Kerala High Court
B.Saraswathy Amma vs Molly Joy on 5 November, 2024
2024:KER:85506
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 5TH DAY OF NOVEMBER 2024 / 14TH KARTHIKA, 1946
MACA NO. 290 OF 2021
AGAINST THE COMMON AWARD DATED 27.12.2012 IN OPMV
NO.647 OF 2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PUNALUR
APPELLANT/LEGAL HEIRS OF 4TH RESPONDENT:
1 B.SARASWATHY AMMA
AGED 55 YEARS
W/O. LATE SOMASUNDARAN PILLAI, SREENILAYAM,
(KOTTARAZHIKOM), KOTTUKAL P. O., ITTIVA, ANCHAL,
KOLLAM - 691 306.
2 ABHILASH S.
S/O. LATE SOMASUNDARAN PILLAI, SREENILAYAM,
(KOTTARAZHIKOM), KOTTUKAL P. O., ITTIVA, ANCHAL,
KOLLAM - 691 306.
3 ADARSH S.
S/O. LATE SOMASUNDARAN PILLAI, SREENILAYAM,
(KOTTARAZHIKOM), KOTTUKAL P. O., ITTIVA, ANCHAL,
KOLLAM - 691 306.
4 AGEASH S.
S/O. LATE SOMASUNDARAN PILLAI, SREENILAYAM,
(KOTTARAZHIKOM), KOTTUKAL P. O., ITTIVA, ANCHAL,
KOLLAM - 691 306.
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2
BY ADV A.S.SHAMMY RAJ
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3, 5 & 6:
1 MOLLY JOY
W/O. JOY GEORGE, BLACKONATHU CHARUVILA PUTHEN
VEEDU, AMPALAKKARA P. O.,
VALAKOM, KOTTARAKKARA, KOLLAM - 691 532.
2 JANET JOY
D/O. JOY GEORGE, BLACKONATHU CHARUVILA PUTHEN
VEEDU, AMPALAKKARA P. O., VALAKOM, KOTTARAKKARA,
KOLLAM - 691 532.
3 JANSON JOY
S/O. JOY GEORGE, BLACKONATHU CHARUVILA PUTHEN
VEEDU, AMPALAKKARA P. O., VALAKOM, KOTTARAKKARA,
KOLLAM - 691 532.
4 THANKACHAN [DELETED]
S/O. GEORGE, JIJI COTTAGE, ERANOOR, PALAVELY P.
O., KOTTARAKKARA, KOLLAM - 691 532.
5 MATHAIKUTTY
MUKALUVILA VEEDU, ODANAVATTOM P. O.,
KOTTARAKKARA, KOLLAM - 691 512.
6 UDAYAKUMAR
S/O. THANKAPPAN, UDAYA BHAVAN, PANAVELY P. O.,
KOTTARAKKARA, KOLLAM - 691 532.
7 AJITH @ MANIKANTAN
S/O. VIKRAMAN, YAMUNA SADANAM, MELAKKADA,
KOTTUKAL P. O., ANCHAL, KOLLAM - 691 306.
8 THE BRANCH MANAGER
NEW INDIA ASSURANCE CO. LTD., PULAMON P. O.,
KOTTARAKKARA, KOLLAM - 691 531.
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MACA NOs. 290 OF 2021 and connected cases
3
[RESPONDENT NUMBER 4 IS DELETED FROM PARTY ARRAY
AT THE RISK OF THE APPELLANT AS PER ORDER DATED
21/12/2021 IN IA-3/2021 IN MACA 290/2021]
BY ADVS.
SRI.K.V.ANIL KUMAR
SRI.V.RENJITH KUMAR FOR R6
ADV. SURESH SUKUMAR
STANDING COUNSEL, SRI. LAL K.JOSEPH FOR R8
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 05.11.2024, ALONG WITH OP (MAC).16/2022, 293/2021
AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
2024:KER:85506
MACA NOs. 290 OF 2021 and connected cases
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 5TH DAY OF NOVEMBER 2024 / 14TH KARTHIKA, 1946
MACA NO. 293 OF 2021
AGAINST THE COMMON AWARD DATED 27.12.2012 IN OPMV
NO.436 OF 2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PUNALUR
APPELLANTS/LEGAL HEIRS OF 3RD RESPONDENT:
1 B.SARASWATHY AMMA
AGED 55 YEARS
W/O LATE SOMASUNDARAN PILLAI, SREENILAYAM
(KOTTARAZHIKOM), KOTTUKAL P.O.ITTIVA, ANCHAL,
KOLLAM-691 306.
