Kerala High Court
Sushama Sharafudheen vs Shilju on 23 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
MACA NO. 3934 OF 2022
[AGAINST THE COMMON AWARD DATED 14.03.2022 IN OP(MV)NO.1068/2015
ON THE FILES OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,
KOZHIKODE]
APPELLANT/1ST RESPONDENT:
SUSHAMA SHARAFUDHEEN, AGED 47 YEARS,
W/O.SHARAFUDHEEN `SHAS', CHETTAMKUNNU,
THALASSERY P.O.- 670 101, KANNUR DISTRICT.
BY ADVS.M.SASINDRAN
SATHEESHAN ALAKKADAN
RESPONDENTS/PETITIONER & RESPONDENTS 2 TO 4:
1 KSHAMAVATHI, AGED 57 YEARS, W/O.JAYARAJAN,
EDAKKANDYPARAMBA HOUSE, KURUVISSERI.P.O.,
PARAMBATH ROAD P.O., KOZHIKODE - 673 010.
2 SEENATH, AGED 47 YEARS, W/O. FIROZ,
MARATHETHIL HOUSE, PILAKKOOL P.O, TEMPLE ROAD,
THALASSERY, KANNUR - 670 101.
3 NATIONAL INSURANCE COMPANY LTD., REPRESENTED BY ITS
DIVISIONAL MANAGER, DIVISIONAL OFFICE, NOOR COMPLEX
MAVOOR ROAD, KOZHIKODE - 673 001.
4 NILOFARSHA, W/O.NAJEEB KASIM, 'SHAS', STATE BANK COLONY
CHETTAMKUNNU, THALASSERY - 670101, KANNUR DISTRICT.
BY ADVS.RASHMI.K.V
JOHN SEBASTIAN RALPH V
K.S.SANTHI, SC
T.P.SAJID
ABDUL JALEEL.A(K/166/2003)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 23.03.2023, ALONG WITH MACA.3937/2022, 3954/2022 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA NO.3934, 3937, 3954 & 3936/2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
MACA NO. 3937 OF 2022
[AGAINST THE COMMON AWARD DATED 14.03.2022 IN
OP(MV)NO.737/2015 ON THE FILES OF THE PRINCIPAL MOTOR
ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE]
APPELLANT/1ST RESPONDENT:
SUSHAMA SHARAFUDHEEN, AGED 47 YEARS,
W/O.SHARAFUDHEEN `SHAS', CHETTAMKUNNU,
THALASSERY P.O. - 670 101, KANNUR DISTRICT.
BY ADVS.M.SASINDRAN
SATHEESHAN ALAKKADAN
RESPONDENTS/PETITIONERS & RESPONDENTS 2 TO 4:
1 JAYARAJAN, S/O. KUMARAN, EDAKKANDYPARAMBA
HOUSE, KARUVISSERI P.O., KUNDUPARAMBA,
KOZHIKODE - 673 010.
2 SEENATH, W/O. FIROZ, MARATHETHIL HOUSE,
PILAKKOOL P.O, TEMPLE ROAD, THALASSERY,
KANNUR - 670 101.
3 NATIONAL INSURANCE COMPANY LTD., REPRESENTED BY
ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE,
NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE - 673 001.
4 NILOFARSHA, W/O.NAJEEB KASIM, `SHAS', STATE
BANK COLONY CHETTAMKUNNU, THALASSERY - 670 101,
KANNUR DISTRICT.
BY ADVS.RASHMI.K.V
MACA NO.3934, 3937, 3954 & 3936/2022
-3-
JOHN SEBASTIAN RALPH V
T.P.SAJID
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 23.03.2023, ALONG WITH MACA.3934/2022
AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA NO.3934, 3937, 3954 & 3936/2022
-4-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
MACA NO. 3954 OF 2022
[AGAINST THE COMMON AWARD DATED 14.03.2022 IN
OP(MV)NO.1330/2015 ON THE FILES OF THE PRINCIPAL MOTOR
ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE]
APPELLANT/1ST RESPONDENT:
SUSHAMA SHARAFUDHEEN, AGED 47 YEARS,
W/O.SHARAFUDHEEN `SHAS', CHETTAMKUNNU,
THALASSERY P.O.- 670 101, KANNUR DISTRICT.
BY ADVS.M.SASINDRAN
SATHEESHAN ALAKKADAN
RESPONDENTS/PETITIONER AND RESPONDENT NOS.2 TO 4:
1 OMANA, AGED 49 YEARS, D/O. SANKARAN,
KIZHUVANA HOUSE, THACHOLITHAZHATH,
KANNANKARA P.O., KOZHIKODE DISTRICT - 673 616,
NOW RESIDING AT HOUSE NO.418 S, MAHIMAPUR,
BIBAN MAU.P.O, KERAKAT TALUK,
JAUNPUR DISTRICT, PIN - 222 136.
