Kerala High Court
Rajagopalan.A vs Rahul on 24 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
MACA NO. 2250 OF 2013
AGAINST THE AWARD DATED 28.04.2010 IN OPMV 1991/2004 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA
APPELLANT/1ST RESPONDENT:
RAJAGOPALAN A.
S/O.P.A.ACHARI, RAHUL NIVAS, PERUMPAZHUTHOOR
P.O PIN-695 126
BY ADVS.
SRI.K.JAJU BABU
SRI.BRIJESH MOHAN
SRI.T.S.SHYAM PRASANTH
SMT.M.U.VIJAYALAKSHMI
RESPONDENTS/RESPONDENTS 2 & 3 & APPLICANTS:
1 RAHUL
S/O RANJAGOPAL, RAHUL NIVAS, PERUMPAZHUTHOOR
VILLAGE, PIN-695 126
2 THE MANAGER
NEW INDIA ASSURANCE CO., 2ND FLOOR,
SWADESHABHIMANI COMPLEX, NEYYATTINKARA, PIN-695
121.
3 MADHUSOODHANAN, SO.KUNJUSANKARAN
GEETHA BHAVAN, VAZHAVILKOM, PUNNAKADU,
PERUMPAZHUTHOOR VILLAGE, PIN-695 126.
4 K. AMBILI( DELETED)
S/O..KUNJUSANKARAN, GEETHA BHAVAN, VAZHAVILKOM,
PUNNAKADU, PERUMPAZHUTHOOR VILLAGE, PIN-695
126. (R4 IS DELETED FROM THE PARTY ARRAY AT THE
RISK OF THE APPELLANT VIDE ORDER DATED
20.,02.2014 IN IA 496/2014)
BY ADVS.
SRI.T.R.SADEESAN
SRI.P.JACOB MATHEW
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 24.03.2023, ALONG WITH MACA.2251/2013,
2252/2013, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.A.C.A Nos.2250 of 2013 & connectns...
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
MACA NO. 2251 OF 2013
AGAINST THE AWARD DATED 28.04.2010 IN OPMV 1988/2004 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA
APPELLANT/1ST RESPONDENT:
RAJAGOPALAN.A
S/O.P.A.ACHARI, RAHUL NIVAS, PERUMPAZHUTHOOR
P.O., PIN-695 126.
BY ADVS.
SRI.K.JAJU BABU
SRI.BRIJESH MOHAN
SRI.T.S.SHYAM PRASANTH
SMT.M.U.VIJAYALAKSHMI
RESPONDENTS/RESPONDENTS 2 & 3 APPLICANT:
1 RAHUL
S/O.RAJAGOPAL, RAHUL NIVAS, PERUMPAZHUTHOOR
P.O.,695 126.
2 THE MANAGER
NEW INDIA ASSURANCE CO. 2ND FLOOR,
SWADESHABHIMANI COMPLEX, NEYYATTINKARA, PIN-695
121.
3 SUKU K. DELETED
S/O.KESAVAN NADAR, MEKKUMKARA PUTHEN VEEDU,
KEELIYODE, MARANALLOOR VILLAGE-695 126.
RESPONDENT NO 3 IS DELETED FROM THE PARTY ARRAY
AT THE RISK OF THE APPELLANT VIDE ORDER DATED
20.02.2014 IN IA 494 OF 2014 IN MACA 2251 OF
2013.
BY ADVS.
SRI.T.R.SADEESAN
SRI.P.JACOB MATHEW
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP
FOR ADMISSION ON 24.03.2023, ALONG WITH MACA.2250/2013
AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A Nos.2250 of 2013 & connectns...
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
MACA NO. 2251 OF 2013
AGAINST THE AWARD DATED 28.04.2010 IN OPMV 1990/2004 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA
APPELLANT/1ST RESPONDENT:
RAJAGOPALAN.A
S/O.P.A.ACHARI, RAHUL NIVAS, PERUMPAZHUTHOOR
P.O., PIN-695 126.
BY ADVS.
SRI.K.JAJU BABU
SRI.BRIJESH MOHAN
SRI.T.S.SHYAM PRASANTH
SMT.M.U.VIJAYALAKSHMI
RESPONDENTS/RESPONDENTS 2 & 3 APPLICANT:
1 RAHUL
S/O.RAJAGOPAL, RAHUL NIVAS, PERUMPAZHUTHOOR
P.O.,695 126.
2 THE MANAGER
NEW INDIA ASSURANCE CO. 2ND FLOOR,
SWADESHABHIMANI COMPLEX, NEYYATTINKARA, PIN-695
121.
3 JOY. DELETED
S/O GAMMALI, MEKUMKARA PUTHEN VEEDU,
KEELIYODE, MARANALLOOR VILLAGE, PIN- 695 126.
RESPONDENT NO 3 IS DELETED FROM THE PARTY ARRAY
AT THE RISK OF THE APPELLANT VIDE ORDER DATED
20.02.2014 IN IA 488 OF 2014 IN MACA 2252 OF
2013.
BY ADVS.
SRI.T.R.SADEESAN
SRI.P.JACOB MATHEW
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 24.03.2023, ALONG WITH MACA.2250/2013
AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
M.A.C.A Nos.2250 of 2013 & connectns...
4
JUDGMENT
The only question in these three appeals which emanate
out of the same road accident and from the common Award of
the Motor Accidents Claims Tribunal, Neyyattinkara ('Tribunal'
for short), is whether the offending vehicle involved in the
same was driven by the appellant herein, or by his son -
Sri.Rahul.