2 ABHILASH S,
S/O LATE SOMASUNDARAN PILLAI, SREENILAYAM
(KOTTARAZHIKOM), KOTTUKAL P.O.ITTIVA, ANCHAL,
KOLLAM-691 306.
3 ADARSH S,
S/O LATE SOMASUNDARAN PILLAI, SREENILAYAM
(KOTTARAZHIKOM), KOTTUKAL P.O.ITTIVA, ANCHAL,
KOLLAM-691 306.
4 AGEASH S,
S/O LATE SOMASUNDARAN PILLAI, SREENILAYAM
(KOTTARAZHIKOM), KOTTUKAL P.O.ITTIVA, ANCHAL,
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MACA NOs. 290 OF 2021 and connected cases
5
KOLLAM-691 306.
BY ADV A.S.SHAMMY RAJ
1. RESPONDENTS/PETITIONER & RESPONDENTS 1,2,4,5 & 6:
1 JACOB GEORGE @ SAJU
S/O GEORGE KUTTY, BLAMKONATHU CHARUVILA PUTHEN
VEEDU, AMBALAKKARA P.O.VALAKKOM,
KOTTARAKKARA,KOLLAM-691 532.
2 THANKACHAN,
S/O GEORGE, JIJI COTTAGE, ERANOOR, PANAVELY,
KOTTARAKKARA, KOLLAM-691 506.
3 UDAYA KUMAR,
S/O THANKAPPAN, UDAYA BHAVAN, PANAVELY,
KOTTARAKKARA, KOLLAM-691 506.
4 AJITH @ MANIKANTAN,
S/O VIKRAMAN, YAMUNA SADANAM, MELAKKAD,
KOTTUKKAL, ANCHAL,KOLLAM-691 306.
5 THE BRANCH MANAGER,
NEW INDIA ASSURANCE CO LTD, PULAMON
P.O.KOTTARAKKARA, KOLLAM-691 531.
6 MATHAIKUTTY,
MUKALUVILA VEEDU, ODANAVATTOM P.O.
KOTTARAKKARA, KOLLAM-691 512.
[RESPONDENT NUMBER 4 IS DELETED FROM PARTY ARRAY
AT THE RISK OF THE APPELLANT AS PER ORDER DATED
21/12/2021 IN IA-3/2021 IN MACA 290/2021]
BY ADVS.
RENJITH KUMAR V FOR R3
LAL K.JOSEPH FOR R5
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MACA NOs. 290 OF 2021 and connected cases
6
SRI.K.V.ANIL KUMAR FOR R6
SURESH SUKUMAR
MOHAPRASEED MOHAN(K/001096/2019)
ADARSH SANJEEVAN(K/004032/2023)
M.P.MARY(K/88/1962)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 05.11.2024, ALONG WITH MACA.290/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:85506
MACA NOs. 290 OF 2021 and connected cases
7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 5TH DAY OF NOVEMBER 2024 / 14TH KARTHIKA, 1946
MACA NO. 330 OF 2021
AGAINST THE COMMON AWARD DATED 27.12.2021 IN OP(MV)
NO.438 OF 2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PUNALUR
APPELLANTS/LEGAL HEIRS OF 3RD RESPONDENT:
1 B.SARASWATHY AMMA
AGED 55 YEARS
W/O.LATE SOMASUNDARAN PILLAI,SREENILAYAM,
(KOTTARAZHIKOM),KOTTUKAL.P.O, ITTIVA,
ANCHAL,KOLLAM-691306.
2 ABHILASH.S,
S/O. LATE SOMASUNDARAN PILLAI,SREENILAYAM,
(KOTTARAZHIKOM),KOTTUKAL.P.O, ITTIVA,
ANCHAL,KOLLAM-691306.
3 ADARSH.S,
S/O. LATE SOMASUNDARAN PILLAI,SREENILAYAM,
(KOTTARAZHIKOM),KOTTUKAL.P.O,
ITTIVA,ANCHAL,KOLLAM-691306.
