The New India Assurance Company ... vs The New India Assurance Company ...
2021 Latest Caselaw 10263 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

                 THE HONOURABLE MR.JUSTICE C.S.DIAS

     FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943

                        MACA.No.196 OF 2013

 AGAINST THE AWARD IN OP(MV) 1163/2007 DATED 15-05-2012 OF MOTOR
               ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA


APPELLANT/3RD RESPONDENT:

              THE NEW INDIA ASSURANCE COMPANY LIMITED
              ETTUMANOOR NOW REPRESENTED BY ITS MANAGER, REGIONAL
              OFFICE, M.G.ROAD, KOCHI-11.

              BY ADVS.
              SRI.MATHEWS JACOB (SR.)
              SRI.P.JACOB MATHEW

RESPONDENTS/PETITIONER AND RESPONDENTS 1 AND 2:

      1       THANKAMMA
              W/O.VASUDEVAN, PUTHUVAL NIKARTHIL, THANNEERMUKKOM
              P.O., VIA.CHERTHALA, PIN-688320.
      2       ROBY KURUVILLA
              S/O.KURUVILLA, THEKKETHIL VEETTIL, KAVIKKADU KARAYIL,
              MUTTUCHIRA P.O., VAIKOM-686318.
      3       BIJU PAUL
              THEKKEVEETTIL, KALLARA P.O., VAIKOM-686315.
      Addl.   VASUDEVAN, AGED 63, PUTHUVAL NIKARTHIL,
      4.      THANNEERMUKKOM P.O, VIA CHERTHALA.
      5.      SABITHA, AGED 31, PUTHVAL NIKARTHIL,
              THANNEERMUKKOMP.O, VIA CHERTHALA.
      6.
              SOUMYA, AGED 25, PUTHUVAL NIKARTHIL,
              THANNEERMUKKOM P.O,
              VIA CHERTHALA.
              ADDL.5 TO 6 ARE IMPLEADED AS PER ORDER DATEED
              1.9.2016 IN I.A NO.2898/2016
              R1 BY ADV. SRI.J.OM PRAKASH
              R1-2 BY ADV. SRI.RENNY AUGUSTINE
              R4-R6 BY ADV. SRI.J.OM PRAKASH

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
25-03-2021, THE COURT ON 26-03-2021 DELIVERED THE FOLLOWING:
 MACA.No.196 OF 2013

                              2

                         JUDGMENT

Dated this the 26th day of March 2021

The appellant was the 3rd respondent in O.P.

(MV) No.1163/2007 on the file of the Motor Accidents

Claims Tribunal, Alappuzha. The 1 st respondent was

the petitioner and the respondents 2 and 3 were the

respondents 1 and 2 in the claim petition. The parties

are, for the sake of convenience, and wherever the

context so requires, referred to as per their status in

the claim petition.

2. The petitioner had filed the claim petition

under Section 166 of the Motor Vehicles Act, 1988 (in

short 'the Act'), claiming compensation on account of

the accident that occurred on 13.12.2006. It was

her case that while she was walking on the Vaikom

Boat Jetty road, a private bus bearing Reg. No.KL-

5/L8184(offending vehicle) driven by the 1 st

respondent in a rash and negligent manner hit the

petitioner. She sustained serious injuries. The MACA.No.196 OF 2013

offending vehicle was owned by the 2nd respondent

and insured with the 3rd respondent. Hence, the

petitioner claimed a compensation of Rs.5,21,000/-

from the respondents.

3. During the pendency of the proceedings, as

the 1st respondent could not be served with notice, the

petitioner relinquished her claim as against the 1 st

respondent. The 2nd respondent did not contest the

proceedings and was set ex parte.

4. The 3rd respondent filed a written statement

admitting that the offending vehicle had a valid

insurance policy issued by it. However, the 3 rd

respondent denied any negligence on the part of the

1st respondent in causing the accident. Similarly, the

3rd respondent denied the validity of the driving

licence and badge of the 1st respondent and the

fitness certificate of the offending vehicle. It was

specifically contended that there was a violation of

the policy conditions, and therefore, the 3 rd MACA.No.196 OF 2013

respondent was not liable to indemnify the 2nd

respondent. The 3rd respondent prayed that it may

be exonerated from its liability.

