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Kerala High Court
Suleikha vs Arunkumar ( Deleted ) 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. 3991 OF 2018
AGAINST THE AWARD DATED 29.05.2018 IN O.P(M.V)NO.575 OF 2015 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR
NAME AND ADDRESS OF THE APPELLANTS/CLAIMANTS:
1 SULEIKHA, AGED 49 YEARS, D/O.HASSAN,
PUTHENPURAYIL HOUSE, KADAMBETHMOOLA, KARIMUGAL P.O.,
PUTHENCRUZ VILLAGE, PIN-682 303.
2 SHEREEF, AGED 30 YEARS, S/O.AMEERJAN,
PUTHENPURAYIL HOUSE, KADAMBETHMOOLA, KARIMUGAL P.O.,
PUTHENCRUZ VILLAGE, PIN-682 303.
3 SHANU, AGED 28 YEARS, S/O.AMEERJAN,
PUTHENPURAYIL HOUSE, KADAMBETHMOOLA, KARIMUGAL P.O.,
PUTHENCRUZ VILLAGE, PIN-682 303.
BY ADV. SMT.AMRIN FATHIMA
NAME AND ADDRESS OF THE RESPONDENTS/RESPONDENTS:
*1 ARUNKUMAR ( DELETED )
S/O.SURENDRAN, VATTITTUPARAMBU HOUSE, KEDAMANGALAM,
NORTH PARAVOOR, PIN-683 513.
*2 ABRAHAM K OOMEN, (DELETED)
S/O.OOMEN, 18/447, KADOOPARAMBIL, THRIPUNNITHURA,
PIN-686613.
3 FUTURE GENERALI INDIA INSURANCE COMPANY LIMITED
1ST FLOOR, MUSCAT TOWERS, DOOR NO.28/3318-B1, S.A.ROAD,
KADAVANTHARA, COCHIN, PIN-682 020.
*4 AMEERJAN, (DELETED)
S/O.MOIDEEN, C/O.BEEVI, PUTHUSSARYKUDIYIL HOUSE,
ENANALLOR P.O., PUNNAMATTOM, MUVATTUPUZHA,PIN-686673.
*(RESPONDENT NOS. 1,2 AND 4 ARE DELETED FROM THE PARTY
ARRAY AT THE RISK OF APPELLANT, AS PER ORDER DATED
20/06/2019 IN IA NO.1/2019 IN MACA 3991/2018.)
R3 BY ADV.SRI.THOMAS M.JACOB
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 20.05.2024, ALONG WITH MACA NOS.1356/2019 AND 1598/2019 THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
2
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. 1356 OF 2019
AGAINST THE AWARD DATED 29.05.2018 IN O.P(M.V) NO.550 OF
2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR
APPELLANT/3RD RESPONDENT IN OP(MV):
FUTURE GENERALI INDIA INSURANCE COMPANY LIMITED,
A COMPANY INCORPORATED UNDER THE COMPANIES ACT,
HAVING ITS REGISTERED OFFICE AT INDIA BULLS
FINANCE CENTRE, TOWER 3, 6TH FLOOR, SENAPATI BAPAT
MARG, ELPHINSTONE (W), MUMBAI, PIN-400013 AND
REGIONAL OFFICE AT 3RD FLOOR, CENTRAL WAREHOUSING
CORPORATION BUILDING, MAVELI ROAD, KADAVANTHARA,
KOCHI, PIN-682020,
REPRESENTED BY ITS ASSISTANT MANAGER-LEGAL,
ALICE JOHN, AGED 40 YEARS, W/O.RONIO BABU.
BY ADV.SRI.THOMAS M.JACOB
RESPONDENTS/PETITIONERS AND 1ST AND 2ND RESPONDENTS IN
OP(MV):
1 SUNITHA SUNIL,AGED ABOUT 42 YEARS,
W/O.LATE SUNIL, PALIATHPARAMBU, PONNARIMANGALAM,
MULAVUKAD VILLAGE, ERNAKULAM, PIN-682 504.