4 AGEASH.S,
S/O. LATE SOMASUNDARAN PILLAI,SREENILAYAM,
(KOTTARAZHIKOM),KOTTUKAL.P.O,
ITTIVA,ANCHAL,KOLLAM-691306.
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MACA NOs. 290 OF 2021 and connected cases
8
BY ADV A.S.SHAMMY RAJ
RESPONDENTS/ADDITIONAL PETITIONERS 2 & 3, RESPONDENTS 1, 2
4 5 & 6
1 MOLLY JOY
D/O.TRESIAMMA VARGHESE,KALLUKKALAM
VEEDU,KAVALAM.P.O, THEKKUMBHAGOM, ALAPPUZHA-
688506.
2 ABRAHAM VARGHESE (DECEASED)
S/O.TRESIAMMA VARGHESE,KALLUKKALAM
VEEDU,KAVALAM.P.O, THEKKKUMBHAGOM, ALAPPUZHA-
688506.
3 THANKACHAN (DELETED)
S/O.GEORGE,JIJI COTTAGE,ERANOOR, PALAVELY.P.O,
KOTTARAKKARA, KOLLAM-691532.
4 UDAYAKUMAR,
S/O.THANKAPPAN,UDAYA BHAVAN, PANAVELY.P.O,
KOTTARAKKARA, KOLLAM-691532.
5 AJITH @ MANIKANTAN,
S/O.VIKRAMAN,YAMUNA SADANAM,
MELAKKADA,KOTTUKAL.P.O, ANCHAL, KOLLAM-691306.
6 THE BRANCH MANAGER,
NEW INDIA ASSURANCE CO.LTD,
PULAMON.P.O,KOTTARAKKARA, KOLLAM-691531.
7 MATHIAKUTTY,
MUKALUVILA VEEDU,ODANAVATTOM.P.O,
KOTTARAKKARA,KOLLAM-691512. **ADDL.
RESPONDENTS
8 ADDL. ROSAMMA ABRAHAM
W/O. LATE ABRAHAM VARGHESE, KALLUKKALAM VEEDU,
KAVALAM P.O., THEKKUMBHAGOM, ALAPPUZHA - 688
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MACA NOs. 290 OF 2021 and connected cases
9
506.
9 ADDL.ROBBIN ,
S/O. (LATE) ABRAHAM VARGHESE, KALLUKKALAM VEEDU,
KAVALAM P.O., THEKKUMBHAGOM, ALAPPUZHA - 688
506.
0 ADDL. RONIYA ,
D/O (LATE) ABRAHAM VARGHESE, KALLUKKALAM VEEDU,
KAVALAM P.O., THEKKUMBHAGOM, ALAPPUZHA - 688
506.
(THE THIRD RESPONDENT IS DELETED FROM THE PARTY
ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER
DATED 20/01/2022 IN I.A.NO.1/2022)
(THE LEGAL HEIRS OF DECEASED SECOND RESPONDENTS
ARE IMPLEADED AS ADDITIONAL RESPONDENTS 8 TO 10
AS PER ORDER DATED 25/2/222 IN I.A 3/21)
BY ADVS.
Renjith Kumar V FOR R4
SHRI.LAL K.JOSEPH, SC, NEW INDIA ASSURANCE
COMPANY LTD.
ANZIL SALIM
MOHAPRASEED MOHAN(K/001096/2019)
M.P.MARY(K/88/1962)
ADARSH SANJEEVAN(K/004032/2023)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 05.11.2024, ALONG WITH MACA.290/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2024:KER:85506
MACA NOs. 290 OF 2021 and connected cases
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 5TH DAY OF NOVEMBER 2024 / 14TH KARTHIKA, 1946
OP (MAC) NO. 16 OF 2022
AGAINST THE ORDER DATED 31.12.2021 IN EA 10/2021 IN
OPMV NO.436 OF 2007 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL ,PUNALUR
PETITIONERS/JUDGMENT DEBTORS 2 TO 5:
1 SARASWATHY AMMA
AGED 57 YEARS
W/O. LATE SOMASUNDARAN PILLAI, SREENILAYAM,
KATTARAZHIKOM, KOTTUKAL P.O., ITTIVA, ANCHAL,
KOLLAM - 691 306.