5. A Member of the Medical Board Dr.Sajith

Hussain was examined as PW1 and Ext.C1 disability

certificate was marked through him. The petitioner

also marked Exts.A1 to A6 in evidence. The

respondents did not let in any evidence.

6. The Tribunal, after analysing the pleadings

and materials on record, by the impugned award

allowed the claim petition by permitting the petitioner

to realise an amount of Rs.,5,87,511/- with interest at

the rate of 7.5% per annum from the date of petition

till the date of realisation and costs of Rs.5,875/-. The

3rd respondent was directed to pay the compensation.

7. Aggrieved by the impugned award, the 3 rd

respondent/Insurance Company is in appeal.

8. During the pendency of the appeal, the

petitioner passed away. Her legal representatives MACA.No.196 OF 2013

have been impleaded as respondents 4 to 6 in the

appeal.

9. Heard Sri.Mathews Jacob, the learned

Senior Counsel appearing for the appellant/3rd

respondent, Sri.J.Om Prakash, the learned counsel

appearing for the respondents 4 to 6 and Sri.Renny

Augustine, the learned counsel appearing for

respondents 2 and 3.

10. The learned Senior Counsel appearing for

the appellant/3rd respondent challenged the

impugned award on the following three grounds,

namely:

(i) As the petitioner had relinquished her claim

as against the 1st respondent- driver, the claim

petition itself is not maintainable.

(ii) Even though as per Ext.C1 disability

certificate, the petitioner had sustained only 40%

permanent disability, the Tribunal has assessed the

functional disability at 100%.

MACA.No.196 OF 2013

(iii) Although the appellant had specifically

contended in the written statement that the offending

vehicle had no fitness certificate, the Tribunal did not

grant the appellant the right to pay and recover the

compensation as laid down by the larger Bench

decision of this Court in Pareed Pillai v. Oriental

Insurance Co.Ltd [2018 (4) KLT 792] read with

Section 149 of the Act. He therefore, prayed that the

appeal be allowed and the claim petition be

dismissed.

11. Per contra, Sri.J.Om Prakash, the learned

counsel appearing for the respondents 4 to 6

contended that the petitioner did not relinquish her

claim as against the 1st respondent. As the

whereabouts of the 1st respondent was not known and

the notice in the claim petition was not getting served

against the 1st respondent, the petitioner was

constrained to delete the 1st respondent from the

party array, taking note of the fact that the vehicle MACA.No.196 OF 2013

was owned by the 2nd respondent, which was covered

by a valid insurance policy issued by the 3 rd

respondent. Therefore, at any rate only the 3rd

respondent will be held liable to pay the

compensation as the 2nd respondent is vicariously

liable for the negligence of the 1st respondent.

Similarly, he contended that the Tribunal fixed the

functional disability of the petitioner based on

Ext.A15 disability certificate issued by a competent

Medical Board of the same hospital, which has

certified that the petitioner to be unfit to continue her

profession as a coir worker. Therefore, he contended

that there is no scope for any interference with the

impugned award passed in favour of the petitioner

and the appeal be dismissed.

12. Sri.Renny Augustine, the learned counsel

appearing for respondents 2 and 3 contended that

the respondents 2 and 3 may be given one more

opportunity to prove that the offending vehicle had a MACA.No.196 OF 2013

valid fitness certificate and that the 1 st respondent

had the valid driving licence and badge. There is no

violation of policy conditions as contended by the

learned Senior Counsel. Hence, the impugned award

passed by the Tribunal is correct and justifiable.

     13. The           questions        that      emanate          for

consideration in the appeal are:

         (i)      Whether the relinquishment of claim by the

petitioner would exonerate the appellant/3rd respondent from paying compensation to the petitioner?

(ii) Whether the functional disability assessed by the Medical Board would establish that the petitioner was no longer capable of doing her work?

(iii) Whether the appellant is entitled for an order of pay and recovery as contemplated under Section 149 of the Act?

14. Ext.A2 charge-sheet filed by the Police after

investigation substantiates that the accident occurred

on account of the negligence on the part of the 1 st

respondent who drove the vehicle in a rash and

negligent manner. Exts.A3 and A4 wound certificates MACA.No.196 OF 2013

prove that the petitioner had sustained serious

injuries, as a result of the accident. It is an

undisputed fact that the offending vehicle driven by

the 1st respondent was owned by the 2nd respondent

and insured with the 3rd respondent. Therefore, the

respondents 2 and 3 are vicariously liable to

compensate the petitioner for the negligent act of the

1st respondent.

