Kerala High Court
Jayakumar vs Vishnu on 28 July, 2025
M.A.C.A.No.190 of 2020
and
M.A.C.A.No.2722 of 2020
1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 28TH DAY OF JULY 2025 / 6TH SRAVANA, 1947
MACA NO. 190 OF 2020
AGAINST THE AWARD DATED 27.06.2019 IN OPMV NO.1382 OF
2014 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
ATTINGAL.
APPELLANT/1ST RESPONDENT:
JAYAKUMAR
AGED 47 YEARS
S/O.CHANDRASEKHARAN NAIR,
J.K.NIVAS, EDAVILAKOM, CHIRAYINKEEZHU,
THIRUVANANTHAPURAM, PIN-695304
BY ADVS.
SRI.M.T.SURESHKUMAR
SRI.R.RENJITH
SRI.P.R.JAYASANKAR
SRI.DARSAN SOMANATH
SMT.MANJUSHA K
RESPONDENTS/APPLLICANT/RESPONDENTS 2 AND 3:
1 SYAMLAL
S/O.SATHEESAN,
SANIL NIVAS, KODALIKKONAM,
EDAKKODE VILLAGE, CHIRAYINKEEZHU,
THIRUVANANTHAPURAM, PIN-695104
2 SURESH
S/O.NATARAJAN,
EZHAVARKONATHUPUTHEN VEEDU,
ELAMBA.P.O, THIRUVANANTHAPURAM, PIN-695103
M.A.C.A.No.190 of 2020
and
M.A.C.A.No.2722 of 2020
2
2025:KER:55561
3 THE ORIENTAL INSURANCE CO.LTD
BRANCH OFFICE AMARIJYOTHI COMPLEX,
KADAPPAKKADA, KOLLAM PIN-691008,
REPRESENTED BY ITS DIVISIONAL MANAGER
BY ADVS.
SRI.J.R.PREM NAVAZ
SRI.GEORGE CHERIAN (SR.)
SMT.ALEXY AUGUSTINE
SHRI.SUMEEN S.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 28.07.2025, ALONG WITH MACA.2722/2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.No.190 of 2020
and
M.A.C.A.No.2722 of 2020
3
2025:KER:55561
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
MONDAY, THE 28TH DAY OF JULY 2025 / 6TH SRAVANA, 1947
MACA NO. 2722 OF 2020
AGAINST THE AWARD DATED 27/06/2019 IN OPMV NO.1381 OF
2014 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
ATTINGAL.
APPELLANT/1ST RESPONDENT:
JAYAKUMAR,
AGED 47 YEARS,
S/O.CHANDRASEKHARAN NAIR,
J.K.NIVAS, EDAVILAKOM,
CHIRAYINKEEZHU,
THIRUVANANTHAPURAM, PIN - 695 304.
BY ADVS.
SRI.M.T.SURESHKUMAR
SMT.MANJUSHA K
SRI.R.RENJITH
RESPONDENTS/APPLICANT/RESPONDENTS 2 AND 3:
1 VISHNU,
AGED 20 YEARS
S/O.VANAJAN, CHARUVILA VEEDU, ELAMBA P.O.,
IDAKKODU VILLAGE, CHIRAYINKEEZHU,
THIRUVANANTHAPURAM, PIN - 695 104.
2 SURESH,
S/O.NATARAJAN,
EZHAVARKONATHUPUTHEN VEEDU, ELAMBA P.O.,
THIRUVANANTHAPURAM, PIN - 695 103.
M.A.C.A.No.190 of 2020
and
M.A.C.A.No.2722 of 2020
4
2025:KER:55561
3 THE ORIENTAL INSURANCE CO.LTD.,
REPRESENTED BY ITS DEPUTY MANAGER,
THIRD PARTY CLAIM HUB, 2ND FLOOR,
ST.MARY VILLA, ULLOOR, MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM, PIN - 695 011.
BY ADVS.
SRI.J.R.PREM NAVAZ
SRI.GEORGE CHERIAN (SR.)
