Kerala High Court
Mahindra And Mahindra Financial ... vs V.K.Narayanan @ Kuttan (*Deleted) on 5 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 5TH DAY OF JUNE 2024 / 15TH JYAISHTA, 1946
MACA NO. 58 OF 2011
AGAINST THE AWARD DATED 25.02.2010 IN OPMV NO.367 OF 2007 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA
APPELLANT/RESPONDENTS 4 & 5:
1 MAHINDRA AND MAHINDRA FINANCIAL SERVICES
LIMITED, KANNAMPURAM BUILIDNGS, PULIMOOD
JUNCTION, MC ROAD, KOTTAYAM, REP.BY ITS
POWER OF ATTORNEY HOLDER, VINOD VIJAYAN
2 RAJESH G
S/O.GOPALAKRISHNAN NAIR, SREE NILAYAM,
NEAR NIRMALA COLLEGE, MUVATTUPUZHA
BY ADV SRI.DEVAPRASANTH.P.J.
RESPONDENTS/PETITIONER/RESPONDENTS 1,2,3 & 6:
1 V.K.NARAYANAN @ KUTTAN (*DELETED)
S/O.LATE KUTTAPPAN, MATTATHIL HOUSE,
KARINILAM P.O.,MUNDAKKAYAM, KOTTAYAM
DIST-PIN-686509
2 JACOB THOMAS
KARIKKATTUPARAMBIL HOUSE, ANAKKAL
P.O., KANJIRAPPALLY, KOTTAYAM DIST
PIN-686507
3 THE UNITED INDIA INSURANCE CO-LTD
BRANCH OFFICE, PONKUNNAM P.O.,
KOTTAYAM DIST-PIN-686506
4 MONESH, S/O.MOHANDAS
KOLLAMPARAMBIL HOUSE, CHEERAMCHIRA
P.O., CHANGANACHERRY INDUSTRIAL NAGAR,
PIN-686106
5 SHIHABKHAN(*DELETED)
S/O.ABDULKASIM ,PUTHUPARAMBIL HOUSE,
MACA No.58 of 2011 2
KURISSUMMOODU BHAGAM, VELLOOR KARA,
CHETHIPPUZHA, KOTTAYAM
DIST-PIN-686575(*RESPONDENTS 1 AND 5
DELETED FROM THE PARTY ARRAY AS PER
ORDER DATED 11.12.2023 IN IA 1/2023 IN
MACA 58/2011)
BY ADVS.
SANTHOSH MATHEW
ARUN THOMAS
ABI BENNY AREECKAL
KURIAN ANTONY MATHEW
KARTHIK RAJAGOPAL
MATHEW NEVIN THOMAS
ANIL SEBASTIAN PULICKEL
A.A.MOHAMMED NAZIR
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
05.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No.58 of 2011 3
JUDGMENT
This appeal is at the instance of respondents 4 and 5 in OP(MV)
No.367 of 2007 on the file of Motor Accidents Claims Tribunal, Pala,
challenging recovery of compensation ordered against them.
2. On 03.09.2006 at 9.15 a.m, the claimant in OP(MV) No.367 of
2007 met with a road traffic accident while travelling in an
autorickshaw. KL-5/M-5484 car driven by one Mr.Monesh (R3 in the
OP), in a rash and negligent manner, hit on the autorickshaw and the
claimant sustained injuries. He approached the Tribunal claiming
compensation, and the Tribunal allowed his claim directing the
2nd respondent/insurer to deposit the compensation amount initially,
and to recover the same from respondents 4 and 5, who were the
financier of that car and its employee. Aggrieved by the recovery
ordered against them, R4 and R5 have come up with this appeal.
3. In the OP(MV), 1st respondent was the registered owner of
KL-5/M-5484 car and the 2nd respondent was its insurer. Additional 3rd
respondent was the driver of the car at the time of accident.
Additional 4th respondent was the financier of that car and additional
respondents 5 and 6 were said to be the employees of the financier.
