Kerala High Court
The Divisional Manager vs P.G.Mohanan Potty on 20 May, 2024
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
MACA NO. 1158 OF 2014
AGAINST THE AWARD DATED 27.09.2012 IN OP(MV) NO.1988 OF 2004 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM
APPELLANT/2ND RESPONDENT:
THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE COMPANY LTD,
TC 42/82, II FLOOR, GOVT PRESS ROAD,
THIRUVANANTHAPURAM.
BY ADVS.SRI.LAL K.JOSEPH
RESPONDENTS/CLAIMANT AND RESPONDENT NO.1
1 P.G.MOHANAN POTTY
S/O.P.R.GOPALAKRISHNA POTTI, LEKSHMI NILAYAM,
KALIKULANGARA, CHERTHALA P.O., ALEPPEY NOW RESIDING AT
TC 20/3162, DB STREET, KARAMANA,
THIRUVANANTHAPURAM-695010
2 E.SETHUMADHAVAN,
KPV/253-D, KUDAPPANAKUNNU P.O.,
THIRUVANANTHAPURAM-695009
R2 BY ADVS.SRI.M.R.ANANDAKUTTAN
SRI.MAHESH ANANDAKUTTAN
SMT.M.J.SAJITHA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 27.02.2024, THE COURT ON 20.05.2024 DELIVERED THE
FOLLOWING:
M.A.C.A.No.1158 of 2014
2
JUDGMENT
Dated this the 20th day of May, 2024
The appeal on hand is originated from an award passed
by Motor Accidents Claims Tribunal, Thiruvananthapuram (for
short 'the Tribunal') on 27.09.2012 in OP(MV) No.1988/2004.
The appellant is the insurer of the offending vehicle involved in
the motor accident and was also the 2nd respondent in the
above Original Petition. Originally the Original Petition was
filed under Section 166 of the Motor Vehicles Act, 1988 (for
short 'the M.V.Act'). But later, it was amended as if it was one
preferred under Section 163 A of the MV Act.
2. A brief narration of the facts involved is made
hereunder:-
At about 6:00 a.m. on 27.05.2004 while the petitioner
was travelling on the pillion seat of a Kinetic Honda motorcycle
bearing Registration No.KL-01-F-4441 along Nedumangad-
Palode public road, due to careless and negligent turning of
the vehicle by it's rider towards right side, the petitioner was
thrown on the road and thereby sustained grievous injuries.
Raising a claim for `1,50,000/- as compensation against the
owner-cum rider of the motorcycle and it's insurer arrayed as
respondents 1 and 2, the above Original Petition was filed.
3. Respondents were served with notice from the
Tribunal. 1st respondent entered appearance and filed written
statement. Admittedly he was the registered owner of the
motorcycle bearing Registration No.KL-01-F-4441, but it's
ownership was transferred to one Mr.Madhavan Namboothiri,
son of Kesavan Embranthiri through an exchange scheme
offered by Century Connections, Ayurveda College,
Thiruvananthapuram. But in the enquiry held later, it was
revealed that the vehicular records were not transferred to his
name and the authorities informed. The Original Petition is
contended as bad for non-joinder of the transferee as a
necessary party. It was contended further that if any liability
arose after 06.06.2003 Madhavan Namboothiri being the
registered owner, alone will be responsible for that.
Admittedly the vehicle was insured with the 2 nd respondent
covering the date of the motor accident. Compensation claimed
was also contended as excessive and devoid of any basis.
4. 2nd respondent in the written statement filed also
took up contentions to the effect that the motorcycle bearing
Registration No.KL-01-F-4441 involved in the motor accident
was insured at the relevant time, but the the policy issued
was an Act only one. According to them the victim of the
motor accident being a pillion rider and the policy being an Act
only one, his risk will not be covered and they are entitled to
get exoneration from liability to indemnify the 1 st respondent.
Claims raised regarding the age, the occupation, the monthly
income, and the nature of injuries sustained by the petitioner
were disputed. Compensation claimed was also disputed for
being exorbitant.
5. Before the Tribunal Exts.A1 to A11 were marked by
the petitioner in evidence. On appreciation of the evidence,
the Tribunal found that the motor accident in question was
occurred due to the involvement of a motorcycle bearing
Registration No.KL-01-F-4441. The Tribunal also found that
the petitioner had sustained injuries in the motor accident and
therefore is entitled to get compensation from the
respondents. A sum of `54,013/- was arrived at as the
compensation payable. 2 nd respondent was directed to pay it
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.
6. The learned counsel urged that the Tribunal ought
not to have fixed liability on the 2 nd respondent to pay the
compensation, since the policy issued in respect of the
offending vehicle was an Act only one. According to him the
certified copy of the policy was produced but it was omitted to
be marked in evidence by the Tribunal. According to him, the
Tribunal has stated in paragraph 19 of the award under
challenge that the policy was not produced for verification.
