of the petitioner.

13. It was argued by the learned counsel on behalf of the 1st respondent that the vehicle involved in the motor accident has already been transferred by him in favour of one Mr.Madhavan Namboothiri and therefore the latter was it's M.A.C.A.No.1158 of 2014 8 owner at the relevant time. According to her, contentions were also taken in the written statement filed in that regard, as well as non-joinder of necessary parties. According to her, documents with reference to the transfer were also produced before the Tribunal. It is noticed that despite the contention taken in that regard and production of documents with a view to establish it, those were omitted to be marked by the Tribunal. According to her the Tribunal even declined the opportunity to adduce evidence and thereby those could not be marked.

14. True that a specific contention regarding transfer of the vehicle in favour of Mr.Madhavan Namboothiri was taken in the written statement filed by the 1 st respondent. Some documents were also seen produced before the Tribunal, but, those were not marked in evidence. Proceedings paper of the Original Petition was examined to see whether the Tribunal is unjustified in declining the 1st respondent with opportunity to adduce evidence, and it is found that the Tribunal was not at fault, but the 1st respondent was, since he failed to make use M.A.C.A.No.1158 of 2014 9 any of the several postings granted by the Tribunal for the purpose. The Original Petition was found posted for hearing after a long gap, but the 1st respondent did not even file an application in the meantime to get the evidence closed, re- opened for marking the documents. Therefore, the contention of the 1st respondent that opportunity was declined to him to adduce evidence is devoid of any merits. He only failed to make use of the opportunity. This is a clear case of laches and negligence on the part of the 1 st respondent in prosecuting the Original Petition. It is in that context, the Tribunal found on the basis of the available materials that the registered owner of the vehicle as on date of the motor accident, the 1 st respondent in the Original Petition is liable to pay the compensation to the petitioner. This Court finds no reason to interfere with. Moreover, arguments as above were advanced by the 1st respondent in the appeal filed by the 2nd respondent. 1st respondent has not raised a challenge by filing an appeal independently against the award.

15. Appeal succeeds for the reasons and is allowed. The M.A.C.A.No.1158 of 2014 10 impugned award to the extent it fixes the liability upon the 2 nd respondent to indemnify the insured is set aside. 1 st respondent being the registered owner cum rider of the motorcycle involved in the motor accident is fastened with liability to compensate the petitioner. 1 st respondent shall pay the compensation stood awarded by the Tribunal alongwith interest fixed by it at the rate of 9% per annum, from the date of filing of the Original Petition till the date of realisation and proportionate costs to the petitioner.

Sd/-

MARY JOSEPH JUDGE MJL M.A.C.A.No.1158 of 2014 11 APPENDIX APPELLANT'S EXHIBITS:

EXT.B1                        :      CERTIFIED COPY OF THE
                                     POLICY




RESPONDENTS' EXHIBITS         :      NIL




                                           /TRUE COPY/


                                           PA TO JUDGE