Kerala High Court
Accident Claims Tribunal ... vs Original 2Nd on 7 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943
MACA.No.1886 OF 2011(C)
AGAINST THE AWARD IN OPMV 544/2007 DATED 11-01-2011 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL MUVATTUPUZHA
APPELLANTS/LEGAL REPRESENTATIVES OF DECEASED
ORIGINAL 2ND RESPONDENT BEFORE THE TRIBUNAL:
1 SHEENA P.S.
W/.O LATE NASSER O.M., AGED 38 YEARS,
OTTATHAIKKAL HOUSE, MADATHIMOOLA, KAPRASSERY,
NEDUMBASSERY 683 585
2 ALTHAF ABDULLAH, MINOR AGED 14 YEARS, S/O LATE
NASSER O.M., REPRESENTED BY HIS NEXT FRIEND AND
GUARDIAN SHEENA P.S., OTTATHAIKKAL HOUSE,
MADATHIMOOLA, KAPRASSERY, NEDUMBASSERY 683 585
3 ANSAF ABDUALLAH, MINOR AGED 13 YEARS, S/O LATE
NASSAR O.M, REPRESENTED BY HIS NEXT FRIEND AND
GUARDIAN SHEENA P.S., OTTATHAIKKAL HOUSE
MADATHIMOOLA, KAPRASSERY, NEDUMBASSERY 683 585
4 NAUF BINT NASSAR, MINOR AGED 8 YEARS, D/O LATE
NASSER O.M, REPRESENTED BY HER NEXT FRIEND AND
GUARDIAN SHEENA P.S., OTTATHAIKKAL HOUSE,
MADATHIMOOLA, KAPRASSERY, NEDUMBASSERY 683 585
BY ADV. SRI.M.M.SAIDU MUHAMMED
RESPONDENT/S:
1 ANNAKUTTY JOSEPH
W/O JOSEPH, AGED 64 YEARS
KIZHAKKEDATHU HOUSE, PINDIMANA P.O.,
KOTHAMANGALAM 686 692
MACA.No.1886 OF 2011(C) 2
2 JOLLY S/O GEORGE, MULEKKUDY HOUSE,
PUNNEKKADU KOTHAMANGALAM KEERAMPARA P.O.,
689 691
3 THE NEW INDIA ASSURANCE CO.LT.
ST.JOSEPH'S BUILDING, PERUMBAVOOR 683 542
ADDL.4 *SRI ABDUL RAHEEM, S/O KHADAR PISHARATH HOUSE,
KAYANTIKKARA, KADUNGALLUR VILLAGE, PARAVOOR TALUK
PIN - 683 110
ADDL.5 *SRI.BRUCE, S/O DEVASSIA, POTHANIKKAD HOUSE,
KEERAMPARA VILLAGE, KOTHAMANGALAM TALUK,
PIN 689 691
* ARE IMPLEADED AS ADDITIONAL RESPONDENTS 4 AND 5
IN THE APPEAL VIDE ORDER DATED 14.3.2012 IN IA NO.
3014/11 IN MACA 1886/11.
R1 BY ADV. SMT.RAJI T.BHASKAR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 07.04.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA.No.1886 OF 2011(C) 3
P.V.KUNHIKRISHNAN, J
-----------------------------------------------
M.A.C.A. No.1886 of 2011
--------------------------------------
Dated this the 7th day of April, 2021
JUDGMENT
The legal heirs of the deceased 2 nd respondent in O.P.(M.V.)
No. 544/2007 on the file of the Motor Accidents Claims Tribunal,
Muvattupuzha are the appellants in this appeal. It was a claim
petition filed by the 1st respondent herein under Sec.166 of the
Motor Vehicles Act. (Hereinafter the parties are mentioned in
accordance to their rank before the Tribunal).
2. The short facts are like this :
On 18.12.2006 at about 6.30 pm, while the petitioner was
walking through Kothamangalam-Bhoothathankettu public road,
the motor cycle bearing registration No.KL-7G-8412 ridden by
the 1st respondent from south to north in a rash and negligent
manner and excessive speed hit down her on the eastern side of
the said road. As a result of which, she sustained serious
injuries. The accident occurred solely due to the rash and
negligent driving of the motor cycle by the 1 st respondent,
contended by the petitioner. The 2nd respondent is the registered
owner cum insured of the offending vehicle and the 3 rd
respondent is the insurer. The respondent Nos. 1 to 3, who are
the rider, owner and insurer of the offending vehicle are liable to
pay the compensation, contended by the petitioner.