2 SEENATH, W/O. FIROZ, MARATHETHIL HOUSE,
PILAKKOOL P.O, TEMPLE ROAD, THALASSERY,
KANNUR - 670 101.
3 NATIONAL INSURANCE COMPANY LTD.
REPRESENTED BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD,
KOZHIKODE - 673 001.
4 NILOFARSHA, W/O.NAJEEB KASIM, `SHAS',
STATE BANK COLONY, CHETTAMKUNNU,
THALASSERY - 670 101, KANNUR DISTRICT.
MACA NO.3934, 3937, 3954 & 3936/2022
-5-
BY ADVS.SALAHUDDEEN AVM
JOHN SEBASTIAN RALPH V
T.P.SAJID
A.D.DIVYA(K/1001/2010)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 23.03.2023, ALONG WITH MACA.3934/2022
AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA NO.3934, 3937, 3954 & 3936/2022
-6-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
MACA NO. 3936 OF 2022
[AGAINST THE COMMON AWARD DATED 14.03.2022 IN
OP(MV)NO.918/2015 ON THE FILES OF THE PRINCIPAL MOTOR
ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE]
APPELLANT/1ST RESPONDENT:
SUSHAMA SHARAFUDHEEN, AGED 47 YEARS,
W/O.SHARAFUDHEEN `SHAS', CHETTAMKUNNU,
THALASSERY P.O. - 670 101, KANNUR DISTRICT.
BY ADVS.M.SASINDRAN
SATHEESHAN ALAKKADAN
RESPONDENTS/PETITIONERS & RESPONDENTS 2 TO 4:
1 SHILJU, AGED 38 YEARS, S/O. PRAKASAN,
KIZHUVANA HOUSE, EDAKKAD, P.O.WEST HILL,
KOZHIKODE DISTRICT - 673 005.
2 SHIMJA, AGED 35 YEARS, W/O.VINODKUMAR,
THADANGATTU VAYAL, ELATHOOR.P.O.,
KOZHIKODE DISTRICT - 673 303.
3 SEENATH, W/O. FIROZ, MARATHETHIL HOUSE,
PILAKKOOL P.O, TEMPLE ROAD, THALASSERY,
KANNUR - 670 101.
4 NATIONAL INSURANCE COMPANY LTD.,
REPRESENTED BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD,
KOZHIKODE - 673 001.
MACA NO.3934, 3937, 3954 & 3936/2022
-7-
5 NILOFARSHA, W/O.NAJEEB KASIM, `SHAS',
STATE BANK COLONY, CHETTAMKUNNU,
THALASSERY - 670 101, KANNUR DISTRICT.
BY ADVS.JOHN SEBASTIAN RALPH V
K.S.SANTHI
T.P.SAJID
VISHNU CHANDRAN(K/001339/2018)
RALPH RETI JOHN(K/001520/2018)
APPU BABU(K/000634/2020)
SHIFNA MUHAMMED SHUKKUR(K/000671/2020)
GIRIDHAR KRISHNA KUMAR(K/00744/2022)
VISHNUMAYA M.B.(K/002474/2021)
GEETHU T.A.(K/3389/2022)
APOORVA RAMKUMAR(K/002237/2021)
ABDUL JALEEL.A(K/166/2003)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 23.03.2023, ALONG WITH MACA.3934/2022
AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA NO.3934, 3937, 3954 & 3936/2022
-8-
JUDGMENT
[MACA Nos.3934/2022, 3937/2022, 3954/2022, 3936/2022]
These matters are of the year 2022 and have
not been yet admitted. However, all sides are ad
idem that it can be disposed of, after being
formally admitted, based on the undisputed
evidence on record, handed over by them across
the Bar. I, therefore, admit these Appeals and
proceed to dispose them of finally, with the
consent of all sides.
2. The focal question in all these Appeals,
filed by the owner of the offending vehicle -
which was involved in an accident on 11.01.2015,
which led to the death of one passenger and
injuries to another three - is whether it was
driven by the 2nd respondent - Smt.Seenath, or by
the 4th respondent - Smt.Nilofarsha.
3. Sri.M.Sasindran - learned counsel for
MACA NO.3934, 3937, 3954 & 3936/2022
the appellant, vehemently argued that the
evidence on record would clearly establish that
the 4th respondent - Nilofarsha was driving the
vehicle at the time of the accident; and that,
since she had a valid licence, the learned
Tribunal could not have exonerated the Insurance
Company, which had insured the offending
vehicle, on the ground that the driver did not
have a valid licence and that there was
violation of the policy conditions. He thus
prayed that these Appeals be allowed and the
findings against his client be vacated.
