Kerala High Court
Future Generali India Insurance ... vs Sunitha Sunil 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. 3991 OF 2018
AGAINST THE AWARD DATED 29.05.2018 IN O.P(M.V)NO.575 OF 2015 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR
NAME AND ADDRESS OF THE APPELLANTS/CLAIMANTS:
1 SULEIKHA, AGED 49 YEARS, D/O.HASSAN,
PUTHENPURAYIL HOUSE, KADAMBETHMOOLA, KARIMUGAL P.O.,
PUTHENCRUZ VILLAGE, PIN-682 303.
2 SHEREEF, AGED 30 YEARS, S/O.AMEERJAN,
PUTHENPURAYIL HOUSE, KADAMBETHMOOLA, KARIMUGAL P.O.,
PUTHENCRUZ VILLAGE, PIN-682 303.
3 SHANU, AGED 28 YEARS, S/O.AMEERJAN,
PUTHENPURAYIL HOUSE, KADAMBETHMOOLA, KARIMUGAL P.O.,
PUTHENCRUZ VILLAGE, PIN-682 303.
BY ADV. SMT.AMRIN FATHIMA
NAME AND ADDRESS OF THE RESPONDENTS/RESPONDENTS:
*1 ARUNKUMAR ( DELETED )
S/O.SURENDRAN, VATTITTUPARAMBU HOUSE, KEDAMANGALAM,
NORTH PARAVOOR, PIN-683 513.
*2 ABRAHAM K OOMEN, (DELETED)
S/O.OOMEN, 18/447, KADOOPARAMBIL, THRIPUNNITHURA,
PIN-686613.
3 FUTURE GENERALI INDIA INSURANCE COMPANY LIMITED
1ST FLOOR, MUSCAT TOWERS, DOOR NO.28/3318-B1, S.A.ROAD,
KADAVANTHARA, COCHIN, PIN-682 020.
*4 AMEERJAN, (DELETED)
S/O.MOIDEEN, C/O.BEEVI, PUTHUSSARYKUDIYIL HOUSE,
ENANALLOR P.O., PUNNAMATTOM, MUVATTUPUZHA,PIN-686673.
*(RESPONDENT NOS. 1,2 AND 4 ARE DELETED FROM THE PARTY
ARRAY AT THE RISK OF APPELLANT, AS PER ORDER DATED
20/06/2019 IN IA NO.1/2019 IN MACA 3991/2018.)
R3 BY ADV.SRI.THOMAS M.JACOB
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 20.05.2024, ALONG WITH MACA NOS.1356/2019 AND 1598/2019 THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
2
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. 1356 OF 2019
AGAINST THE AWARD DATED 29.05.2018 IN O.P(M.V) NO.550 OF
2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR
APPELLANT/3RD RESPONDENT IN OP(MV):
FUTURE GENERALI INDIA INSURANCE COMPANY LIMITED,
A COMPANY INCORPORATED UNDER THE COMPANIES ACT,
HAVING ITS REGISTERED OFFICE AT INDIA BULLS
FINANCE CENTRE, TOWER 3, 6TH FLOOR, SENAPATI BAPAT
MARG, ELPHINSTONE (W), MUMBAI, PIN-400013 AND
REGIONAL OFFICE AT 3RD FLOOR, CENTRAL WAREHOUSING
CORPORATION BUILDING, MAVELI ROAD, KADAVANTHARA,
KOCHI, PIN-682020,
REPRESENTED BY ITS ASSISTANT MANAGER-LEGAL,
ALICE JOHN, AGED 40 YEARS, W/O.RONIO BABU.
BY ADV.SRI.THOMAS M.JACOB
RESPONDENTS/PETITIONERS AND 1ST AND 2ND RESPONDENTS IN
OP(MV):
1 SUNITHA SUNIL,AGED ABOUT 42 YEARS,
W/O.LATE SUNIL, PALIATHPARAMBU, PONNARIMANGALAM,
MULAVUKAD VILLAGE, ERNAKULAM, PIN-682 504.