2 PARVATHY, AGED ABOUT 18 YEARS,
D/O.LATE SUNIL, PALIATHPARAMBU, PONNARIMANGALAM,
MULAVUKAD VILLAGE, ERNAKULAM, PIN-682 504.
3 ARUNKUMAR, AGE NOT KNOWN, S/O.SURENDRAN,
VATTITTUPARAMBU HOUSE, KEDAMANGALAM,
NORTH PARAVOOR, PIN-683513.
4 ABRAHAM K.OOMMEN, AGE NOT KNOWN, S/O.OOMMEN,
18/447, KADOOPARAMBIL, THRIPUNITHURA, PIN-686613.
BY ADVS.SMT.AMRIN FATHIMA
SRI.PETER THARAKAN
SRI.FRANCIS PETER THARAKAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 20.05.2024, ALONG WITH MACA NOS.3991/2018 AND
1598/2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
3
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. 1598 OF 2019
AGAINST THE AWARD DATED 29.05.2018 IN O.P(M.V) NO.575 OF
2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR
APPELLANT/3RD RESPONDENT IN OP(MV):
FUTURE GENERALI INDIA INSURANCE COMPANY LIMITED
A COMPANY INCORPORATED UNDER THE COMPANIES ACT,
HAVING ITS REGISTERED OFFICE AT INDIA BULLS
FINANCE CENTRE, TOWER 3, 6TH FLOOR, SENAPATI
BAPT MARG, ELPHINSTONE (W), MUMBAI, PIN - 400013
AND REGIONAL OFFICE AT 3RD FLOOR, CENTRAL
WAREHOUSING CORPORATION BUILDING, MAVELI ROAD,
KADVANTHARA, KOCHI, PIN - 682020,
REPRESENTED BY ITS ASSISTANT MANAGER-LEGAL,
ALICE JOHN, AGED 40 YEARS, W/O.RONIO BABU
BY ADV THOMAS M.JACOB
RESPONDENTS/PETITIONERS AND 1ST, 2ND AND 3RD RESPONDENTS
IN OP(MV):
1 SULAIKHA, AGED ABOUT 50 YEARS,
D/O. HASSAN, PUTHENPURAYIL HOUSE,
KADAMBETHMOOLA, KARIMUGAL P. O.,
PUTHENCURIZ VILLAGE, PIN - 682303
2 SHEREEF, AGED 31 YEARS, S/O. AMEERJAN,
RESIDING AT PUTHENPURAYIL HOUSE, KADAMBETHMOOLA,
KARIMUGAL P.O., PUTHENCURIZ VILLAGE,
PIN - 682303
3 SHANU, AGED 29 YEARS, S/O.AMEERJAN,
RESIDING AT PUTHENPURAYIL HOUSE, KADAMBETHMOOLA,
KARIMUGAL P.O., PUTHENCURIZ VILLAGE,
PIN - 682303
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
4
4 ARUNKUMAR, AGE NOT KNOWN, S/O. SURENDRAN,
VATTITTUPARAMBU HOUSE, KEDAMANGALAM,
NORTH PARAVOOR, PIN - 683513
5 ABRAHAM K. OOMMEN, AGE NOT KNOWN,
S/O.OOMMEN, 18/447, KADOOPARAMBIL,
THRIPUNITHURA, PIN - 686613
6 AMEERJAN, AGED NOT KNOW, S/O. MOIDEEN,
C/O. BEEVI, PUTHUSSARYKUDIYIL HOUSE,
ENANALLOOR P.O., PUNNAMATTOM, MUVATTUPUZHA,
PIN - 686 673
BY ADV R1, R2, R3 BY SMT.AMRIN FATHIMA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 20.05.2024, ALONG WITH MACA NOS.3991/2018 AND
1356/2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
5
JUDGMENT
Dated this the 20th day of May, 2024 All these appeals are originated from an award passed by Motor Accidents Claims Tribunal, North Paravur (for short 'the Tribunal') in O.P(M.V) Nos.575/2015 and 550/2015 respectively. The award has been passed on 29.05.2018.