4. 2nd respondent/insurer of the car filed written statement
before the Tribunal admitting the policy of the car. But, according to
them, they had no liability to indemnify the insured, as the accident
was not due to any negligence from the part of the driver of the car.
According to them, under the instructions of R4 financier, R5 and R6
seized the vehicle for defaulting instalments due to the financier, and
the 3rd respondent was engaged as driver by the financier, to take that
vehicle forcibly. 3rd respondent-driver sped away that car and even
refused to stop it when asked by Police. In his attempt to escape, the
car knocked down a policeman, and hit two other vehicles also
including the autorickshaw in which the claimant was travelling.
5. A criminal case was registered against the driver of the car
under Section 307 of IPC for attempting to kill the policeman.
Moreover, a case was registered against him for committing theft of
the car. So, the definite case of the insurer was that, though the car
was having valid insurance policy at the time of accident, they had no
liability to compensate the claimant, as the accident was not due to
any negligence from the part of the driver, but it was deliberate.
6. Learned Tribunal while awarding compensation to the claimant
fixed the initial burden to compensate the claimant on the insurer, as
the vehicle was having valid insurance coverage as on the date of
accident. But, the insurer was given liberty to recover that amount
from respondents 3 to 6, as the accident occurred due to their
wrongful act.
7. Now this Court is called upon to find out whether there is any
illegality, irregularity or impropriety in the impugned Award by which
recovery right was given to the insurer, to recover the amount from
respondents 3 to 6.
8. Heard learned counsel for the appellants, learned counsel for
the 2nd respondent/registered owner, and learned counsel for the 3rd
respondent/insurer.
9. While appreciating the evidence of RWs 1 to 3, learned
Tribunal found that a complaint was lodged by father of one Mr.Lalu
Jose before Police, alleging theft of KL-5/M-5484 car. RW3, the Circle
Inspector of Police, deposed that, a complaint was received alleging
theft of KL-5/M-5484 car, and another crime was registered when that
car knocked down a policeman in an attempt to kill him.
10. Learned counsel for the 2nd respondent/registered owner
would submit that, he had already transferred that vehicle, but in the
registration certificate, his name was not changed. RW1 also deposed
before court that, KL-5/M-5484 car dashed against two vehicles when
it was taken away by the 4th respondent (3rd respondent in the
OP(MV)). 4th respondent was not the driver engaged by the 2nd
respondent/ registered owner. Testimony of RWs 1 to 3 is
corroborating the contentions taken up by the insurer in their written
statement. Admittedly, 1st appellant was the financier of the offending
car. The testimony of RWs 1 to 3 amply proves that, the accident
occurred while that vehicle was seized by the financier, using its
employees. There is nothing to show that, the said accident occurred
due to any rash and negligent driving by any driver engaged by the
owner. 4th respondent was the driver engaged by the financier as
borne out from the records and evidence adduced before the Tribunal.
So, this Court finds no illegality or impropriety in the award of the
Tribunal, reserving right for the insurer, to recover the compensation
amount, from respondents 3 to 6, the financier and its employees.
Learned counsel for the 3rd respondent/insurer pointed out that,
other two claim petitions were also there before MACT, Pala which
arose out of the same accident, and those petitioners also were
passengers in the very same autorickshaw, along with the claimant in
OP(MV) No.367 of 2007. The other two OPs were OP(MV) No.369 of
2007 and 370 of 2007. In those petitions also, award was passed by
the Tribunal fixing initial burden on the insurer to compensate the
claimants, reserving their right to recover that amount from
respondents 3 to 6. No appeal was preferred by the financier or its
employees against recovery ordered against them in OP(MV) Nos.369
and 370 of 2007. So, learned counsel for the insurer would submit
that, the said finding has become final, and so much so there cannot
be any exemption for the financier or its employees from making the
compensation paid by the insurer, to the claimant in OP(MV) No.367 of
2007. For that reason also, this Court is of the view that there is no
merit in this appeal and hence the appeal is liable to be dismissed.
In the result, the appeal is dismissed. No order as to costs.
Sd/-
SOPHY THOMAS
JUDGE
smp