2 PARVATHY, AGED ABOUT 18 YEARS,
D/O.LATE SUNIL, PALIATHPARAMBU, PONNARIMANGALAM,
MULAVUKAD VILLAGE, ERNAKULAM, PIN-682 504.
3 ARUNKUMAR, AGE NOT KNOWN, S/O.SURENDRAN,
VATTITTUPARAMBU HOUSE, KEDAMANGALAM,
NORTH PARAVOOR, PIN-683513.
4 ABRAHAM K.OOMMEN, AGE NOT KNOWN, S/O.OOMMEN,
18/447, KADOOPARAMBIL, THRIPUNITHURA, PIN-686613.
BY ADVS.SMT.AMRIN FATHIMA
SRI.PETER THARAKAN
SRI.FRANCIS PETER THARAKAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 20.05.2024, ALONG WITH MACA NOS.3991/2018 AND
1598/2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
3
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. 1598 OF 2019
AGAINST THE AWARD DATED 29.05.2018 IN O.P(M.V) NO.575 OF
2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NORTH PARAVUR
APPELLANT/3RD RESPONDENT IN OP(MV):
FUTURE GENERALI INDIA INSURANCE COMPANY LIMITED
A COMPANY INCORPORATED UNDER THE COMPANIES ACT,
HAVING ITS REGISTERED OFFICE AT INDIA BULLS
FINANCE CENTRE, TOWER 3, 6TH FLOOR, SENAPATI
BAPT MARG, ELPHINSTONE (W), MUMBAI, PIN - 400013
AND REGIONAL OFFICE AT 3RD FLOOR, CENTRAL
WAREHOUSING CORPORATION BUILDING, MAVELI ROAD,
KADVANTHARA, KOCHI, PIN - 682020,
REPRESENTED BY ITS ASSISTANT MANAGER-LEGAL,
ALICE JOHN, AGED 40 YEARS, W/O.RONIO BABU
BY ADV THOMAS M.JACOB
RESPONDENTS/PETITIONERS AND 1ST, 2ND AND 3RD RESPONDENTS
IN OP(MV):
1 SULAIKHA, AGED ABOUT 50 YEARS,
D/O. HASSAN, PUTHENPURAYIL HOUSE,
KADAMBETHMOOLA, KARIMUGAL P. O.,
PUTHENCURIZ VILLAGE, PIN - 682303
2 SHEREEF, AGED 31 YEARS, S/O. AMEERJAN,
RESIDING AT PUTHENPURAYIL HOUSE, KADAMBETHMOOLA,
KARIMUGAL P.O., PUTHENCURIZ VILLAGE,
PIN - 682303
3 SHANU, AGED 29 YEARS, S/O.AMEERJAN,
RESIDING AT PUTHENPURAYIL HOUSE, KADAMBETHMOOLA,
KARIMUGAL P.O., PUTHENCURIZ VILLAGE,
PIN - 682303
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
4
4 ARUNKUMAR, AGE NOT KNOWN, S/O. SURENDRAN,
VATTITTUPARAMBU HOUSE, KEDAMANGALAM,
NORTH PARAVOOR, PIN - 683513
5 ABRAHAM K. OOMMEN, AGE NOT KNOWN,
S/O.OOMMEN, 18/447, KADOOPARAMBIL,
THRIPUNITHURA, PIN - 686613
6 AMEERJAN, AGED NOT KNOW, S/O. MOIDEEN,
C/O. BEEVI, PUTHUSSARYKUDIYIL HOUSE,
ENANALLOOR P.O., PUNNAMATTOM, MUVATTUPUZHA,
PIN - 686 673
BY ADV R1, R2, R3 BY SMT.AMRIN FATHIMA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 20.05.2024, ALONG WITH MACA NOS.3991/2018 AND
1356/2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
5
JUDGMENT
Dated this the 20th day of May, 2024
All these appeals are originated from an award
passed by Motor Accidents Claims Tribunal, North Paravur
(for short 'the Tribunal') in O.P(M.V) Nos.575/2015 and
550/2015 respectively. The award has been passed on
29.05.2018.