2. Sri Brijesh Mohan - learned counsel for the
appellant in all three cases - which have been heard together
on account of the afore stated reasons - assailed the Awards
of the Tribunal in OP(MV) Nos.1988/2004, 1990/2004 and
1991/2004 filed by two persons, who were injured in the
accident and by the legal heirs of another, who was killed in it,
asserting that the finding entered into by it, that his client's
son was driving the vehicle is totally untenable and contrary
to truth. He pointed out that, as manifest from Annexure-A
judgment produced by his client as additional evidence before
this Court, under the ambit of Order XLI Rule 27 of the Code
of Civil Procedure, the competent Judicial Magistrate of First
Class - Neyyattinkara has, in C.C.No.589/2005, exonerated
M.A.C.A Nos.2250 of 2013 & connectns...
his client's son Sri.Rahul, holding that he was not driving the
vehicle. He says that, therefore, it is now beyond doubt that it
was his client, who was driving the vehicle; and therefore,
that the Insurance Company could not have exonerated of
their liability to honour the compensation found in favour of
the claimants, since he was having a valid licence. He thus
prayed that, either this Court accept the additional document
and set aside the Awards to the extent to which they are
impugned; or, in the alternative, that matters be remanded to
the learned Tribunal for reconsideration of this issue.
3. Sri.P.Jacob Mathew - learned Standing Counsel
appearing for the Insurance Company in all these cases,
argued that the judgment of the Judicial Magistrate of First
Class - Neyyattinkara in C.C No.589/2005 would bear no
binding implication on the Tribunal because it is not bound by
the same. He argued that this has been well settled by
various judgments of this Court and that of the Honourable
Supreme Court; and hence prayed that these appeals be
dismissed. He added that his client does not admit to the
document now produced, since it will have to be tested
properly; and hence, that, if this Court is so inclined, then
they would not stand in the way of the remand of the Original
M.A.C.A Nos.2250 of 2013 & connectns...
Petitions being ordered for such purpose.
4. I notice that even though service of summons has
been completed on other respondents - who are the claimants
- they have chosen not to be present in person, or to be
represented through counsel, presumably because any order
that this Court may issue would not prejudice them.
5. I have considered the afore submissions and have
also gone through 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.
6. I see from the impugned Awards that, after
quantifying the compensation eligible to the claimants in each
of the Original Petitions, the learned Tribunal awarded liberty
to the Insurance Company to recover it from the appellant,
after paying to the claimants, on the ground that driver of the
vehicle at the time of the accident, namely, the appellant's
son - Sri.Rahul, did not have a valid licence.
7. However, it is relevant that, at the time when the
impugned Awards were issued, the judgment of the Judicial
Magistrate of First Class - Neyyattinkara in C.C No.589/2005,
had not been produced; and hence, the learned Tribunal did
M.A.C.A Nos.2250 of 2013 & connectns...
not have an occasion to read its contents, though there was
an assertion made by the appellant that his son had been
exonerated.
8. That said, though, as rightly argued by Sri.P.Jacob
Mathew, the findings of the Judicial Magistrate of First Class -
Neyyattinkara, may not be fully binding on the learned
Tribunal, it may have some impact, particularly if the
exoneration of the person alleged to be the driver was on
merits and if the finding was that he did not drive. In such
scenario, it is possible that the argument of the appellant,
that he was driving the vehicle, may find some probability,
which again, the learned Tribunal ought to have considered in
its proper perspective. I, therefore, am firm in my mind that
these appeals are deserving of being allowed to the extent
impugned; and that the Original Petitions will require to be
reconsidered by the learned Tribunal on this sole issue.
Resultantly, I allow these appeals and set aside the
impugned Awards to the extent to which it has granted liberty
to the Insurance Company to recover the compensation
adjudicated in favour of the claimants from the appellant;
with a consequential direction to reconsider this issue, after
affording necessary opportunities of leading additional/fresh
M.A.C.A Nos.2250 of 2013 & connectns...
evidence and of a further hearing to the Insurance Company,
the appellant and the alleged driver Sri.Rahul; thus
culminating in a fresh Award in this regard as expeditiously as
is possible, but not later than eight months from the receipt
of a copy of this judgment. For this purpose, the appellant,
Insurance Company and Sri.Rahul will appear before the
learned Tribunal at 11.00 AM on 13.04.2023.
I reiteratingly clarify that the claimants need not be
bothered with the proceedings after the remand, since they
would not be prejudiced by any of my observations and their
right to recover or to receive the amounts from the Insurance
Company is left intact.
Sd/- DEVAN RAMACHANDRAN,
JUDGE
lsn
M.A.C.A Nos.2250 of 2013 & connectns...
APPENDIX
PETITIONER'S ANNEXURE
ANNX.A: CERTIFIED COPY OF THE JUDGMENT DATED 26.09.2008
IN C.C.NO.589/2005 OF THE JUDICIAL FIRST CLASS
MAGISTRATE - I, NEYYATTINKARA.
ANNX.B: COPY OF THE NOTICE NO.D.11/6178/13 UNDER THE
REVENUE RECOVERY ACT DATED 07.10.2013.
ANNX.C: COPY OF THE NOTICE NO.D.11/6193/13 UNDER THE
REVENUE RECOVERY ACT DATED 07.10.2013.
ANNX.D: COPY OF THE NOTICE NO.D.11/6174/13 UNDER THE
REVENUE RECOVERY ACT DATED 07.10.2013.
RESPONDENTS EXHIBITS: NIL
TRUE COPY
P.A TO JUDGE
LSN
