Rahim Kutty vs Rahim Kutty
2021 Latest Caselaw 7891 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

             THE HONOURABLE MRS. JUSTICE MARY JOSEPH

     MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942

                     MACA.No.1616 OF 2010(C)

  AGAINST THE AWARD IN O.P(M.V) No.851/2004 DATED 13-03-2008 OF
            MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM.


APPELLANT/1ST RESPONDENT:

             RAHIM KUTTY,
             KEELEMPATHUVILA(KADUMBATTUVILA VEEDU),
             MUTTACKAVU, NEDUMPANA, KOLLAM.

             BY ADV. SRI.PRATHEESH.P

RESPONDENTS/RESPONDENT NO.2/PETITIONER:

      1      THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO.LTD,
             KOLLAM. 691001

      2      RAMACHANDRAN PILLAI,
             AGED 52 YEARS
             S/O.PARAMESWARAN PILLAI, SHINI HOUSE, MUTTACKAVU,
             NEDUMPANA 691580.

      *3     ADDL. R3. THE MANAGER,
             M/S.NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE,
             PARAMESWARAN PILLAI BHAVAN, KOLLAM - 691 001.

             *(ADDITIONAL R3 IMPLEADED VIDE ORDER DATED 01.02.2019
             IN I.A 1 OF 2018 IN MACA 1616/2010)

             R1 BY ADVS. SRI.M.JACOB MURICKAN
                         SRI. K.SIJU
             R3 BY ADV. N.S.NAJEEB

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
08.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 MACA.No.1616/2010(C)                    2




                               JUDGMENT

Dated this the 08th day of March, 2021

This appeal is directed against an award passed by

Motor Accidents Claims Tribunal, Kollam on 13.03.2008 in

O.P(M.V) No.851/2004.

2. For the sake of clarity, the parties to this appeal will

hereinafter be referred to as the petitioner and respondents 1 and 2

in accordance with their status in the Original Petition.

3. In the award under challenge, the Tribunal has awarded

a compensation of Rs.1,28,300/-(Rupees one lakh twenty Eight

Thousand and Three Hundred only) and directed the 1 st respondent

to pay the same with interest at the rate of 7.5% per annum from

08.07.2004, the date of the claim petition till the date of realization.

Aggrieved thereby, the 1st respondent is now before this Court in the

appeal on hand.

4. Sri.Pratheesh P., the learned counsel for the 1st

respondent contended that he was the owner cum driver of the

offending vehicle at the relevant time of accident and since notice

was not served on him from the Tribunal, he remained ex parte to

the proceedings. The offending vehicle belonging to him was

insured with National Insurance Company Ltd., Kollam and it has a

valid insurance at the time of accident. The real insurer was not

impleaded as the respondent in the petition seeking compensation.

New India Assurance Company Ltd. was brought on record as the

2nd respondent mistakenly by the petitioner and based on its stand

in the written statement filed that the offending vehicle was not

insured with them, it was exonerated by the Tribunal from liability

to indemnify the 1st respondent insured. In the above context,

liability to pay compensation awarded was fixed on the 1 st

respondent himself. It is contended by the learned counsel that in

the police records relating to the motor accident in question policy

number shown in the petition seeking compensation was that of

vehicle bearing Registration No.KL-2N/1573, in which, the

petitioner was travelling at the relevant time of accident.

5. The policy number of the vehicle with registration No.KL-

2N/1573 in which the petitioner was traveling at the relevant time

was shown as the policy number of the offending vehicle and

therefore the petitioner was misled and impleaded National

Insurance Company Ltd as the insurer of the offending vehicle in

the petition seeking compensation. According to the 1st

respondent, if the real insurer was shown in the array of the

respondents liability to compensate the petitioner would not have

been fixed on him rather the liability would have been fixed on the

insurer to indemnify him. Accordingly, the learned counsel has

sought for setting aside the award and to pass a fresh award after

getting the real insurer into the array of respondents. By virtue of

the order passed on 01.02.2019 in I.A. No.1 of 2018, the real insurer

was brought on record as additional 3rd respondent. Sri. N.S.

