Kerala High Court
Manikuttan vs Gireesh Kumar & Others on 8 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943
MACA NO. 2478 OF 2010
AGAINST THE JUDGMENT IN OP(MV) 741/2003 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL ,NEYYATTINKARA
APPELLANT/APPLICANT:
MANIKUTTAN, THIDUTHIDUPPANVILA VEEDU,
PARANIYAM, POOVAR P.O., NEYYATTINKARA.
BY ADVS.
SRI.R.T.PRADEEP
SRI.V.VIJULAL
RESPONDENTS/RESPONDENTS:
1 GIREESH KUMAR, KUMARAMANGALAM,
NEAR SPINNING MILL, BALARAMAPURAM P.O., NEYYATTINKARA.
2 THE MANAGER THE NEW INDIA ASSURANCE
CO. LTD., SREE HARI BUILDING, NEAR BUS STAND JUNCTION,
NEYYATTINKARA - 695 121.
3 LAWRANCE, S/O.KESAVAN
CHERUKARIPUTHEN VEEDU, PUTHENKADA, THIRUPURAM P.O.
BY ADVS.
SRI.J.HARIKUMAR
SMT.T.C.SOWMIAVATHY
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION
ON 08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 2478 OF 2010
2
JUDGMENT
The appellant was the petitioner in O.P (MV)
No.741/03 on the file of the Motor Accidents Claims
Tribunal, Neyyattinkara. The respondents in the appeal
were the respondents before the Tribunal.
2. The appellant had initially filed the claim petition
under Section 166 of the Motor Vehicles Act, 1988 (for
brevity referred to as 'the Act') claiming compensation on
account of the injuries that he sustained in an accident on
23.10.2002. During the pendency of the claim petition, the
appellant amended the claim petition and converted it one
under Section 163A of the Act. It was his case in the claim
petition that, on 23.10.2002, while he was travelling pillion
on a scooter bearing Reg.No.KBV-8636 (scooter) from
Pazhayakada to Neyyattinkara, when the scooter reached
the place of accident, the driver of the scooter rode the
MACA NO. 2478 OF 2010
scooter in a rash and negligent manner and hit against an
ambassador car (car) which was parked on the side of the
road. Due to the accident, the appellant sustained serious
injuries, including a fracture. The scooter was owned by
the 1st respondent and insured with the 2nd respondent.
The appellant was a coolie worker and earning a monthly
income of Rs.3,000/. The appellant claimed a
compensation of Rs.2,01,000/- from the respondents,
which was limited to Rs.1,50,000/-.
3. The 1st respondent had filed a written statement
refuting the allegations in the claim petition. It was his
specific case that, he had sold the scooter to one Lawrence
on 15.5.2002. The scooter had a valid insurance coverage
with the 2nd respondent. Hence, even if the 1st respondent
was liable to pay the compensation, it was the 2 nd
respondent who is to indemnify his liability.
4. The 2nd respondent filed a written statement
contending that the scooter involved in the accident was
MACA NO. 2478 OF 2010
not insured by the 2nd respondent. The scooter was
insured with the United India Insurance Co.Ltd. The FIR
was lodged three months after the accident. Therefore,
the claim petition is to be dismissed. Subsequently, the 2 nd
respondent filed an additional written statement admitting
that the scooter had a valid insurance coverage. However,
it was contended that the appellant was a gratuitous
passenger and was not entitled for compensation. The
accident occurred due to the negligence on the part of the
driver of the car. The non-impleadment of the driver,
owner and insurer of the car rendered the claim petition
bad for non-joinder of necessary parties. Hence, the claim
petition may be dismissed.
5. The Tribunal allowed the claim petition by
permitting the appellant to realise an amount of
Rs.60,200/- from the 2nd respondent - the insurer of the
scooter.
6. The 2nd respondent challenged the award before
MACA NO. 2478 OF 2010
this Court in MACA No.1076/2009. This Court by its
judgment dated 18.11.2009, finding that the scooter
belonged to one Lawrence, as per charge-sheet, set aside
the award and remitted the matter back to the Tribunal
and directed the appellant to implead Lawrence as an
additional party in the claim petition. The Tribunal was
directed to formulate proper issues, particularly with
regard to the ownership of the vehicle and the liability of
the insurance company, and decide the matter in
accordance with law.
7. Subsequent to the remand, the appellant filed I.A
6307/09, and sought leave to implead the additional 3 rd
respondent as a party in the claim petition. The
application was allowed and the additional 3 rd respondent
was impleaded.
8. The additional 3rd respondent filed a written
statement, inter alia,contending that the scooter was
owned by the 1st respondent. He had only taken interim
MACA NO. 2478 OF 2010
custody of the scooter from the Police, with the consent of
the 1st respondent. The scooter had a valid insurance
coverage and, therefore, the 2nd respondent was liable to
pay the compensation.
