Zeenath vs Visal M Nair
2024 Latest Caselaw 5010 Ker

Kerala High Court

Zeenath vs Visal M Nair on 15 February, 2024

Author: Mary Joseph

Bench: Mary Joseph

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
              THE HONOURABLE MRS. JUSTICE MARY JOSEPH
    THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
                       MACA NO. 2684 OF 2021
   AGAINST THE AWARD DATED 25.10.2018 IN O.P(M.V) NO.38/2013 OF
        ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-V, KOLLAM
APPELLANT/ADDITIONAL RESPONDENT NO.4:

           ZEENATH, W/O. NOUSHAD, AGED 54 YEARS,
           KULATHARAPUTHEN VEEDU, CHITHARA P.O, KADAKKAL,
           KOTTARAKKARA, NOW RESIDING AT THAMARASSERIL VEEDU,
           NATTETHARA, CHADAYAMANGALAM, KOLLAM 691 534
           BY ADVS.K.K.CHANDRALEKHA
                   SMT.ANUPAMA JOHNY
                   SMT.P.MAYA
                   SMT.K.S.SUDHA


RESPONDENTS/PETITIONERS & RESPONDENT NOS. 1 TO 3:

    1      VISAL M NAIR, S/O. MANOHARANA NAIR,
           AGED 38 YEARS, KOCHIYILETH VEEDU,
           KOZHIKODE MEKKUMURI,KARUNAGAPPALLY, AYANIVELIKULANGARA.
    2      SHIJIN V.R, S/O. REMANI C, SHEEJA BHAVANAM,
           LENIN KUNNU, BHARATHANNOOR.
    3      ACHAMMA VARGHESE, W/O.K.E GEEVARGHESE,
           KOCHUVEETTIL ANAS THAZHAKKARA, MAVELIKKARA.
    4      THE BRANCH MANAGER
           NEW INDIA ASSURANCE COMPANY LTD, KOTTARAKKARA.
           BY ADVS.R4 BY SRI.LAL K JOSEPH
                          SRI.SURESH SUKUMAR(K/634/1997)
                          SRI.ANZIL SALIM(K/000447/2018)


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 M.A.C.A.No.2684 of 2021

                                2



                            JUDGMENT

Dated this the 15th day of February, 2024

The appeal on hand is originated from an award

passed by Additional Motor Accident Claims Tribunal-V,

Kollam (for short 'the Tribunal') on 25.10.2018 in O.P.

(M.V) No.38/2013. The appellant is the additional 4 th

respondent before the Tribunal in the above Original

Petition, who was the registered owner of the motor

vehicle at the relevant time of the motor accident.

2. For the sake of convenience, the parties to this

appeal will hereinafter be referred to as the petitioner

and respondents 1 to 4 in accordance with their status

in the Original Petition.

3. The above Original Petition was filed seeking

compensation for the personal injuries sustained by one

Mr.Vishal M Nair, in a motor accident occurred at about

12.40 p.m on 29.12.2010. He was riding a Scooter

bearing Registration No.KL-2T-1967 through Prayar-

Sakthikulangara Puthiyayidom Temple road. A Maruti

car bearing Registration No.KL-04/J-9439 dashed the

Scooter ridden by him and thereby he sustained serious

injuries. The motor accident was allegedly occurred due

to the rash and negligent driving of the Maruti car by

the 1st respondent. 2nd respondent was the registered

owner of the Maruti car and the 3 rd respondent, it's

insurer at the relevant time. The appellant was

subsequently impleaded in the Original Petition for the

reason that the Certificate of Registration stands in her

name.

4. All respondents were served with notice. 1 st

and 2nd respondents did not turn up to contest the

Original Petition and therefore, declared as ex parte. 3rd

respondent filed written statement denying insurance

coverage for the Maruti car bearing Registration No.KL-

04/J-9439 as on date of the motor accident. It was

contended that the certificate of insurance stands in the

name of one Mrs.Zeenath who was the additional 4 th

respondent in the Original Petition and it was valid from

03.01.2011 till 02.01.2012. It was further contended

that for want of insurance coverage for the vehicle at

the relevant time of the motor accident, 3 rd respondent

is not liable to indemnify the insured of the vehicle.

