Kerala High Court
Muhammad Kunhi vs The Director General Of Police on 14 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
MACA NO. 3325 OF 2018
AGAINST THE AWARD DATED 21.07.2014 IN OP(MV) No.687/2008 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, THALASSERY, KANNUR
APPELLANTS/RESPONDENTS 4&5 IN O.P.(MV):
1 DIRECTOR GENERAL OF POLICE,
POLICE HEADQUARTERS,
THIRUVANANTHAPURAM.
2 STATE,
REPRESENTED BY DISTRICT COLLECTOR,
KANNUR.
BY ADV GOVERNMENT PLEADER
RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 3 & SUPPLEMENT
RESPONDENTS 6 TO 8 IN O.P(MV):
1 MUHAMMAD KUNHI,
S/O.V.P HARIS, V.P HOUSE,
MATTANNUR P.O.,
MATTANNUR. 670 702.
2 KOTTARATHIL FOUSUA,
W/O.MUHAMMAD KUNHI, V.P.HOUSE,
MATTANNUR.P.O., MATTANNUR. 670 702
3 KOTTARATHIL JASIM,
S/O.MUHAMMAD KUNHI, V.P.HOUSE,
MATTANNUR.P.O., MATTANNUR. 670 702
4 KOTTARATHIL JUMANA,
MINOR, D/O.MUHAMMAD KUNHI, V.P.HOUSE,
MATTANNUR.P.O., MATTANNUR. 670 702
(REPRESENTED BY 2ND RESPONDENT)
5 K AJITHKUMAR,
S/O.KRISHNAN NAMBIAR,
DRIVER PC 5417, AR ACAMP,KANNUR. 670001
MACA NO. 3325 OF 2018 & CO NO. 215 OF 2019
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6 HARIDASAN,
S/O.GOVINDAN KUTTY NAIR,
RTD. SI OF POLICE, NITHYALAYAM.P.O.,
MURINGERI, MELE MURINGERI, PERAVOOR. 670 673
7 SATHEESAN,
S/O.NARAYANAN, PC 3801,
KARUVA NIVAS, EDAKUNNAM.P.O.,
KIZHUR.(ARALAM POLICE STATION)- 673 522
8 M.RAMESHAN,
S/O.ACHUTHAN, P.O.MATTANNUR - 670 702
9 C.M JEEJA,
W/O.RAMACHANDRAN,
P.O.MATTANNUR. 670 702
10 NEW INDIA ASSURANCE CO.LTD.,
KANNUR. 670001
ADDL.11 KERALA STATE INSURANCE DEPARTMENT
REP BY DISTRICT INSURANCE OFFICE RUBCO HOUSE,
3RD FLOOR SOUTH BAZAR, KANNUR 670002
ADDITIONAL RESPONDENT 11 IS IMPLEADED VIDE ORDER
DATED 29.08.2019 IN IA 2/19 IN MACA 3325/2018
BY ADVS.
SRI.CIBI THOMAS
SMT.JAYASREE K.P.
SRI.T.RAMESH BABU
SRI.VPK.PANICKER
GOVERNMENT PLEADER
SRI.C.K.SREEJITH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 14.07.2021 ALONG WITH CO NO.215 OF 2019, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 3325 OF 2018 & CO NO. 215 OF 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
CO NO. 215 OF 2019
IN MACA 3325/2018 OF HIGH COURT OF KERALA
(AGAINST THE AWARD DATED 21.07.2014 IN OP(MV) No.687/2008
OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY, KANNUR)
CROSS OBJECTIONERS/RESPONDENTS 1 TO 4/PETITIONERS:
1 MUHAMMAD KUNHI
AGED 64 YEARS
S/O.V.P. HARIS, V.P. HOUSE,
MATTANNUR P.O., KANNUR DISTRICT-670 702.
2 KOTTARATHIL FOUSUA
AGED 48 YEARS
W/O. MUHAMMAD KUNHI, V.P. HOUSE,
MATTANNUR P.O., KANNUR DISTRICT-670702.
