K.P.Krishnakumar vs Appukuttan
2022 Latest Caselaw 3336 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
             THE HONOURABLE MR.JUSTICE C.S.DIAS
  TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944
                    MACA NO. 1426 OF 2019

AGAINST THE AWARD DATED 30.11.2015 IN OP(MV)NO.2387/2007 OF
  THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR.

APPELLANT/1ST RESPONDENT:

K.P.KRISHNAKUMAR, AGED 43 YEARS, S/O.MALTHI NESYAR, KAPRASSERY HOUSE,PERUMANNU,KECHERY, THRISSUR DISTRICT-680501, NOW RESIDING AT NAMBITTIYATH, KUZHIKKATTUKONAM,MADAYIKONAM.P.O,THRISSUR DISTRICT-680712,(OWNER OF KL-8 AF-8713 MINI LORRY).

BY ADVS. SRI.C.HARIKUMAR SRI.RENJITH RAJAPPAN SRI.HARIKRISHNAN

RESPONDENTS/PETITIONERS AND RESPONDENTS 2 & 3:

1 APPUKUTTAN, AGED 57 YEARS, S/O.LATE KARUNAKARAN, CHAKKAMATTIL HOUSE, CHETTUPUZHA.P.O,THRISSUR DISTRICT-680621, (FATHER OF LATE SINOJ).

    2    MINI,
         AGED 45 YEARS,
         W/O APPUKUTTAN,

CHAKKAMATTIL HOUSE,CHETTUPUZHA.P.O, THRISSUR DISTRICT-680621(MOTHER OF LATE SINOJ)

3 PAULSON, S/O.DEVASSY,MANITHARA HOUSE, DHANYA NAGAR,ANCHERY,THRISSUR DISTRICT-680006, (DL NO.454/88/R.B.NO.109/98 VALID UPTO 24.5.2007) (DRIVER NO.KL-7/AL-1048 LORRY).

M.A.C.A.Nos.1426 & 1432/2019

4 THE ORIENTAL INSURANCE COMPANY LIMITED, LAYAM ROAD,COCHIN, ERNAKULAM-682011(INSURER OF KL-8 AF-8713 MINI LORRY).

BY ADVS. SRI.P.V.CHANDRA MOHAN SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.03.2022, ALONG WITH MACA NO.1432/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.Nos.1426 & 1432/2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 22ND DAY OF MARCH 2022 / 1ST CHAITHRA, 1944 MACA NO. 1432 OF 2019

AGAINST THE AWARD DATED 30.11.2015 IN OP(MV)NO.2388/2007 OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR. APPELLANT/1ST RESPONDENT:

K.P.KRISHNAKUMAR, S/O.MALTHI NESYAR, KAPRASSERY HOUSE, PERUMANNU, KECHERY, THRISSUR DISTRICT-680501, NOW RESIDING AT NAMBITTIYATH, KUZHIKKATTUKONAM, MADAYIKONAM P.O., THRISSUR DISTRICT-680712 (OWNER OF KL-8 AF-8713 MIN LORRY)

BY ADVS. SRI.C.HARIKUMAR SRI.RENJITH RAJAPPAN SRI.HARIKRISHNAN

RESPONDENTS/PETITIONERS AND RESPONDENTS 2 & 3:

      1       APPUKUTTAN,
              AGED 57 YEARS

S/O.LATE KARUNAKARAN, CHAKKAMATTIL HOUSE, CHETTUPUZHA P.O., THRISSUR DISTRICT-680621 (FATHER OF LATE SIJOJ).

      2       MINI,
              AGED 45 YEARS,

W/O.APPUKUTTAN, CHAKKAMATTIL HOUSE, CHETTUPUZHA P.O., THRISSUR DISTRICT-680621 (MOTHER OF LATE SIJOJ).

3 PAULSON, S/O.DEVASSY, MANITHARA HOUSE, DHANYA NAGAR, ANCHERY, THRISSUR DISTRICT-680006 (DL NO.454/88/R.B.NO.109/88. VALID UPTO 24.5.2007) (DRIVER OF KL-7 AL-1048 LORRY).

M.A.C.A.Nos.1426 & 1432/2019

4 THE ORIENTAL INSURANCE COMPANY LIMITED, LAYAM ROAD, COCHIN, ERNAKULAM-682011 (INSURANCE OF KL-8 AF-8713 MINI LORRY). BY ADVS. SRI.P.V.CHANDRA MOHAN SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 22.03.2022, ALONG WITH MACA NO.1426/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.Nos.1426 & 1432/2019

Dated this the 22nd day of March,2022

COMMON JUDGMENT

As the appeals arise out of the common award in

O.P.(MV) Nos.2387/2007 & 2388/2007, respectively, on

the file of the Additional Motor Accidents Claims

Tribunal, Thrissur, they are being disposed of by this

common judgment. The appellant in the two appeals

was the first respondent in the two claim petitions and

the respondents 1 and 2 were the petitioners, and the

respondents 3 and 4 were the respondents 2 and 3

before the Tribunal. The parties are, for the sake of

convenience, referred to as per their status before the

Tribunal.