2. Claims have been raised seeking compensation by the rider as well as the pillion rider of a motorcycle bearing registration No.KL 39C 2687 against the driver, the owner and the insurer of a container lorry bearing registration No.KL 36B 3009. MACA Nos.1356/2019 and 1598/2019 have been filed by the 3rd respondent before the Tribunal in O.P(M.V.) Nos.550/2015 and 575/2015 challenging the liability fixed on the driver of the container lorry bearing registration No.KL 36B 3009 and M.A.C.A.Nos.3991/2018, 1356 & 1598/2019 6 consequently on the insurer, to indemnify the insured for the compensation arrived at as payable. M.A.C.A No.3991/2018 was filed challenging the quantum of compensation stood awarded by the Tribunal in favour of the petitioners in O.P(M.V.) No.575/2015. O.P(M.V) No.575/2015 was filed by the legal representatives of the rider of the motorcycle who died in the motor accident in question.
3. The facts of the case in brief are narrated hereunder:
On 16.05.2015 at about 11 p.m one Mr.Sheffin was riding a motorcycle bearing registration No.KL 39 C 2687 along Seaport-Airport road with one Ms.Shreya as pillion rider, it hit on the back of a container lorry bearing registration No.KL 36B 3009 which was parked on the side of the road in violation of the traffic rules and regulations. Both of them sustained serious injuries in the motor accident and succumbed to those at the accident spot M.A.C.A.Nos.3991/2018, 1356 & 1598/2019 7 itself. Claiming compensation for the death of the rider as well as the pillion rider in the motor accident the legal representatives of each of them have approached the Tribunal. The driver, the owner and the insurer of the container lorry were arrayed as respondents in the Original Petitions seeking compensation.
4. All respondents were served with notice from the Tribunal but respondent No.1 in both Original Petitions and respondent No.4 in O.P(M.V) No.575/2015 remained absent and therefore, were declared as ex parte. Respondents 2 and 3 entered appearance and filed written statements before the Tribunal. Separate written statements were filed by the 2nd respondent in both the Original Petitions. It was contended that the claim petition is not maintainable either in law or on facts, that the monthly income claimed by the petitioners are incorrect, that the motor accident was occurred solely due to the negligence of the rider of the motorcycle, that negligence M.A.C.A.Nos.3991/2018, 1356 & 1598/2019 8 cannot be attributed to the driver of the container lorry who was arrayed as the 1st respondent, since it was parked on the side of the road, that the rider of the motorcycle had ridden it without holding a driving licence at the relevant time and that the compensation claimed under various heads is excessive and without any basis. 2nd respondent also sought for dismissal of the Original Petitions for the reasons.
5. The 3rd respondent has filed written statement in both the Original Petitions raising contentions that the claim petitions are not maintainable either in law or on facts, that the Original Petitions are bad for non joinder of necessary parties since the owner as well as the insurer of the motorcycle were not arrayed as respondents in the Original Petitions, that the motor accident was occurred not due to the negligence of the 1 st respondent, that it was occurred solely due to the negligence of the rider of the motorcycle, that the time of accident, the age, the M.A.C.A.Nos.3991/2018, 1356 & 1598/2019 9 income and the occupation of the deceased as pleaded in the Original Petitions are incorrect, that the compensation claimed under various heads is excessive and without any basis. Thus the 3rd respondent also sought for dismissal of the Original Petitions seeking compensation.
6. Before the Tribunal, evidence was adduced in O.P(M.V) No.575/2015 as the leading case and it consists of Exts.A1 to A12 marked on the side of the petitioners and Exts.B1 and B2, on the side of the respondents. The Tribunal found after dealing with the issues raised that the 1st respondent, who was the driver of container lorry at the relevant time was responsible for causing the motor accident. The Tribunal has also arrived at the compensation payable in favour of the petitioners in both the Original Petitions and directed the insurer of the container lorry, who was arrayed as the 3rd respondent to indemnify the insured. Aggrieved by the awards passed in both the Original Petitions, the 3 rd respondent has M.A.C.A.Nos.3991/2018, 1356 & 1598/2019 10 approached this Court challenging the liability fixed on it and the petitioners in O.P(M.V) No.575/2015, challenging the quantum of compensation stood awarded by the Tribunal in their favour.