4. In response, the learned counsel for the
claimants in these cases, Smt.A.D.Divya and
Smt.K.V.Reshmi, argued that the controversy
between the parties has no bearing upon their
clients, since the learned Tribunal had already
awarded compensation in their favour; but that
they were unable to execute it because the
MACA NO.3934, 3937, 3954 & 3936/2022
Insurance Company had been exonerated. They
vehemently argued that, in fact, the finding of
the learned Tribunal, that the Insurance Company
is not liable to pay the compensation is unfair
and uncharitable, particularly when the evidence
on record can only lead to the indubitable
conclusion that it was Nilofarsha who was
driving the vehicle, and had a valid licence.
They thus prayed that the findings of the
learned Tribunal, exonerating the Insurance
Company, be set aside.
5. Sri.John Sebastian Ralph V. - learned
counsel appearing for Smt.Seenath, submitted
that he does not want to make any specific
comments on the controversy projected,
particularly when the involvement of his client
in the accident is disproved by the evidence on
record.
6. Sri.T.P.Sajid - learned counsel
MACA NO.3934, 3937, 3954 & 3936/2022
appearing for the 4th respondent - Nilofarsha,
submitted that, in fact, it was his client who
was driving the vehicle; but that the accident
occurred not because of any negligence on her
part, but because of the conditions beyond her
control.
7. Smt.K.S.Santhi - learned Standing
Counsel for the Insurance Company, in refutation
of the afore submissions of Sri.M.Sasindran and
Sri.T.P.Sajid, argued that the case impelled by
the appellant is not merely fallacious, but very
mischievous. She pointed out that RW2 - who is
the occurrence witness - clearly identified the
driver to be Seenath; however, conceding that
his statement is to the effect that she was
wearing a 'Purdah'; and further that the second
Final Report filed by the Police before the
competent Criminal Court, namely Ext.B3, has
been found to be the consequence of a very
MACA NO.3934, 3937, 3954 & 3936/2022
imperfect and insoucient investigation. She
argued that it is, in fact, Ext.B2 - Final
Report, which is relevant; and that it has been
spoken about by the Investigating Officer,
namely RW1, to the effect that it was consequent
to a proper investigation. She, therefore,
prayed that the afore Appeals be dismissed.
8. I have considered the afore rival
submissions on the touchstone of the evidence on
record - copies of which have been handed over
across the Bar by the learned counsel for the
parties with the express consent that it can be
acted upon by this Court without dispute.
9. As I have said above, the sole
controversy in these cases is whether it was
Smt.Seenath or Smt.Nilofarsha, who was driving
the offending vehicle, at the time of the
accident.
10. Interestingly, Sri.T.P.Sajid -
MACA NO.3934, 3937, 3954 & 3936/2022
learned counsel for Nilofarsha, admits that it
was his client who was driving; but asserts that
there was no negligence on her part. On the
other hand, the evidence shows that the case
against Smt.Seenath was taken to trial by a
competent Criminal Court and that she was
acquitted under Section 255(1) of the Code of
Criminal Procedure. However, the judgment of the
said court, which was delivered in
C.C.No.363/2016, has neither been produced
before the learned Tribunal, nor did it obtain
any occasion to examine the same.
11. I am afraid that when this be so, the
learned Tribunal could not have entered into an
affirmative conclusion, as it has done now,
merely based on the testimony of the occurrence
witness, who, as I have already said above,
testified that the driver was wearing a
'Purdah', as also other travellers in the Car. I
MACA NO.3934, 3937, 3954 & 3936/2022
do not want to say anything further, because I
propose to remand this matter to the learned
Tribunal for fresh consideration on this issue.
12. Suffice to say, when there are two Final
Reports, and the Investigating Officers who
settled them, have spoken on the correctness of
both of them, it was certainly up to the learned
Tribunal to have verified the further inputs,
including the judgment of the competent Criminal
Court in C.C.No.363/2016, which ought to have
been produced before it by the parties,
especially the alleged driver, or the appellant
- owner, of the offending vehicle.
In the afore circumstances, I allow these
Appeals and set aside the impugned Award of the
learned Tribunal, to the extent to which it has
exonerated the Insurance Company, finding that
the driver of the offending vehicle did not have
a valid licence; thus remanding the Original
MACA NO.3934, 3937, 3954 & 3936/2022
Petitions for fresh consideration on this
aspect, particularly as to who was the real
driver of the vehicle; which shall be done,
after affording all parties necessary
opportunity of leading additional/fresh evidence
and of further hearing; thus culminating in a
new Award in this regard, as expeditiously as is
possible, but not later than six months from the
date of receipt of a copy of this judgment. For
this purpose, I direct the parties to mark
appearance before it at 11 a.m. on 12.04.2023.
Needless to say, I have not entered into the
correctness of the compensation awarded by the
Tribunal in favour of the claimants - it being
not a question raised - and I, therefore,
confirm the same and make it clear that
reconsideration by the learned Tribunal will be
solely on the question as to who was the driver
of the offending vehicle and as to whether the
MACA NO.3934, 3937, 3954 & 3936/2022
Insurance Company can be made liable for payment
of the compensation.
Sd/-
DEVAN RAMACHANDRAN
akv JUDGE