3. Before the Tribunal, the 1st respondent was ex-parte.
The 2nd respondent filed a written statement before the Tribunal
and contents of the same as narrated in the impugned award is
extracted hereunder :
"The petition is not maintainable either in law or on facts
against the second respondent. The allegation in the petition that
the respondent (R2) is the owner of the offending motor cycle
bearing Reg.No.KL-7G-8412 at the time of accident is absolutely
false and hence, denied. The respondent (R2) had transferred the
offending motor cycle to one Abdul Raheem s/o Khadar Pisharath
house, Kayatikkara, Kadungallur village, Paravoor Taluk on 4.9.96
and the same day itself he had parted with the possession of the
said vehicle along with all documents relating to it on execution of
a written agreement. As per the terms and conditions of the said
agreement, the purchaser of the said motor cycle is the true owner
of it and he alone is liable for all liabilities including police cases,
accident etc. arising out of the use of the said vehicle from the date
of transfer of the offending motor cycle. So from the date of
transfer of the offending motor cycle, the second respondent had
no ownership, possession and control over of the said vehicle. The
respondent (R2) had never authorised the first respondent to
drive the said vehicle at the time of accident and therefore, the
respondent (R2) is not liable to pay the compensation due to any
accident involving the said motor cycle. The respondent (R2)
had neither submitted any proposal form duly filled and signed
for obtaining any insurance policy nor made any request or
application with the 3rd respondent for the issuance of policy for
the said motor cycle after 4.9.96. The policy said to have issued
by the 3rd respondent with respect to the offending motor cycle
for the period from 6.4.06 to 5.4.07 is without the knowledge
and consent of the respondent (R2) as the second respondent
had no possession, ownership, control and insurable interest
over the said motor cycle on the date of accident and therefore,
there is absolutely no liability for the respondent (R2) to pay any
compensation to the petitioner. The age, occupation and
monthly income of the petitioner shown in the petition are false
and incorrect and hence denied. The compensation claimed by
the petitioner under various heads are highly excessive and out
of all proportions and therefore, not allowable. If at all the
petitioner is entitled to get any compensation, the purchaser
(owner) of the offending motor cycle, Abdul Raheem S/o Kader
and the other respondents alone are liable to pay the same to
the petitioner. Hence, the respondent prayed the dismissal of
the petition with his cost."
4. To substantiate the case, Exts. A1 to A8 were marked
on the side of the petitioners. Ext.B1 is the policy produced by
the respondents. After going through the evidence and the
documents, the Tribunal allowed the petition in part and passed
an award of Rs.77,000/- with 8% interest per annum from the
date of petition till realization. The 3rd respondent was directed
to deposit the award amount. The 3 rd respondent was also given
right to recover the amount from respondents 1 and 2. The 1 st
respondent was not having any valid license to ride the offending
vehicle at the time of the accident, which is a violation of the
policy conditions. Aggrieved by the order of recovery, the legal
heirs of the 2nd respondent filed this appeal.
5. Heard counsel for the appellant and counsel for the 3rd
respondent.
6. The main contention raised by the appellants before
this Court is that the Tribunal has not considered their plea
regarding the transfer of the vehicle as on the date of the
accident. In the appeal, the appellants filed IA No.3015/2011 in
which Annexure-1 and Annexure-2 are produced. Annexure-1 is
the true photostat copy of the document relating to transfer of
vehicle bearing registration No.KL-7G 8412. Annexure-2 is the
photostat copy of the details of the owner of the vehicle at the
time of the accident obtained from the Kothamangalam Police
Station under the Right to Information Act. The counsel for the
appellant submitted that, they were not able to adduce evidence
based on these documents and they were not able to produce the
documents before the Tribunal. The counsel submitted that an
opportunity may be given to the appellants to substantiate their
case. The appellants impleaded the alleged subsequent owners
of the vehicle as additional respondents 4 and 5. Even though
notice was issued to them, there is no appearance for them
before this Court.
7. In the light of the fact that a specific contention is
raised by the 2nd respondent before the Tribunal that the vehicle
is already transferred as on the date of the accident and in the
light of the documents produced before this Court to
substantiate the same, I think an opportunity can be given to the
appellants to substantiate their case based on Annexure-1 and
Annexure-2. I make it clear that the compensation awarded by
the Tribunal is final and no interference is necessary on that
aspect. Regarding the liability of the 2nd respondent in the
original application, the Tribunal will allow the parties to adduce
further evidence and thereafter, will decide the matter afresh in
accordance to the law.
Therefore, this appeal is allowed in part.
1) The Motor Accidents Claims Tribunal, Muvattupuzha is directed
to restore O.P.(M.V.) No. 544/2007 and allow the appellants to
adduce further oral and documentary evidence.
2) The respondents also will be allowed to adduce evidence, if any.
Thereafter, the Tribunal will decide the question of liability to
pay the compensation amount afresh in accordance to the law.
The Registry will forward Annexure-1 and Annexure-2 to the
Tribunal.
3) The Tribunal will dispose the matter as expeditiously as
possible, at any rate, within 4 months from the date of receipt
of a copy of this judgment.
4) The parties will appear before the Tribunal on 17.5.2021.
SD/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