2 ABHILASH S.
S/O.LATE SOMASUNDARAN PILLAI, SREENILAYAM,
KATTARAZHIKOM, KOTTUKAL P.O., ITTIVA, ANCHAL,
KOLLAM - 691 306.
3 ADARSH S.
S/O.LATE SOMASUNDARAN PILLAI, SREENILAYAM,
KATTARAZHIKOM, KOTTUKAL P.O., ITTIVA, ANCHAL,
KOLLAM - 691 306.
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4 AGEASH S.
S/O.LATE SOMASUNDARAN PILLAI, SREENILAYAM,
KATTARAZHIKOM, KOTTUKAL P.O., ITTIVA,ANCHAL,
KOLLAM - 691 306.
BY ADV A.S.SHAMMY RAJ
RESPONDENT/RESPONDENT:
NEW INDIA ASSURANCE COMPANY LTD.
REPRESENTED BY ITS MANAGER,
KOTTARAKKARA BRANCH, KOTTARAKKARA P.O.,
KOLLAM - 691 506.
THIS OP (MAC) HAVING COME UP FOR ADMISSION ON
05.11.2024, ALONG WITH MACA.290/2021 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
[MACA Nos.290/2021, 293/2021, 330/2021, O.P (MAC)
O.P(MAC) No 16/2022]
These appeals and the original petition are filed by the
appellants/legal heirs of the third respondent/judgment debtors
2 to 5 against the common award dated 27.12.2012 in O.P.(MV)
Nos.647/2007, 436/2007, 438/2007 and against the order dated
31.12.2021 in E.A.No.10/2021 in E.P.No.98/2013 in O.P.(MV)
No.436/2007 on the file of the Motor Accident Claims Tribunal,
Punalur.
2. The brief facts of the case is as follows: on
20.05.2007, at about 8.10 p.m, while the deceased Joy George
and the petitioners in the original petition were travelling in a
jeep bearing registration No.KL-2J-4921 through
Thiruvananthapuram - Kottarakkara public road, it collided
with another jeep bearing registration No.KL-01J-7855, which
was driven by one Mr. Ajith @ Manikantan, the 5 th respondent
in O.P.(MV) No.647/2007 and 4th respondent in O.P.(MV)
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Nos.436 and 438 of 2007. The accident occurred due to the
rash and negligent driving of the drivers of both vehicles. As a
result of the accident, Mr. Joy George succumbed to the
injuries. The petitioners in O.P.(MV) Nos.436 and 438 of 2007
sustained serious injuries. During the pendency of the original
petitions, the petitioner in O.P.(MV) No.438 of 2007 and the
fourth petitioner in O.P.(MV) No.647 of 2007 passed away. Mr.
Thankachan, the first respondent in the above three original
petitions is the registered owner of the jeep bearing
registration No.KL-2J-4921. The third respondent in O.P.(MV)
647/2007 and second respondent in O.P.(MV) Nos. 436 and
438/2007, Mr. Mathaikutty is the driver of the jeep bearing
registration No.KL-2J-4921. The second respondent in O.P
(MV) No.647/2007, additional 6th respondent in O.P.(MV)
Nos.436 and 438/2007 is the insured of KL-2J-4921 jeep. The
afore two jeeps were insured with the New India Assurance Co.
Ltd.