5. Additional 4th respondent filed written

statement contending that she is not liable to

compensate the petitioner, that the compensation

claimed is excessive, that the motor accident was not

occurred as averred in the Original Petition, that the

vehicle bearing Registration No.KL-04/J-9439 was not

involved in the motor accident and that the vehicle was

already transferred by the additional 4 th respondent to

the 1st respondent.

6. Before the Tribunal, petitioner was examined

as PW1 and Exts.A1 to A9 were marked. On the basis of

the evidence on record, the Tribunal found that the

motor accident in question was occurred due to the rash

and negligent driving of the Maruti car bearing

Registration No.KL-04/J-9439 by its driver, who was

the 1st respondent in the Original Petition. The Tribunal

also found that the petitioner, in view of the injuries

sustained in the motor accident and for the sufferings

followed, is entitled to get compensation from the

respondents. Thus, Rs.2,16,778/- was arrived at as the

total compensation payable and the 1 st and the

additional 4th respondents were made jointly and

severally liable to pay the same with interest at the rate

of 9% per annum from the date of filing of the Original

Petition till the date of realisation alongwith

proportionate costs. Aggrieved thereby, the additional

4th respondent has approached this Court in the appeal

on hand.

7. It is contended by Adv.K.K.Chandralekha, the

learned counsel for the appellant that liability was

fastened by the Tribunal on the additional 4 th respondent

without any basis and therefore, interference with the

impugned award to the extent it fixes liability on the

appellant is highly warranted. According to the learned

counsel, in the Original Petition filed seeking

compensation, 2nd respondent was arrayed as the

registered owner of the Maruti car at the relevant time

of the motor accident and therefore, liability ought to

have been fixed on him to compensate the petitioner.

According to the learned counsel, additional 4 th

respondent was brought into the Original Petition as the

registered owner of the vehicle much later. It is urged

that the vehicle involved in the motor accident was

covered by a policy valid for a period from 03.01.2011

till 02.01.2012 and it stood in the name of one

Mrs.Zeenath. It is contended by the learned counsel that

an agreement for sale of the vehicle was executed by

additional 4th respondent, but that was not produced

before the Tribunal by the counsel entrusted by her, to

contest the case on her behalf. According to her, the

agreement for sale was not produced before the

Tribunal and marked in evidence and accordingly the 1 st

and the additional 4th respondents were made jointly

and severally liable to pay compensation, by the

Tribunal.

8. This Court has noticed from the evidence on

record that the respondents failed to adduce any

evidence before the Tribunal. According to the learned

counsel, opportunity was denied by the Tribunal to the

additional 4th respondent to adduce evidence. The

learned counsel canvassed for setting aside the award

and remanding the Original Petition to the Tribunal for

re-consideration and fixation of liability afresh.

9. This Court had a glance at the records of the

Original Petition made available. As per the proceedings

of the Tribunal, after getting the additional 4 th

respondent impleaded into the Original Petition and

upon closure of the evidence of the petitioner, the

Original Petition was posted for evidence of the

additional 4th respondent. On the day scheduled,

additional 4th respondent did not turn up to adduce any

evidence, but was represented. Thereafter, further

opportunity for adducing evidence was not sought for by

the counsel representing her. It is found from the

proceedings followed that, the Original Petition was

posted for hearing to several occasions, but additional

4th respondent failed to seek for a further opportunity to

adduce evidence. Therefore, though the relevant

documents evidencing the transfer of the vehicle in

favour of some other person were contended as

produced by additional 4th respondent before the

Tribunal, nothing of that sort are available in the records

of the case. Therefore it can only be taken for granted

that the additional 4th respondent failed to adduce any

evidence to establish the contention taken that the

offending vehicle has been transferred by her in favour

of some other person. Since the transfer of the

offending vehicle was not established by the additional

4th respondent, being the registered owner of the

offending vehicle at the relevant time of the motor

accident, she alone will be liable to pay the sum arrived

at by the Tribunal as the compensation, in favour of the

petitioner. There is every justification for the Tribunal in

fixing the liability to pay compensation on the additional

4th respondent.

Appeal fails for the reasons and is dismissed.

Sd/-

MARY JOSEPH JUDGE NAB