2. The petitioners in the two claim petitions -

Appukkuttan and Mini - had sought compensation on

account of the death of their children - 'Sinoj' and

'Sijoj'. It was their common case in the claim petitions M.A.C.A.Nos.1426 & 1432/2019

that, on 10.05.2007, while their children, who were

aged 18 and 14 years, were travelling on a motorcycle,

a mini lorry bearing registration No.KL-8-AF-8713, hit

the motorcycle at Thottapadi Junction. Both the

children lost their lives. The lorry was driven by the

second respondent in a negligent manner. The lorry

was owned by the first respondent and insured with

the third respondent. Hence, the petitioners claimed

compensation from the respondents.

3. The Tribunal consolidated and jointly tried

the two claim petitions.

4. The Tribunal, after analysing the pleadings

and materials on record, by its common award,

allowed the claim petitions in part, by permitting the

petitioners to recover from the third respondent an

amount of Rs.5,59,000/- and Rs.4,27,000/- with

interest and cost. However, the Tribunal entered into a

finding that, as the second respondent did not hold a

valid driving licence, the first respondent had violated M.A.C.A.Nos.1426 & 1432/2019

the insurance policy conditions. Therefore, the

Tribunal permitted the third respondent-insurer to pay

the compensation amount in the two claim petitions

and recover the same from the first respondent.

5. Aggrieved by the direction in the impugned

common award permitting the third respondent to

recover the compensation amount from the first

respondent, the first respondent is in appeal.

6. Heard; Sri. C. Harikumar, the learned counsel

appearing for the appellant in both the appeals and

Adv. Smt. K.S. Santhi, the learned counsel appearing

for the fourth respondent/third respondent-insurer in

M.A.C.A.No.1426/2017 and Sri. P. Jacob Mathew, the

learned counsel appearing for the fourth respondent/

third respondent-insurer in M.A.C.A.No.1432/2019.

7. The sole point that emerges for consideration

in both the appeals is whether the direction permitting

the fourth respondent/third respondent-insurer to pay

the compensation amount and recover it from the M.A.C.A.Nos.1426 & 1432/2019

appellant/first respondent is sustainable in law or not.

8. The specific case of the third

respondent-insurer in both the cases was that, the

second respondent did not hold a valid driving licence.

9. It is brought to the notice of this Court that,

even in the causetitle in both the claim petitions, the

petitioners had specifically mentioned that the second

respondent had a Driving Licence bearing

No.454/88/R.B. No.109/88 valid up to 24.05.2007.

However, this fact was not noted by the Tribunal.

10. In addition to the above contention, the

appellant has now produced Ext.B2 driving licence

particulars of the third respondent/second respondent-

driver, which shows that the second respondent had a

valid driving licence to drive a transport vehicle for the

period from 25.05.2004 to 24.05.2007. Therefore, as

on the date of accident i.e., on 10.05.2007, the second

respondent had a valid driving licence. Hence, the

finding of the Tribunal that the second respondent did M.A.C.A.Nos.1426 & 1432/2019

not hold a valid driving licence is erroneous and

wrong.

11. Nonetheless, the appellant as well as the

second respondent had not produced the driving

licence before the Tribunal, despite the contention

raised by the third respondent-insurer in its written

statement that the second respondent did not hold a

valid driving licence. Thus, I find that it is only due to

the latches on the part of the appellant, in not

contesting the cases and producing the driving licence

of the second respondent, that the impugned direction

was passed. Hence, the insurer has been unnecessarily

dragged to this Court and made to contest these

appeals, wasting their time and money, which has to be

compensated by the appellant.

12. Hence, I set aside the impugned direction in

the common award, permitting the third

respondent-insurer to recover the compensation

amount from the appellant/first respondent, subject to M.A.C.A.Nos.1426 & 1432/2019

the condition that, the amount that has been deposited

by the appellant in M.A.C.A.No.1426/2019, as a

pre-condition to file the appeal under Section 173 of

the Motor Vehicles Act, 1988, be released to the fourth

respondent/third respondent-insurer as cost of the

proceedings in M.A.C.A.Nos.1426 & 1432/2019.

However, the amount that has been deposited in

M.A.C.A.No.1432/2019 shall be returned to the

appellant in accordance with law.

In the result, M.A.C.A.Nos.1426 & 1432/2019 are

allowed. The direction in the impugned common award

permitting the fourth respondent/third

respondent-insurer to pay the compensation amount

and recover it from the appellant/first respondent is

set aside, subject to the condition that the fourth

respondent would be entitled to an amount of

Rs.25,000/- that was deposited before the Tribunal as

per Receipt bearing No.7 dated 13.07.2016 as cost of

this proceeding, and the amount deposited as per M.A.C.A.Nos.1426 & 1432/2019

Receipt bearing No.8 dated 13.07.2016 shall be

refunded to the appellant. The appellant and the fourth

respondent-insurer would be at liberty to move the

Tribunal for getting the amounts released, as stated

above, in accordance with law.

Sd/-

                                        C.S.DIAS,JUDGE

DST/22.03.22                                         //True copy/

                                                     P.A.To Judge