2. Claims have been raised seeking compensation
by the rider as well as the pillion rider of a motorcycle
bearing registration No.KL 39C 2687 against the driver,
the owner and the insurer of a container lorry bearing
registration No.KL 36B 3009. MACA Nos.1356/2019 and
1598/2019 have been filed by the 3rd respondent before
the Tribunal in O.P(M.V.) Nos.550/2015 and 575/2015
challenging the liability fixed on the driver of the container
lorry bearing registration No.KL 36B 3009 and
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
consequently on the insurer, to indemnify the insured for
the compensation arrived at as payable. M.A.C.A
No.3991/2018 was filed challenging the quantum of
compensation stood awarded by the Tribunal in favour of
the petitioners in O.P(M.V.) No.575/2015. O.P(M.V)
No.575/2015 was filed by the legal representatives of the
rider of the motorcycle who died in the motor accident in
question.
3. The facts of the case in brief are narrated
hereunder:
On 16.05.2015 at about 11 p.m one Mr.Sheffin was
riding a motorcycle bearing registration No.KL 39 C 2687
along Seaport-Airport road with one Ms.Shreya as pillion
rider, it hit on the back of a container lorry bearing
registration No.KL 36B 3009 which was parked on the side
of the road in violation of the traffic rules and regulations.
Both of them sustained serious injuries in the motor
accident and succumbed to those at the accident spot
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
itself. Claiming compensation for the death of the rider as
well as the pillion rider in the motor accident the legal
representatives of each of them have approached the
Tribunal. The driver, the owner and the insurer of the
container lorry were arrayed as respondents in the
Original Petitions seeking compensation.
4. All respondents were served with notice from
the Tribunal but respondent No.1 in both Original Petitions
and respondent No.4 in O.P(M.V) No.575/2015 remained
absent and therefore, were declared as ex parte.
Respondents 2 and 3 entered appearance and filed
written statements before the Tribunal. Separate written
statements were filed by the 2nd respondent in both the
Original Petitions. It was contended that the claim petition
is not maintainable either in law or on facts, that the
monthly income claimed by the petitioners are incorrect,
that the motor accident was occurred solely due to the
negligence of the rider of the motorcycle, that negligence
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
cannot be attributed to the driver of the container lorry
who was arrayed as the 1st respondent, since it was
parked on the side of the road, that the rider of the
motorcycle had ridden it without holding a driving licence
at the relevant time and that the compensation claimed
under various heads is excessive and without any basis.
2nd respondent also sought for dismissal of the Original
Petitions for the reasons.
5. The 3rd respondent has filed written statement
in both the Original Petitions raising contentions that the
claim petitions are not maintainable either in law or on
facts, that the Original Petitions are bad for non joinder of
necessary parties since the owner as well as the insurer of
the motorcycle were not arrayed as respondents in the
Original Petitions, that the motor accident was occurred
not due to the negligence of the 1 st respondent, that it
was occurred solely due to the negligence of the rider of
the motorcycle, that the time of accident, the age, the
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
income and the occupation of the deceased as pleaded in
the Original Petitions are incorrect, that the compensation
claimed under various heads is excessive and without any
basis. Thus the 3rd respondent also sought for dismissal of
the Original Petitions seeking compensation.
6. Before the Tribunal, evidence was adduced in
O.P(M.V) No.575/2015 as the leading case and it consists
of Exts.A1 to A12 marked on the side of the petitioners
and Exts.B1 and B2, on the side of the respondents. The
Tribunal found after dealing with the issues raised that the
1st respondent, who was the driver of container lorry at
the relevant time was responsible for causing the motor
accident. The Tribunal has also arrived at the
compensation payable in favour of the petitioners in both
the Original Petitions and directed the insurer of the
container lorry, who was arrayed as the 3rd respondent to
indemnify the insured. Aggrieved by the awards passed in
both the Original Petitions, the 3 rd respondent has
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
approached this Court challenging the liability fixed on it
and the petitioners in O.P(M.V) No.575/2015, challenging
the quantum of compensation stood awarded by the
Tribunal in their favour.
