Kerala High Court
P.K.Korah vs National Insurance Company Ltd on 1 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 1ST DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943
MACA NO. 346 OF 2012
AGAINST THE AWARD IN OP(MV) 891/2005 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL ,PERUMBAVOOR, ERNAKULAM
APPELLANTS/RESPONDENTS 1 & 2:
1 P.K. KORAH
AGED 62 YEARS
S/O.KURIAKOSE, PALAKKAPPADIYIL HOUSE,
THURUTHI.P.O., VENGOOR WEST VILLAGE,
KUNNATHUNADU KARA, ERNAKULAM DISTRICT.
2 JUSTIN.N.O.
S/O.ELIYAMMA THOMAS, NADUVATHUSSERY HOUSE,
KIDANGOOR.P.O., ANGAMALY VILLAGE,
ERNAKULAM DISTRICT.
BY ADV SRI.A.C.DEVASIA
RESPONDENTS/3RD RESPONDENT AND PETITIONERS 1 TO 4:
1 NATIONAL INSURANCE COMPANY LIMITED,
REPRESENTED BY ITS BRANCH MANAGER, KOLENCHERRY,
OFFICE AT KOLENCHERRY,
ERNAKULAM DISTRICT - 682 311.
2 DHANYA, AGED 27 YEARS
W/O.SHALIN, KOCHAPILLY HOUSE, MATTOOR,
KALADY.P.O. - 683 574.
3 ANAGHA (MINOR), AGED 7 YEARS
D/O.SHALIN, KOCHAPILLY HOUSE, MATTOOR,
KALADY.P.O.
(MINOR IS REPRESENTED BY HER MOTHER,
2ND RESPONDENT, DHANYA, W/O.SHALIN,
KOCHAPILLY HOUSE, MATTOOR, KALADY.P.O.- 683 574)
4 PAULOSE, AGED 58 YEARS
S/O.VAREED, KOCHAPILLY HOUSE, MATTOOR,
KALADY.P.O. - 683 574.
M.A.C.A Nos.346 & 429 of 2012
2
5 MARY
AGED 51 YEARS
W/O.PAULOSE, KOCHAPILLY HOUSE, MATTOOR,
KALADY.P.O.
BY ADVS.
SRI.P.JACOB MATHEW, SC
SRI.MATHEWS JACOB SR., SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 01.11.2021, ALONG WITH MACA.429/2012, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A Nos.346 & 429 of 2012
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 1ST DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943
MACA NO. 429 OF 2012
AGAINST THE AWARD IN OP(MV) 1911/2005 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL ,PERUMBAVOOR, ERNAKULAM
APPELLANTS/RESPONDENTS 1 & 2:
1 P.K.KORAH
S/.KURIAKOSE, AGED 62 YEARS,
PALAKKAPPILLY HOUSE, THURUTHI P.O.,
VENGOOR WEST VILLAGE, KUNNATHUNADU KARA,
PERUMBAVOOR VILLAGE, ERNAKULAM DISTRICT.
2 JUSTIN.N.O.
S/O.ELIYAMMA THOMAS, NADIVATHUSSERY HOUSE,
KIDANGOOR P.O., ANGAMALY VILLAGE,
ERNAKULAM DISTRICT.
BY ADV SRI.A.C.DEVASIA
RESPONDENT/3RD RESPONDENT/PETITIONER:
1 NATIONAL INSURANCE COMPANY LTD
REPRESENTED BY ITS BRANCH MANAGER, KOLENCHERRY,
OFFICE AT KOLENCHERRY,
ERNAKULAM DISTRICT-682 311.
2 JOSEPH
S/O.DEVASSY, MAROTTYKUDY HOUSE, PANAYALI KARA,
MANICKAMANGALAM P.O.-682 574.
BY ADV. SRI.E.M.JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 01.11.2021, ALONG WITH MACA.346/2012, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A Nos.346 & 429 of 2012
4
JUDGMENT
Respondents 1 and 2 in O.P.(M.V)
No.891/2005 are the appellants in M.A.C.A
No.346/2012. The same appellants preferred
M.A.C.A. No.429/2012, challenge award in O.P.
(M.V) No.1911/2005.
2. The crux of the dispute is confined to
grant of recovery right in favour of the 3rd
respondent on the finding that there was
violation of policy conditions since the
vehicle involved in the accident bearing
registration no.KL-5C-9050 was engaged in
carrying passengers of a private marriage
function, against the stipulations in the
permit, issued to run as a public passenger
vehicle.
3. It is submitted by the learned counsel
for the appellants, the driver and owner of
the vehicle involved in the accident, that the
accident occurred while the vehicle was
M.A.C.A Nos.346 & 429 of 2012
running in the regular route for which a
temporary permit was issued and the appellants
could not adduce evidence before the Tribunal
since they were set ex-parte by the Tribunal.
Copy of FIS produced as annexure along with
this appeal had been given emphasis in this
regard, apart from highlighting temporary
permit issued on 15.04.2005 to run the vehicle
from Kalady to Angamaly for which originally
permit was given to the bus bearing
registration no.KCE 6567. Going by the copy of
temporary permit forming part of this appeal
memorandum, valid permit for the bus from
17.04.2005 to 16.08.2005 to run in between
Kalady to Angamaly, could be gathered. It is
not in dispute that the accident was at
Karukutty in the same route on 17.04.2005,
though it is submitted by the learned counsel
for the Insurance Company that the vehicle was
running through another route.