7. The primary argument advanced by Sri.Thomas M Jacob, the learned counsel for the appellant in M.A.C.A.Nos.1356/2019 and 1598/2019 was that the time and place of occurrence pleaded by the petitioners in the Original Petitions on hand differ from the time and place of occurrence mentioned in the final report laid by the police, marked in evidence before the Tribunal as Ext.A3. According to him, in Ext.A3, after holding an elaborate investigation, the investigating officer in the crime registered with reference to the motor accident has found the rider of the motorcycle rash and negligent in riding and for the reason of his death in the motor accident, an abated chargesheet was laid before the court. According to him the driver of the container lorry was not found by the M.A.C.A.Nos.3991/2018, 1356 & 1598/2019 11 investigating officer rash and negligent and responsible for causing the motor accident. The learned counsel has invited the attention of this Court, to Exts.A2 and A3, the scene mahazar and the final report respectively to contend that the container lorry though pleaded by the petitioners as parked in a wrong place against the traffic rules, it is revealed from the description in the documents referred that the container lorry was parked on the mud portion of the road having a width of 8 meters. According to him, the accident spot was not located as 'Poojari valavu' in the final report but, in between 'Poojari valavu' and 'Thoshiba'. It is clear from Exts.A2 and A3 that the place where the container lorry was parked at the relevant time was mud portion of the road. However, the Tribunal overlooked the description of the place in Exts.A2 and A3 and observed that 'Poojari valavu' is a notorious place for drivers. Accordingly negligence was fixed on the driver of the container lorry for parking it at the curve. The Tribunal has M.A.C.A.Nos.3991/2018, 1356 & 1598/2019 12 arrived at the findings by taking judicial notice, which it ought not to have been done.
8. The learned counsel for the respondents /claimants has contended that the Tribunal was correct in finding negligence on the part of the driver of the container lorry and interference is unwarranted. According to her, from the description of the place of occurrence in Ext.A2 itself, it can be seen that curves are there 100 meters each, ahead and backwards the place of occurrence. The learned counsel tried to convince this Court that the driver of the container lorry ought not to have parked it at a curve namely 'Poojari valavu' in violation of the traffic rules and regulations and the Tribunal is justified in finding negligence on his part. Accordingly she canvassed for maintaining the finding of negligence on the part of the driver of the container lorry in both the Original Petitions and fastening of liability consequently on the insurer of the container lorry. M.A.C.A.Nos.3991/2018, 1356 & 1598/2019 13
9. It is obligatory on the part of the Tribunal to arrive at a finding of guilt of the driver of a vehicle on the basis of the evidence available for it. True that the scene mahazar as well as the final report were marked in evidence from the side of the petitioners as Exts.A2 and A3. The petitioners did not adduce any evidence before the Tribunal to establish their pleadings in the Original Petitions that the driver of the container lorry was responsible for the motor accident by his rash and negligent driving. As already stated, Exts.A2 and A3, the scene mahazar and the final report respectively were marked in evidence from the side of the petitioners and those speak against their pleadings in the Original Petitions regarding negligence of the driver of the container lorry. The Tribunal in total disregard of those documents took judicial notice in the matter and stated in the impugned award that the motor accident in question was occurred at 'Poojari valavu' which is a notorious place M.A.C.A.Nos.3991/2018, 1356 & 1598/2019 14 for drivers of vehicles passing through and the container lorry being parked at that curve, the driver of the lorry was negligent and responsible for causing the motor accident. Consequently liability was also fastened by it on the insurer of the container lorry to indemnify the insured.