SMT.ALEXY AUGUSTINE
SRI.GEORGE A.CHERIAN
SHRI.SUMEEN S.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 28.07.2025, ALONG WITH MACA.190/2020, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.No.190 of 2020
and
M.A.C.A.No.2722 of 2020
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2025:KER:55561
C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A.No.190 of 2020
and
M.A.C.A.No.2722 of 2020
----------------------------------------------------
Dated this the 28th day of July 2025
JUDGMENT
These appeals have been filed under Section 173 of the
Motor Vehicles Act, 1988 (the Act) by the first respondent/owner
in O.P.(MV) Nos.1381 and 1382 of 2014 on the file of the Motor
Accidents Claims Tribunal, Attingal (the Tribunal), aggrieved by
the common Award dated 27/06/2019. The respondents in both
the appeals are the claim petitioners and respondents 2 and 3
respectively in the petitions. In these appeals, the parties and the
documents will be referred to as described in the original
petitions.
2. According to the claim petitioners, on
19/10/2014 at about 06:30 p.m., while they were travelling on
motorcycle bearing registration no.KL-16-F-1099 as rider and
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pillion rider through Venjaramoodu - Attingal public road and
when they reached near the place by name Valakkadu, tipper
lorry bearing registration no.KL-16-F-8322 driven by the second
respondent in a rash and negligent manner knocked them down,
as a result of which they sustained grievous injuries.
3. The first respondent-owner and the second
respondent-driver of the offending vehicle remained ex-parte.
4. The third respondent-insurer filed written
statement admitting the policy but denying negligence on the part
of the 2nd respondent-driver. It was also contended that the
vehicle had no valid fitness certificate at the time of the accident
and hence the policy condition was violated.
5. Before the Tribunal, Exts.A1 to A16 were
marked on the side of the claim petitioners. No oral or
documentary evidence was adduced by the respondents.
6. The Tribunal on consideration of the
documentary evidence and after hearing both sides, found
negligence on the part of the second respondent-driver of the
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offending vehicle resulting in the incident and hence awarded an
amount of ₹4,06,712/- to the claim petitioner in O.P.(MV)
1381/2014 and ₹3,22,212/- to the claim petitioner in O.P.(MV)
1382/2014 together with interest @ 9% per annum from the date
of the petition till realisation along with proportionate costs. The
third respondent/insurer has been given the liberty to recover the
award amount from the first respondent/owner. Aggrieved by the
Award, the first respondent/owner has come up in appeal.
7. The only point that arises for consideration in
these appeals are whether there is any infirmity in the findings of
the Tribunal calling for an interference by this Court.
8. Heard both sides.
9. It is submitted by the learned counsel for the
first respondent/owner of the offending vehicle that the Tribunal
committed a gross error in giving liberty to the third
respondent/insurer to recover the amount from him without proof
of the contention of the latter that the vehicle did not have a valid
fitness certificate at the time of the incident. In support of the
and
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argument reference was made to the dictums in Mumthas v.
Rafeek, 2022 KHC 524 and Oriental Insurance Co.Ltd.,
Kottayam v. Santhoshkumar, 2021 KHC 747.
10. In Mumthas (Supra), a Single Bench of this
Court held that when a contention regarding absence of driving
license or fitness certificate is taken, the same has to be
established by giving notice to the owner and driver of the
offending vehicle to produce the certificate before the Court. If
they fail to produce the documents on receipt of notice, an
adverse inference regarding absence of the documents can be
taken. In the absence of such a course of action being adopted,
the Tribunal is not to conclude regarding absence of driving
license or fitness certificate on the basis of the contention taken
up in the written statement to the said effect.
10.1. In Santhoshkumar (Supra), a Single Bench of
this Court held that even after the Award is passed, if the owner
of the offending vehicle is able to produce the necessary
certificate(s) during the recovery proceedings, the Tribunal can
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consider the sanctity of the documents with due notice and
hearing to the insurer, and reverse the order of recovery.
11. Coming to the case on hand, the relevant
portion of paragraph no.4 of the written statement of the third
respondent/insurer reads thus-
"............But at the time of alleged accident the said
Tipper lorry had no fitness certificate and thus the 1st
respondent violated the terms and conditions of policy
issued by this respondent. Hence the 3rd respondent is
not liable to indemnify the 1 st respondent (insured).