15. The specific case of the petitioner was that

as the whereabouts of the 1st respondent was

unknown and summons could not be served on him,

the petitioner deleted the 1st respondent from the

party array, in order to proceed with the claim

petition. The deletion of the 1st respondent,

especially in light of Ext.A2 charge-sheet that the 1 st

respondent was negligent in causing the accident and

that the 3rd respondent had issued a valid insurance

policy cannot tantamount to relinquishment of the

claim.

MACA.No.196 OF 2013

16. The said legal position is no longer res-

integra in view of the law declared by Division

Benches of this Court in Oriental Insurance Co. Ltd.

v. Shobana Omanakuttan and others [2015 KHC

406] and Anuradha Varma v. State of Kerala

[1993 (2) KLT 777] .

17. Hence, I hold that the deletion of the 1 st

respondent is not fatal to the petitioner and does not

dis-entitle her from claiming compensation as against

the respondents 2 and 3. Accordingly, question No.1

is answered in favour of the petitioner.

18. Coming to the next question with regard to

the functional disability of the petitioner.

19. It is seen that the petitioner was first

examined by a competent Medical Board of three

Doctors of the General Hospital, Alappuzha. The

Medical Board by certificate dated 10.2.2011, which

was marked as Ext.A15 found that the petitioner was

unfit to continue her work as a coir worker due to MACA.No.196 OF 2013

the fact that she is suffering from post-osteolylitis

residual damage of the knee, tibia and ankle.

Accordingly, it was held that the petitioner was 100%

functionally disabled from carrying on her avocation.

20. Subsequent to the assessment in Ext.A15,

the petitioner was again subjected to an examination

by another Medical Board of the Government

T.D.Medical College, Hospital on 17.12.2011. The

said Board also found that the petitioner had a

permanent disability of 40% as she was suffering

from the same ailment as certified in Ext.A15

certificate.

21. Thus, in my considered opinion, Ext.A11

and Ext.C1 will have to be read together, to assess

the functional disability and permanent disability of

the petitioner. In was in such circumstances that the

Tribunal came to the conclusion that the petitioner

was unable to carry on with her avocation, even

though she had only 40% permanent disability. The MACA.No.196 OF 2013

finding of 100% functional disability cannot be found

fault with. Thus, I answer question No. (ii) also in

favour of the petitioner.

22. Coming to the last question, whether the

appellant is entitled for an order of pay and recovery

as against the 2nd respondent for violation of the

policy conditions.

23. It was the specific case of the appellant in

the written statement that the offending vehicle did

not have a valid fitness certificate. It was also

contended that the 1st respondent did not possess a

valid driving licence or badge to drive the vehicle.

24. A larger Bench of this Court in Pareed

Pillai (supra), has held that if the offending vehicle

does not have a valid fitness certificate, it is a major

infraction of Section 149 of the Motor Vehicles Act,

1988, giving liberty to the Insurance Company to pay

the compensation amount and recover the same from

the owner of the offending vehicle.

MACA.No.196 OF 2013

25. Undisputedly, even though the appellant had

filed an application for production of the said

documents, the 2nd respondent did not care to contest

the proceedings or produce the relevant documents to

disprove the assertion of the appellant. Therefore,

the said question is only to be answered in favour of

the appellant.

26. The learned counsel appearing for the

respondents 2 and 3 made a fervent plea before this

Court that the respondents 2 and 3 may be given a

further opportunity to produce the relevant

documents to disprove the assertion of the appellant.

The said submission cannot be accepted because the

claim petition was filed in the year 2007 and the

appeal has been pending before this Court from the

year 2013 onwards. At this distance of time, I do not

find any ground to give any further opportunity to

the respondents 2 and 3 to produce the above

documents. Hence, I am of the considered opinion MACA.No.196 OF 2013

that the appellant is entitled for an order for paying

the compensation to the respondents 4 to 6/legal

representatives of the petitioner and recovering the

compensation amount from the 2nd respondent.

In light of the aforesaid findings, the appeal is

disposed of confirming the impugned award passed by

the Tribunal, but giving liberty to the appellant to pay

the compensation a to the respondents 4 to 6 and

recover the same from the 2nd respondent, in

accordance with law.

Ma/26.6.2021                               Sd/-C.S.DIAS,   JUDGE
                            /True copy/