3 KOTTARATHIL JASIM
AGED 27 YEARS
D/O. MUHAMMAD KUNHI, V.P. HOUSE,
MATTANNUR P.O., KANNUR DISTRICT-670 702.
4 KOTTARATHIL JUMANA
AGED 18 YEARS
D/O. MUHAMMAD KUNHI, V.P. HOUSE,
MATTANNUR P.O., KANNUR DISTRICT-670 702.
BY ADV. CIBI THOMAS
RESPONDENTS/APPELLANTS/RESPONDENTS:
1 THE DIRECTOR GENERAL OF POLICE,
POLICE HEADQUARTERS,
THIRUVANANTHAPURAM-695010.
MACA NO. 3325 OF 2018 & CO NO. 215 OF 2019
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2 STATE,
REPRESENTED BY DISTRICT COLLECTOR,
KANNUR-670 002.
3 K. AJITH KUMAR,
S/O. KRISHNAN NAMBIAR, DIRVER PC 5417,
AR CAMP,. KANNUR-670 002.
4 HARIDASAN,
S/O. GOVINDANKUTTY NAIR, RTD. SUB INSPECTOR OF
POLICE, NITHYALAYAM, MURINGERI P.O.,
MELE MURINGERI, PERAVOOR-670 673.
5 SATHEESAN,
S/O. NARAYANAN, PC 3801, KARUVA NIVAS,
EDAKUNNAM P.O., KIZHUR (ARALAM POLICE STATION),
PIN-670674.
6 M. RAMESHAN,
S/O. ACHUTHAN, MATTANNUR P.O.,
KANNUR DISTRICT 670 702
7 C.M. JEEJA,
W/O. RAMACHANDRAN, MATTANNUR P.O.,
KANNUR-670 702.
8 THE NEW INDIA ASSURANCE COMPANY LIMITED,
KANNUR-670 002.
9 KERALA STATE INSURANCE DEPARTMENT,
DISTRICT INSURANCE OFFICE, RUBCO HOUSE,
3RD FLOOR, SOUTH BAZAR, KANNUR-670 002.
BY ADV SRI.PMM.NAJEEB KHAN
THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR
ADMISSION ON 14.07.2021 ALONG WITH MACA NO.3325 OF 2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 3325 OF 2018 & CO NO. 215 OF 2019
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A.BADHARUDEEN, J.
===========================
M.A.C.A.No.3325 of 2018
&
Cross Objection No.215 of 2019
===========================
Dated this the 14th day of July, 2021
JUDGMENT
Award dated 21.07.2014 in OP(MV) No.687 of 2008 on the
file of the MACT, Thalassery is under challenge in this appeal at
the instance of respondents 4 and 5 before the Tribunal.
Thereafter, Cross Objection No.215 of 2019 also was filed by
the original petitioners seeking enhancement of compensation.
2. Heard the learned counsel for the
appellants/respondents 4 and 5 as well as the learned counsel
for the original petitioners and additional R11 impleaded in this
appeal, being the insurer of the alleged offending vehicle viz.
police jeep bearing registration No.KL-01-AD/5071. Before the
Tribunal additional R6 to R8 were impleaded being the owner,
driver and insurer of another vehicle alleged to be involved in
the accident viz. mini lorry bearing registration Reg.KL-
MACA NO. 3325 OF 2018 & CO NO. 215 OF 2019
13M/7294, in view of the contention raised by the original 4 th
respondent in the written statement based on police charge.
3. The brief facts of the case:
The original petitioners' case is that on 12.04.2006 the
deceased by name Ijas went to his house for taking lunch on his
motor cycle bearing registration No.KL-13E/1696. After taking
lunch, while he was returning back to his shop where he was
working, a police jeep bearing registration No.KL-01-AD/5071
driven by the original 1st respondent in a rash and negligent
manner hit on the motor cycle. As a result of which Ijas
sustained fatal injuries. Consequently he died. The original
petitioners, being legal representatives, claimed an amount of
Rs.15,00,000/- as compensation.