9. The Tribunal on a re-consideration of the matter -
pursuant to the remand and the impleadment of the
additional 3rd respondent - held that the appellant had not
succeeded in proving that the 1 st respondent or the 3rd
respondent were the owners of the scooter. Consequently,
the claim petition was dismissed.
10. Aggrieved by the dismissal, the petitioner is again
in appeal.
11. Heard; Sri.R.T.Pradeep, the learned counsel
appearing for the appellant/petitioner, Sri.J.Harikumar,
the learned counsel appearing for the 1st respondent and
Smt.T.C.Sowmiavathy, the learned counsel appearing for
the 2nd respondent.
12. Sri.R.T.Pradeep, strenuously argued that in a
MACA NO. 2478 OF 2010
claim under Section 163A of the Act, the Tribunal/Courts
need not look into the aspect of ownership as well as
negligence, since the provision opens with a non-obstinate
clause. He contended that in view of the language used in
Section 163A of the Act, this Court can direct the insurer
to pay the compensation amount de hors the conditions in
the insurance policy, even if it is only an 'Act Policy'.
Hence, he prayed that the claim petition be allowed by
directing the insurer to pay the compensation amount.
13. Sri.J.Harikumar, the learned counsel appearing
for the 1st respondent, contended that this Court had in its
earlier judgment in MACA No. 1076/2009, found that the
1st respondent is the owner of the vehicle. The said finding
operates as res judicata. Hence the 1 st respondent may be
exonerated.
14. Smt.T.C.Sowmiavathy, the learned counsel
appearing for the 2nd respondent - insurer, argued that as
the insurance policy is an 'Act Policy', the 2 nd respondent
MACA NO. 2478 OF 2010
is not liable to indemnify the 1 st respondent. Therefore,
the appeal as against the 2nd respondent may be dismissed.
15. The question that arises for consideration in the
appeal is whether the impugned award passed by the
Tribunal is correct or not?
16. The sheet anchor of Sri.R.T.Pradeep was that as
Section 163A of the Act commences with a non-obstinate
clause, the insurer is liable to pay compensation, even if
the claimant was a gratuitous passenger or the policy is an
'Act Policy'. The said contention is no longer res integra in
view of the law laid down by this Court in New India
Assurance Co.Ltd v. Thomas [2014 (3) KLT 119] ,wherein
this Court considered the very same contention, and held
that, if the vehicle is covered by an Act only policy, the
insurer is not liable to pay compensation, even in a claim
petition filed under Section 163A of the Act. I fully agree
and endorse with the finding. Therefore, the above
contention fails and is found against the appellant.
MACA NO. 2478 OF 2010
17. Now coming to the next contention i.e, whether
the appellant has proved that the 3rd respondent is the
owner of the vehicle.
18. This Court had in the earlier round of litigation
found that in Ext.A1 charge-sheet filed by the Police, it
was the 3rd respondent who was the owner of the vehicle.
19. The appellant did not discredit the charge-sheet
by examining himself or witnesses, as laid down by this
Court in New India Assurance Co. Ltd v. Pazhaniammal
[2011 (3) KLT 648]. Therefore, the charge-sheet has
relevance and is significant.
20. Even though the appellant had impleaded the
additional 3rd respondent as a party in the claim petition,
he did not carry out any consequential amendment in the
claim petition, alleging that the 3 rd respondent was the
owner of the vehicle and that the 3 rd respondent was
vicariously liable to pay the compensation on account of
the injuries sustained to the appellant. Instead, the 3 rd
MACA NO. 2478 OF 2010
respondent bluntly denied the ownership of the
motorcycle. The appellant also did not let in any evidence
to prove that the vehicle belonged to the 3 rd respondent.
Surprisingly, the appellant did not name or implead the
alleged driver of the motorcycle or the car involved in the
accident, even though he was given one more opportunity
by this Court.
21. It is settled that negligence need not be proved in
a claim under Section 163A of the Act, but that does not
mean that an insurer or owner of an alleged offending
vehicle can be directed to pay compensation merely
because a claim petition is filed without any pleading or
proof. The onus is always on the claimant to prove and
establish the ownership and liability even in a claim under
Section 163A of the Act.
22. On a comprehensive re-appreciation of the
pleadings and materials on record, I am of the considered
opinion that the findings of the Tribunal that the appellant
MACA NO. 2478 OF 2010
has miserably failed to prove that the 3 rd respondent was
the owner of the vehicle is correct and justifiable. Hence,
I answer the question against the appellant.
In the result, the appeal fails and is hence dismissed.
The parties shall bear their respective costs.
ma/09.09.2021 Sd/- C.S.DIAS, JUDGE
/True copy/
P.S to Judge