10. The rider of the motorcycle was chargesheeted for rash and negligent riding but due to his death in the motor accident, an abated chargesheet was laid by the investigating officer in Crime No.3943/2015, and that is Ext.A3. Challenge having not been raised against the allegations in Ext.A3 by the petitioners before any authority immediately after it was laid before the court, negligence can only be found against the rider of the motorcycle himself, for whose death in the motor accident, O.P(M.V) No.575/2015 was filed by his legal representatives seeking compensation. The Tribunal undoubtedly went wrong in finding negligence on the part of the driver of the container lorry without any basis. The M.A.C.A.Nos.3991/2018, 1356 & 1598/2019 15 Tribunal is not supposed to take judicial notice on various extraneous aspects to arrive at a finding of negligence in a motor accident. The Tribunal ought to have appreciated the evidence adduced by the parties. In the case on hand, the Tribunal found the driver of the container lorry responsible for causing the motor accident, totally denying the documentary evidence, which speak otherwise. Therefore, the finding of negligence on the part of the driver of the container lorry and fastening of liability consequently upon the insurer of that vehicle is only to be reversed and this Court do so. For the reasons aforestated, M.A.C.A No.1598/2019 filed by the insurer of container lorry is only to be allowed.
11. O.P(M.V) No.550/2015 was filed by the legal representatives of Ms.Shreya who was traveling on the pillion seat of the motorcycle and died due to the injuries sustained in the motor accident in question. The finding arrived at as above is also applicable to the said case. If M.A.C.A.Nos.3991/2018, 1356 & 1598/2019 16 the owner and the insurer of the motorcycle were arrayed in O.P(M.V) No.550/2015 as respondents, it could have been maintained and an award could have been passed in favour of the petitioners. But petitioners failed to bring them in the array of the respondents. Not even a claim for compensation was raised against them, despite the contention taken by the insurer in the written statement filed that the Original Petitions are bad for non joinder of necessary parties. In the above circumstances, M.A.C.A.No.1356/2019 is liable to be allowed and O.P(M.V) No.550/2015 is liable to be dismissed.
12. In view of the reversal of the finding of negligence on the part of the driver of the container lorry in MACA Nos.1598/2019 and 1356/2019, M.A.C.A No.3991/2018 is also liable to be dismissed.
13. In the result, M.A.C.A Nos.1356/2019 and 1598/2019 are allowed and M.A.C.A No.3991/2018 is M.A.C.A.Nos.3991/2018, 1356 & 1598/2019 17 dismissed.
14. It is clarified that the petitioners in both the Original Petitions are entitled to get compensation under Section 140 of the Motor Vehicles Act, 1988 (for short 'the MV Act'), it being awarded on the basis of no fault liability. Therefore `50,000/- stood awarded by the Tribunal in favour of the petitioners in O.P(M.V) Nos.550/2015 and 575/2015 is maintained.
15. The Original Petitions referred to above have been filed under Section 166 MV Act. In both cases the victims died in the motor accident and legal representatives raised claims for compensation. The Original Petitions if had filed under Section 163A MV Act, compensation would have been obtained by them. For laches of the counsel representing them in the claim petitions, filed before the Tribunal, the party would not be made to suffer, since the claims being for compensation in cases where the victims died in the motor accident. The M.A.C.A.Nos.3991/2018, 1356 & 1598/2019 18 motor accident in question has been occurred in the year 2015, when limitation period for filing claim petitions was taken away from the MV Act. Therefore, this Court finds it expedient in the interest of justice to grant liberty to the parties in both the Original Petitions to prefer applications under Section 163A MV Act before the Tribunal.
16. The learned counsel for the appellants in M.A.C.A No.3991/2018 placed reliance on Hemlata and Others v. Vipin Kumar and Others [2014 KHC 5586 (Delhi High Court)] wherein it was held that conversion of claim petition filed under Section 166 MV Act to that under Section 163A MV Act is impermissible after dismissal of the claim petitions filed by the petitioners under Section 166 MV Act. But the claim petition can be permitted to be amended incorporating the relevant pleadings to maintain a claim under Section 163A MV Act. The decision is that of the High Court of Delhi but it is not applicable in the case on hand, since the factual situation M.A.C.A.Nos.3991/2018, 1356 & 1598/2019 19 is entirely different. Therefore, the decision cited is discarded from consideration.
17. It is submitted by the learned counsel for the appellants in M.A.C.A Nos.1356/2019 and 1598/2019 that the compensation stood awarded by the Tribunal under Section 140 MV Act has already been deposited and the learned counsel for the respondents/claimants in MACA Nos.1356/2019 & 1598/2019 submitted it as received.
Sd/-
MARY JOSEPH JUDGE NAB