Accordingly the Tribunal found that the vehicle involved in the
motor accident was validly insured with the 2 nd respondent and
thereby fastened it with liability to indemnify the 1 st
respondent.
7. Trial court records available were examined and a
certified copy of the policy was obtained. From the appendix
of the impugned award it came to the notice of this Court that
it was not marked in evidence. Indisputably, it is an Act only
policy.
8. Since the certified copy of the policy was found with
the records of the case and it's non marking in evidence can
only be taken as an inadvertant omission, interest of justice
demands it's marking now in evidence and re-fixation of
liability on it's basis. In the above circumstances, the certified
copy of the policy found alongwith the records of the case is
marked in evidence as Ext.B1.
9. A perusal of Ext.B1 would reveal that it is a liability
only policy having coverage only for the risk of third parties
who sustained injuries with the involvement of the vehicle
insured.
10. The learned counsel for the appellant has relied on
Oriental Insurance Co.Ltd. V. Sudhakaran K.V. & Others
[2008 (2) KHC 697], where the Apex Court has held that
pillion rider in a two wheeler, is not to be treated as a third
party when the accident has taken place owing to rash and
negligent riding of a scooter. It is contended by the learned
counsel on the basis of the dictum that the injured being a
pillion rider on a two wheeler, is not a third party and
therefore, not covered by the policy.
11. As rightly pointed out by the learned counsel for the
appellant, Ext.B1 though was issued in respect of the
offending vehicle and the date of the motor accident in
question being covered, the risk of the petitioner as a pillion
rider, is not covered.
12. Thus, the finding of the Tribunal that the 2 nd
respondent is liable to indemnify the insured is reversed and
liability is fixed on the 1st respondent to pay the compensation
stood arrived at in favour of the petitioner.
13. It was argued by the learned counsel on behalf of
the 1st respondent that the vehicle involved in the motor
accident has already been transferred by him in favour of one
Mr.Madhavan Namboothiri and therefore the latter was it's
owner at the relevant time. According to her, contentions
were also taken in the written statement filed in that regard,
as well as non-joinder of necessary parties. According to her,
documents with reference to the transfer were also produced
before the Tribunal. It is noticed that despite the contention
taken in that regard and production of documents with a view
to establish it, those were omitted to be marked by the
Tribunal. According to her the Tribunal even declined the
opportunity to adduce evidence and thereby those could not be
marked.
14. True that a specific contention regarding transfer
of the vehicle in favour of Mr.Madhavan Namboothiri was taken
in the written statement filed by the 1 st respondent. Some
documents were also seen produced before the Tribunal, but,
those were not marked in evidence. Proceedings paper of the
Original Petition was examined to see whether the Tribunal is
unjustified in declining the 1st respondent with opportunity to
adduce evidence, and it is found that the Tribunal was not at
fault, but the 1st respondent was, since he failed to make use
any of the several postings granted by the Tribunal for the
purpose. The Original Petition was found posted for hearing
after a long gap, but the 1st respondent did not even file an
application in the meantime to get the evidence closed, re-
opened for marking the documents. Therefore, the contention
of the 1st respondent that opportunity was declined to him to
adduce evidence is devoid of any merits. He only failed to
make use of the opportunity. This is a clear case of laches and
negligence on the part of the 1 st respondent in prosecuting the
Original Petition. It is in that context, the Tribunal found on the
basis of the available materials that the registered owner of
the vehicle as on date of the motor accident, the 1 st
respondent in the Original Petition is liable to pay the
compensation to the petitioner. This Court finds no reason to
interfere with. Moreover, arguments as above were advanced
by the 1st respondent in the appeal filed by the 2nd respondent.
1st respondent has not raised a challenge by filing an appeal
independently against the award.
15. Appeal succeeds for the reasons and is allowed. The
impugned award to the extent it fixes the liability upon the 2 nd
respondent to indemnify the insured is set aside. 1 st
respondent being the registered owner cum rider of the
motorcycle involved in the motor accident is fastened with
liability to compensate the petitioner. 1 st respondent shall pay
the compensation stood awarded by the Tribunal alongwith
interest fixed by it at the rate of 9% per annum, from the date
of filing of the Original Petition till the date of realisation and
proportionate costs to the petitioner.
Sd/-
MARY JOSEPH
JUDGE
MJL
APPENDIX
APPELLANT'S EXHIBITS:
EXT.B1 : CERTIFIED COPY OF THE
POLICY
RESPONDENTS' EXHIBITS : NIL
/TRUE COPY/
PA TO JUDGE