Najeeb entered appearance for the additional 3 rd respondent and he

has submitted during the course of argument that the policy with

reference to the autorickshaw bearing registration No.KL-2H/6447

is required to be verified. According to him, if O.P.(MV)

No.851/2004 is remanded for reconsideration, he must be

permitted to file the written statement and to contest the Original

Petition on merits.

6. The petitioner though served with notice in the appeal, did

not appear either in person or through a counsel. Though it was

contended by the 1st respondent that notice was not served on him

from the Tribunal, going by the impugned award, it was found that

the 1st respondent was set ex parte by the Tribunal. If the 1 st

respondent was not served with notice, the Tribunal ought not to

have declared him as ex parte. Therefore, the contention that notice

was not served on him from the Tribunal is devoid of any merits

and is discarded.

7. It is found from the cause title of the award that the

Divisional Manager of National Insurance Company Ltd ., Hospital

Road, Kollam was made the 2 nd respondent in the petition seeking

compensation. The 2nd respondent entered appearance on notice

being served on him and in the written statement filed has taken a

specific contention that they are not holding policy for the

autorickshaw bearing registration No.KL-2H/6447, owned by the 1 st

respondent at the relevant time of the accident. In the above

circumstances, the Tribunal exonerated the 2 nd respondent from

liability to indemnify the 1st respondent and fixed the liability on the

1st respondent to compensate the petitioner.

8. Since the petitioner has not turned up in the appeal on

hand, this Court is not convinced of the reason for wrong

impleadment of the insurer as alleged by the 1 st respondent.

However, the factum remains that the insurer impleaded in the

petition seeking compensation was not the real insurer of the

offending vehicle. The 1st respondent alleges that the offending

vehicle owned by him was insured with National Insurance

Company Ltd., Kollam and a copy of the policy is also made

available as Ext.P1. This Court is convinced that KL-2H/6447 has

valid insurance with National Insurance Company Ltd., the

additional 3rd respondent in the appeal as on date of accident. As

per Ext.P1, the policy issued with No. 570500/31/02/6300012612

in the name of Sri.Rahim K., for the autorickshaw bearing

registration No.KL-2H/6447 has insurance coverage from

30.09.2002 till 29.09.2003. The date of accident being

12.07.2003, the vehicle has valid policy coverage. Due to

non-impleadment of the real insurer, the Tribunal was not apprised

of the factum of insurance coverage of the offending vehicle at the

time of passing of the impugned award. Therefore, interest of

justice demands that the real insurer must be brought on record

and the liability of the insurer, adjudicated by the Tribunal on the

basis of the policy produced now. The award under challenge was

passed uncontested. As the National Insurance Company Ltd is a

necessary party, it must be brought on record in O.P.(MV)

No.851/2004 on the files of Motor Accident Claims Tribunal,

Kollam. It must also be granted with opportunity to file written

statement and to contest the petition seeking compensation on

merits. For the purpose, the impugned award needs to be set aside.

In the result, the MACA stands allowed. The impugned

award is set aside. The Original Petition is remanded to Motor

Accident Claims Tribunal, Kollam for reconsideration and passing

of a fresh award fixing liability upon the real person. The real

insurer shall be brought on record as the 2 nd respondent in the

Original Petition seeking compensation. On the insurer being

impleaded as the 2nd respondent, he must be provided with

reasonable opportunity to file written statement and to contest the

petition seeking compensation on merits. For the purpose,

opportunity must be given to the insurer to cross examine the

petitioner, if any oral evidence let in by him is already on record.

At any rate, the Original Petition shall be reconsidered and a fresh

award shall be passed by the Tribunal within a period of two

months from the date of receipt of a certified copy of this judgment

by it.

Sd/-

MARY JOSEPH

JUDGE

JJ