M.A.C.A Nos.346 & 429 of 2012
4. Going by the award impugned, the
learned Tribunal given emphasis to find permit
violation based on the recitals in the charge
sheet. It has been recited in the police
charge that the bus was conducting special
service in connection with a marriage and a
separate report was sent to the RTO for
cancelling the permit of the vehicle and the
Driving Licence and badge of the driver, and a
petty case was also registered as No.875/2005.
It is submitted by the learned counsel for the
appellants further that, in that criminal case
the appellants were acquitted. Therefore, the
learned counsel prayed for an opportunity for
the appellants before the Tribunal to prove
that the vehicle was on regular route and the
vehicle did not carry passengers in a special
service.
5. Reading the permit and the FIS, this
argument is having force subject to proof of
M.A.C.A Nos.346 & 429 of 2012
the same by independent evidence. However,
the police charge marked in this case as
Ext.A5 would recite as reiterated by the
Tribunal.
6. Having heard both sides, I am of the
view that an opportunity to be given to
appellants to prove the limited question as to
whether the bus bearing registration No.KL-5C-
9050 (the offending vehicle) was on regular
operation on the date of accident in terms of
the temporary permit issued or else the bus
was used to carry persons in connection with
the marriage as a special service.
7. It is submitted by the learned counsel
for the Insurance Company that reasonable cost
to the Company is to be granted to save the
Company from unnecessary litigating expenses.
This submission appears to be having force.
However, I am inclined to allow the appeal on
payment of cost of Rs.15,000/- by the
M.A.C.A Nos.346 & 429 of 2012
appellants in favour of the Insurance Company.
8. Having considered the same, I am of
the view that the common award in O.P.(M.V.)
Nos.891/2005 and 1911/2005 dated 08.05.2009 is
liable to be set aside to the limited extent
whereby grant of recovery right in favour of
the Insurance Company was granted and I do the
same subject to payment of Rs.15,000/- as
cost. It is made clear that the award passed
by the Tribunal in relation to fixation of
compensation and its deposit by the Company
thereafter, are not in any way interfered and
the said finding of the Tribunal stands
upheld.
9. It is specifically submitted by the
learned counsel for the appellants that the
recovery proceedings in tune with the award
impugned is on the anvil and, therefore, the
same may be stayed. Since the award in that
line is set aside, there is no meaning in
M.A.C.A Nos.346 & 429 of 2012
continuing the recovery proceedings.
Therefore, recovery proceeding stands stayed
till a fresh decision is to be taken by the
Tribunal in this matter.
10. In the result, this appeal is allowed
and the award is interfered and set aside to
the extent whereby grant of recovery right in
favour of the Insurance Company was granted
while confirming all other findings of the
Tribunal. Thus the matter is remitted to the
Tribunal to decide the said issue alone.
Parties are directed to appear before the
Tribunal on 01.12.2021.
It is ordered that the appellant shall
deposit or to hand over cheque for Rs.15,000/-
(Rupees Fifteen Thousand and Five Hundred
Only) towards cost in the name of National
Insurance Company, Kolencherry within 15 days
from the date of appearance of the parties
before the Tribunal. It is specifically
M.A.C.A Nos.346 & 429 of 2012
ordered further that, if the appellants
default payment of cost as ordered above
within the time fixed by this Court, the award
will be revived and operative and so that the
Insurance Company could very well proceed to
recover the same as per the impugned award and
the Tribunal can close the matter by recording
so.
Registry shall forward a copy of the
judgment along with back records to the
Tribunal within 7 days.
Sd/-
A.BADHARUDEEN, JUDGE.
ww
M.A.C.A Nos.346 & 429 of 2012
APPENDIX OF M.A.C.A NO.346/2012
APPELLANTS' ANNEXURES:
ANNEXURE 1 TRUE COPY OF THE PERMIT OF
PREDECESSORS AND THE PERMIT OF THE
APPELLANT.
ANNEXURE 2 TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE RESPONDENT IN O.P.(M.V)
NO.891/05 DATED 30.1.2008.
ANNEXURE 3 TRUE COPY OF THE FIRST INFORMATION
STATEMENT IN CRIME NO.223/2005 OF THE
KALADY POLICE STATION.
ANNEXURE 4 TRUE COPY OF THE SCENE MAHAZAR IN
CRIME NO.223/2005
ANNEXURE 5 TRUE COPY OF THE CHARGE SHEET IN C.C.
NO.894/2005 OF KALADY POLICE STATION.
ANNEXURE 6 TRUE COPY OF THE REPORT OF THE
INSPECTION OF THE MOTOR VEHICLE
INVOLVED IN THE ACCIDENT DATED
20.4.2005.
M.A.C.A Nos.346 & 429 of 2012
APPENDIX OF M.A.C.A NO.429/2012
APPELLANTS' ANNEXURES:
ANNEXURE 1 TRUE COPY OF THE PERMIT OF
PREDECESSORS AND THE PERMIT OF THE
APPELLANT.
ANNEXURE 2 TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE RESPONDENT IN O.P.(M.V)
NO.891/05 DATED 30.1.2008.
ANNEXURE 3 TRUE COPY OF THE FIRST INFORMATION
STATEMENT IN CRIME NO.223/2005 OF THE
KALADY POLICE STATION.
ANNEXURE 4 TRUE COPY OF THE SCENE MAHAZAR IN
CRIME NO.223/2005
ANNEXURE 5 TRUE COPY OF THE CHARGE SHEET IN C.C.
NO.894/2005 OF KALADY POLICE STATION.
ANNEXURE 6 TRUE COPY OF THE REPORT OF THE
INSPECTION OF THE MOTOR VEHICLE
INVOLVED IN THE ACCIDENT DATED
20.4.2005.