7. The primary argument advanced by Sri.Thomas
M Jacob, the learned counsel for the appellant in
M.A.C.A.Nos.1356/2019 and 1598/2019 was that the time
and place of occurrence pleaded by the petitioners in the
Original Petitions on hand differ from the time and place of
occurrence mentioned in the final report laid by the police,
marked in evidence before the Tribunal as Ext.A3.
According to him, in Ext.A3, after holding an elaborate
investigation, the investigating officer in the crime
registered with reference to the motor accident has found
the rider of the motorcycle rash and negligent in riding
and for the reason of his death in the motor accident, an
abated chargesheet was laid before the court. According to
him the driver of the container lorry was not found by the
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
investigating officer rash and negligent and responsible for
causing the motor accident. The learned counsel has
invited the attention of this Court, to Exts.A2 and A3, the
scene mahazar and the final report respectively to contend
that the container lorry though pleaded by the petitioners
as parked in a wrong place against the traffic rules, it is
revealed from the description in the documents referred
that the container lorry was parked on the mud portion of
the road having a width of 8 meters. According to him,
the accident spot was not located as 'Poojari valavu' in the
final report but, in between 'Poojari valavu' and 'Thoshiba'.
It is clear from Exts.A2 and A3 that the place where the
container lorry was parked at the relevant time was mud
portion of the road. However, the Tribunal overlooked the
description of the place in Exts.A2 and A3 and observed
that 'Poojari valavu' is a notorious place for drivers.
Accordingly negligence was fixed on the driver of the
container lorry for parking it at the curve. The Tribunal has
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
arrived at the findings by taking judicial notice, which it
ought not to have been done.
8. The learned counsel for the respondents
/claimants has contended that the Tribunal was correct in
finding negligence on the part of the driver of the
container lorry and interference is unwarranted.
According to her, from the description of the place of
occurrence in Ext.A2 itself, it can be seen that curves are
there 100 meters each, ahead and backwards the place of
occurrence. The learned counsel tried to convince this
Court that the driver of the container lorry ought not to
have parked it at a curve namely 'Poojari valavu' in
violation of the traffic rules and regulations and the
Tribunal is justified in finding negligence on his part.
Accordingly she canvassed for maintaining the finding of
negligence on the part of the driver of the container lorry
in both the Original Petitions and fastening of liability
consequently on the insurer of the container lorry.
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
9. It is obligatory on the part of the Tribunal to
arrive at a finding of guilt of the driver of a vehicle on the
basis of the evidence available for it. True that the scene
mahazar as well as the final report were marked in
evidence from the side of the petitioners as Exts.A2 and
A3. The petitioners did not adduce any evidence before
the Tribunal to establish their pleadings in the Original
Petitions that the driver of the container lorry was
responsible for the motor accident by his rash and
negligent driving. As already stated, Exts.A2 and A3, the
scene mahazar and the final report respectively were
marked in evidence from the side of the petitioners and
those speak against their pleadings in the Original
Petitions regarding negligence of the driver of the
container lorry. The Tribunal in total disregard of those
documents took judicial notice in the matter and stated in
the impugned award that the motor accident in question
was occurred at 'Poojari valavu' which is a notorious place
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
for drivers of vehicles passing through and the container
lorry being parked at that curve, the driver of the lorry
was negligent and responsible for causing the motor
accident. Consequently liability was also fastened by it on
the insurer of the container lorry to indemnify the insured.
10. The rider of the motorcycle was chargesheeted
for rash and negligent riding but due to his death in the
motor accident, an abated chargesheet was laid by the
investigating officer in Crime No.3943/2015, and that is
Ext.A3. Challenge having not been raised against the
allegations in Ext.A3 by the petitioners before any
authority immediately after it was laid before the court,
negligence can only be found against the rider of the
motorcycle himself, for whose death in the motor
accident, O.P(M.V) No.575/2015 was filed by his legal
representatives seeking compensation. The Tribunal
undoubtedly went wrong in finding negligence on the part
of the driver of the container lorry without any basis. The
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
Tribunal is not supposed to take judicial notice on various
extraneous aspects to arrive at a finding of negligence in a
motor accident. The Tribunal ought to have appreciated
the evidence adduced by the parties. In the case on
hand, the Tribunal found the driver of the container lorry
responsible for causing the motor accident, totally denying
the documentary evidence, which speak otherwise.