3. The Respondents 4 and 6 in O.P.(MV) Nos.436 and
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438 of 2007 and respondents 2 and 5 in O.P.(MV) No.647 /2007
did not turn up to appear and contest the matter. The
respondents 3 and 4 in O.P.(MV) No.647/07, Mr. Udayakumar
the driver of the jeep bearing registration No.KL-2J-4921 filed
written statement contending that the accident occurred due
to the carelessness of the driver of Jeep bearing No.KL-1J-7855
and and Mr. Somasundaran Pillai, the owner of the vehicle
bearing registration No. KL-1J-7855 filed written statement
raising contention that the accident occurred due to the
carelessness of the driver of the jeep bearing registration
No.KL-2J-4921. Mr. Somasundaran Pillai further contended that
the driver of the jeep was having a valid driving licence. The
New India Assurance Co. Ltd, who is the insurer of the two
vehicles filed written statements, contending that the drivers of
both vehicles were not rash and negligent. They were driving
their vehicle with ample care and caution. The accident
happened due to the rash and negligent driving of the driver of
the car which came in opposite direction in high speed and in
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order to avoid a collision, the driver of jeep bearing registration
No.KL-01J-7855, applied brake and as a result, the said jeep
happened to skid off from the road and hit on the jeep bearing
registration No.KL-2J-4921 which came in the opposite
direction. Hence, the insurer of the vehicle is not liable to
indemnify the claimants. The first respondent, the registered
owner of the jeep bearing registration No.KL-2J-4921 in all
three original petitions filed written statements, contending
that it was due to the carelessness of the driver of KL-01J-7855
jeep that the accident occurred. He contended that he was
having a valid driving licence and hence he is not liable to pay
compensation to the claimants. He also contended that the
compensation claimed by the claimants is excessive. The
insurance company issued a valid policy for KL-2J-4921 jeep,
not to Thankachan, the first respondent, but to one
Mathaikutty. The jeep bearing registration No.KL-2J-4921 was
in the registered ownership and possession of R1,
Mr.Thankachan, with effect from 16.01.2009. But the policy
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MACA NOs. 290 OF 2021 and connected cases
was not duly transferred to R1. Hence, the company is not
liable to indemnify R1 or to compensate the claimants.
4. I have heard the counsel appearing on both sides.
The appellants in all the appeals are the legal heirs of
Somasundaran Pillai, the owner of the jeep bearing registration
No.KL-01J-7855 who expired on 29.08.2009, during the
pendency of the original petition. However, the claimants did
not take any steps to implead the legal heirs of the original
owner. This fact was not brought to the notice of the tribunal
and without noticing the same, the Motor Accidents Claims
Tribunal, Punalur, had passed a common award dated
27.12.2012, directing the insurance company to realise 50% of
the award amount from the owner of the jeep bearing
registration No.KL-1J-7855.
5. Despite filing a written statement by
Sri.Somasundaran Pillai, an ex-parte award was passed against
him on 27.12.2012. Since the legal heirs were not impleaded
even after three years of his death, they did not get an
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opportunity to adduce evidence before the tribunal. Hence, the
original petition has been abated and the award passed against
the deceased is a nullity.
6. The learned Standing Counsel appearing for the
insurance company submitted that based on the award passed
by the tribunal, the insurance company has deposited a portion
of the awarded amount, with the tribunal and the claimants
have received the said amount.
Considering the facts of the case, I find that one more
opportunity has to be granted to the appellants herein to
substantiate their case, since the award was passed by the
tribunal without them in the party array. Thus, I find that the
award is to be set aside and the matter is to be remanded back
to the tribunal for fresh consideration.
Accordingly, the award dated 27.12.2012 in O.P.(MV) Nos.
647, 436 and 438 of 2007 passed by the Motor Accidents
Claims Tribunal, Punalur is hereby set aside. The claimants
shall be permitted to implead the necessary parties in the
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party array. The tribunal shall consider the entire matter
afresh by giving all parties sufficient opportunity to
substantiate their claims and pass appropriate orders, in
accordance with law, as expeditiously as possible. Whatever
deposit made by the insurance company towards the award
amount shall be given credit to.
The parties shall appear before the tribunal on
02.12.2024.
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
RK
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APPENDIX OF OP (MAC) 16/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF EXECUTION PETITION IN
OP(MV) NO.436/2017 ON THE FILE OF
MOTOR ACCIDENT CLAIMS
TRIBUNAL,PUNALUR.
Exhibit P2 TRUE COPY OF AWARD DATED 27/12/2012 IN
OP (MV) NO.436/2007 ON THE FILE OF
MOTOR ACCIDENT CLAIMS TRIBUNAL,
PUNALUR.
Exhibit P3 TRUE COPY OF E.A.NO.10/2021 IN EP
NO.98/2013 IN OP (MV) NO.436/2007 ON
THE FILE OF THE MOTOR ACCIDENT CLAIMS
TRIBUNAL, PUNALUR DATED 3/2/2021.
Exhibit P4 TRUE COPY OF ORDER DATED 31/12/2021 IN
E.A.NO.10/2021 IN E.P.NO.98/2013 IN
O.P.(MV) NO.436/2017 ON THE FILE OF
MOTOR ACCIDENT CLAIMS TRIBUNAL,
PUNALUR.