4. The original respondents 1 to 3 were set exparte
before the Tribunal.
5. Original respondents 4 and 5 filed joint written
statement contending as follows:- The accident did not
happen in the manner stated in the petition. The deceased died
due to the accident on 12.04.06 by which the motor cycle
MACA NO. 3325 OF 2018 & CO NO. 215 OF 2019
collided with a mini lorry bearing registration No.KL-13M/7294.
Mattannur police registered crime No.107/06 against the mini
lorry driver. Charge was also laid. The charge was lied against
the deceased and since he was dead, charge against him was
abated as per the order of the Judicial First Class Magistrate
Mattannur dated 14.02.07. The involvement of the Police jeep
in the accident was emphatically denied. The further contention
raised before the Tribunal was that the driver of the Mini lorry
contributed the accident. Therefore, its owner C.M.Jeeja and
the driver Remeshan M. were the tort feasures. The said
vehicle was insured with New India Assurance company.
6. In the light of the contentions raised by original
respondents 4 and 5, supplemental respondents 6 to 8 were
impleaded in the original petition.
7. The original 7th respondent was set exparte.
8. Original respondents 6 and 8 filed written statement
contending that Mini lorry bearing No.KL-13M/7294 was not
insured with R8 at the time of accident and the policy number is
incorrect. Thus liability was disputed.
MACA NO. 3325 OF 2018 & CO NO. 215 OF 2019
9. The Tribunal by the impugned award directed the
original respondents 1 to 5 to pay jointly and severally a
compensation of Rs.8,45,000/- (Rupees eight lakh and forty five
thousand only) to the original petitioners with 8% interest per
annum (less the amount awarded if any under Section 140 of
the MV Act) from the date of petition till realisation with
proportionate costs.
10. Coming to the facts of the case, three vehicles were
alleged to be involved and the learned counsel for the original
petitioners submitted that in fact, the original first respondent,
the driver of the police jeep, contributed the accident and the
Police manipulated the case and mini lorry bearing Reg.KL-
13M/7294 brought into this accident with ulterior motives. It is
submitted further that though charge was initially filed against
the deceased and the said charge stood abated, the original
petitioners filed a private complaint before the Magistrate Court
concerned and the learned Magistrate conducted enquiry under
Section 202 of Cr.P.C and took cognizance in the matter for the
offences under Section 279, 304 read with 34 of IPC and as
MACA NO. 3325 OF 2018 & CO NO. 215 OF 2019
against the original first respondent, the driver of the Police
jeep.
11. On anxious consideration of this matter, the learned
Tribunal granted Rs.8,45,000/- as compensation as against the
claim of Rs.15 lakh and original 5 th respondent, State
represented by the District Collector, Kannur was directed to
deposit the amount on the premise that there was no policy to
the alleged offending police jeep.
12. During the pendency of this appeal, it was brought to
the notice of this Court that the police jeep found to have
contributed the accident by the Tribunal was insured with Kerala
State Insurance Department and accordingly, Kerala State
Insurance Department got impleaded as additional respondent
No.11.
13. The learned counsel appearing for additional 11 th
respondent submitted that additional 11 th respondent not
obtained opportunity to file written statement and adduce
evidence. According to him, though the policy in relation to
police vehicle is admitted by R11, the right of R11 to challenge
MACA NO. 3325 OF 2018 & CO NO. 215 OF 2019
the accident by alleging contributive negligence or absolute
negligence on the part of the drivers of the other vehicles to be
protected.
14. Though the learned counsel for the original
petitioners opposed remand on the submission that the accident
was in the year 2006 and the O.P is of the year 2008, the said
objection cannot be found favour simply for the reason that
once a party got impleaded at the appellate stage when
disputes the accident, an opportunity must be given to file
written statement and to adduce evidence as law mandates
such a course of action.