Therefore, the finding of negligence on the part of the
driver of the container lorry and fastening of liability
consequently upon the insurer of that vehicle is only to be
reversed and this Court do so. For the reasons
aforestated, M.A.C.A No.1598/2019 filed by the insurer of
container lorry is only to be allowed.
11. O.P(M.V) No.550/2015 was filed by the legal
representatives of Ms.Shreya who was traveling on the
pillion seat of the motorcycle and died due to the injuries
sustained in the motor accident in question. The finding
arrived at as above is also applicable to the said case. If
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
the owner and the insurer of the motorcycle were arrayed
in O.P(M.V) No.550/2015 as respondents, it could have
been maintained and an award could have been passed in
favour of the petitioners. But petitioners failed to bring
them in the array of the respondents. Not even a claim
for compensation was raised against them, despite the
contention taken by the insurer in the written statement
filed that the Original Petitions are bad for non joinder of
necessary parties. In the above circumstances,
M.A.C.A.No.1356/2019 is liable to be allowed and
O.P(M.V) No.550/2015 is liable to be dismissed.
12. In view of the reversal of the finding of
negligence on the part of the driver of the container lorry
in MACA Nos.1598/2019 and 1356/2019, M.A.C.A
No.3991/2018 is also liable to be dismissed.
13. In the result, M.A.C.A Nos.1356/2019 and
1598/2019 are allowed and M.A.C.A No.3991/2018 is
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
dismissed.
14. It is clarified that the petitioners in both the
Original Petitions are entitled to get compensation under
Section 140 of the Motor Vehicles Act, 1988 (for short 'the
MV Act'), it being awarded on the basis of no fault liability.
Therefore `50,000/- stood awarded by the Tribunal in
favour of the petitioners in O.P(M.V) Nos.550/2015 and
575/2015 is maintained.
15. The Original Petitions referred to above have
been filed under Section 166 MV Act. In both cases the
victims died in the motor accident and legal
representatives raised claims for compensation. The
Original Petitions if had filed under Section 163A MV Act,
compensation would have been obtained by them. For
laches of the counsel representing them in the claim
petitions, filed before the Tribunal, the party would not be
made to suffer, since the claims being for compensation in
cases where the victims died in the motor accident. The
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
motor accident in question has been occurred in the year
2015, when limitation period for filing claim petitions was
taken away from the MV Act. Therefore, this Court finds it
expedient in the interest of justice to grant liberty to the
parties in both the Original Petitions to prefer applications
under Section 163A MV Act before the Tribunal.
16. The learned counsel for the appellants in
M.A.C.A No.3991/2018 placed reliance on Hemlata and
Others v. Vipin Kumar and Others [2014 KHC 5586
(Delhi High Court)] wherein it was held that conversion
of claim petition filed under Section 166 MV Act to that
under Section 163A MV Act is impermissible after
dismissal of the claim petitions filed by the petitioners
under Section 166 MV Act. But the claim petition can be
permitted to be amended incorporating the relevant
pleadings to maintain a claim under Section 163A MV Act.
The decision is that of the High Court of Delhi but it is not
applicable in the case on hand, since the factual situation
M.A.C.A.Nos.3991/2018, 1356 & 1598/2019
is entirely different. Therefore, the decision cited is
discarded from consideration.
17. It is submitted by the learned counsel for the
appellants in M.A.C.A Nos.1356/2019 and 1598/2019 that
the compensation stood awarded by the Tribunal under
Section 140 MV Act has already been deposited and the
learned counsel for the respondents/claimants in MACA
Nos.1356/2019 & 1598/2019 submitted it as received.
Sd/-
MARY JOSEPH
JUDGE
NAB