This Hon'ble Tribunal may be pleased to direct the 1 st
respondent to produce the fitness certificate if any, to
the above said Tipper Lorry at the time of accident for
verification, otherwise adverse inference may be
drawn. " (Emphasis supplied)
The first respondent/owner does not have a case that he had not
received summons or notice from the Tribunal. Despite receipt of
summons, he chose to remain ex-parte. In the light of the
pleadings in paragraph no.4 of the written statement of the third
respondent/insurer, a further application by the third
respondent/insurer for directing the first respondent/owner to
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produce the fitness certificate is not necessary. Further, the case
of the third respondent in the written statement has neither been
denied nor disputed. When a fact is neither denied nor disputed,
the same will have to be taken as admitted, for which no proof is
required.
12. After the passing of the Award, I.A.
No.5666/2019 in O.P.(MV) 1382/2014 and I.A.No.5667/2019 in
O.P.(MV) 1381/20214 were filed by the first respondent/owner
for setting aside the ex-parte Award. Paragraph nos.3 and 4 of
the affidavit accompanying the application read thus-
"3. In the original O.P I have received
notice and entrusted the same with one Advocate
who is practicing at Thiruvananthapuram. During
2015 I have lost my mobile phone irrecoverably
during a bus journey in which the contact number
and name of the said advocate was feeded. I was
under the impression that the said advocate will
file vakkalath and contest the case on my behalf.
But unfortunately I could not remember his name
and even trace out his advocate office.
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4. While so on 25-06-2019, when I
enquired about the status of the case, it is known
from the office of the court that the said O.P is
allowed in part as narrated in paragraph 2 above.
Upon enquiry made by my present counsel on 08-
07-2019 it is known to me that the earlier counsel
had not filed vakalath before the Hon'ble Tribunal
and not filed my written statement."
13. The Tribunal as per orders dated 15/10/2019
dismissed the aforesaid applications. Copies of the applications
and the orders were handed over to me during the course of
arguments by the learned counsel for the first respondent/owner.
In the light of the averments in the affidavit accompanying
I.A.Nos.5666/2019 and 5667/2019 seeking setting aside of the
Award, the Tribunal was justified in dismissing the same.
14. The last portion of the operative part of the
Award reads thus-
"5) 3rd respondent is allowed to
reimburse the award amount from the 1st
respondent on initially depositing the same in the
name of the petitioner. However, the right to
reimbursement shall become inoperative, if in a
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proceedings for recovery the 1st respondent
produces a valid fitness certificate and a finding
to that effect is entered into that petition subject
to reasonable cost to the insurance company."
Referring to this, it is submitted by the learned counsel for the
first respondent/owner that as liberty has been granted by the
Tribunal to establish his contention, the matter may be remanded
so as to enable the first respondent/owner to establish his defence.
According to the learned counsel for the first respondent/owner,
the vehicle was taken to the authorised workshop for conducting
necessary tests for getting the fitness certificate. The tests were
completed and the vehicle was taken out for trial run, at which
time, the vehicle was exhibiting a board to the effect that it was
on trial run. The accident took place when the vehicle was on
trial run. It is also submitted that the first respondent/owner had
taken steps sufficiently early for the fitness certificate renewed.
However, some objections were raised by the official concerned
and hence the vehicle was again presented before the authorised
workshop for carrying out the necessary repairs. Thereafter, when
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the vehicle was taken out for trial run, it met with the accident in
this case. However, the first respondent/owner was never able to
establish the same and so , interest of justice requires the matter to
be remanded for a fresh consideration, so that he can file written
statement and adduce evidence to establish his defence, goes the
argument.
15. The relevant portion of the operative part of the
Award only means that if the first respondent/owner produces the
fitness certificate having validity at the time of the accident,
during the recovery proceedings, he can be exonerated of his
liability. This does not mean that the Tribunal is to reopen the
matter or conduct a fresh inquiry regarding the defence now set
up by the first respondent/owner. It also does not mean that the
Revenue Recovery Authority must conduct an inquiry regarding
the defence of the first respondent/owner. What is contemplated
is only the production of the fitness certificate valid as on the date
of the accident. Even now the first respondent/owner is unable to
produce the fitness certificate to show that the same was valid at
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the time of the accident. In such circumstances, I do not find any
infirmity in the findings of the Tribunal by which liberty has been
given to the third respondent/insurer to recover the amount from
the first respondent-owner.
In the result, the appeals sans merit are dismissed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