15. Going by the facts of this case, 3 vehicles alleged to
be involved in this accident. However, the Tribunal on evidence
found negligence against the driver of the Police jeep. But the
insurer of the Police jeep, R11, was not impleaded before the
Tribunal. Thus the opportunity of R11 to challenge the accident
as well as negligence as provided under Section 170 (b) of the
Motor Vehicles Act cannot be denied. In view of the matter, an
opportunity must be given to additional R11 to file written
MACA NO. 3325 OF 2018 & CO NO. 215 OF 2019
statement and adduce evidence. If so a remand of this matter
is necessary with direction to the Tribunal to expedite the trial
within a time limit.
16. Therefore, a remand of this matter is necessary to
fiinalise the dispute in between the parties. In fact, this is an
accident occurred in the year 2006 and the matter has been
pending before this Court since 2018. On perusal of the
records it could be noticed that the petitioners herein are the
legal heirs of the deceased and are canvasing compensation.
But did not obtain any relief so far. The situation is very
pathetic. However, this Court has no other option other than to
remand the matter for fresh disposal after providing opportunity
to the Kerala State Insurance Department (subsequently
impleaded as R11 in this appeal), as already observed.
17. Since the matter is of 2008, I am inclined to direct the
learned Tribunal to expedite the trial after permitting R11 to file
written statement and adduce evidence in support of its
contentions.
18. In the result, the award under challenge is set aside
MACA NO. 3325 OF 2018 & CO NO. 215 OF 2019
for the purpose of remand.
19. It is specifically ordered that additional R11 must file
written statement before the Tribunal within 30 days from the
date of appearance ordered by this Court and the learned
Tribunal shall expedite the trial as early as possible and at any
rate, the entire matter shall be disposed of within 45 days from
the date of filing written statement. The Tribunal is at liberty to
proceed with the matter in case R11 fails to file written
statement as directed by this Court within the stipulated time.
Since all parties appeared before this Court, parties are directed
to appear before the Tribunal on 13.08.2021 at 11 a.m.
20. On perusal of the proceedings of this case it is seen
that the petitioners not obtained even interim award in this case
where the accident was in the year 2006. It is submitted by the
learned counsel appearing for the original 4 th respondent D.G.P.
that 50% of the award amount was deposited before the
Tribunal during pendency of this appeal. The learned counsel
for the petitioners submitted that a portion of the amount if
directed to be released to the petitioners with liberty to
MACA NO. 3325 OF 2018 & CO NO. 215 OF 2019
reimburse the same from the indemnifier or from the tort
feasures, the petitioners would get a sigh of relief. The
submission was not seriously opposed by the learned counsel
for the 4th respondent.
21. Having considered the factual aspects as narrated, I
am inclined to direct the Tribunal to release Rs.2 lakh from the
amount deposited by the 4 th respondent before the Tribunal to
the petitioners in equal proportion forthwith. It is ordered
further that the Tribunal shall grant reimbursement of the
amount to the 4th respondent on fixing liability after deciding the
matter afresh.
22. It is specifically ordered that parties are at liberty to
confine their evidence already adduced if opportunity will be
provided to R11 to cross examine the witnesses already
examined. Otherwise parties can adduce fresh evidence.
23. R11 shall file written statement on or before
12.09.2021 and the Tribunal shall dispose of the matter afresh
as already ordered. R11 is given liberty to adduce fresh
evidence in support its contention as per law.
MACA NO. 3325 OF 2018 & CO NO. 215 OF 2019
24. Parties are directed to appear before the Tribunal on
13.08.2021 at 11 a.m. Office is directed to forward a copy of
this judgment to the Tribunal directly within 3 days so as to
effectuate compliance of the judgment.
Since the award under challenge is set aside in the
Appeal, the Cross Objection is only to be dismissed. Hence the
Cross Objection is dismissed.
Sd/-
A. BADHARUDEEN
JUDGE
scs
