Kerala High Court
Aliyarukunju vs T.Shylaja on 24 June, 2025
M.A.C.A. No.203 of 2020
&
Cross Objection No.39 of 2025
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2025:KER:44744
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 24TH DAY OF JUNE 2025 / 3RD ASHADHA, 1947
MACA NO. 203 OF 2020
AGAINST THE AWARD DATED 15.05.2018 IN OPMV NO.1474 OF
2009 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,
ATTINGAL.
APPELLANT/1ST RESPONDENT:
ALIYARUKUNJU,
AGED 51 YEARS,
S/O.ABDUL AZEEZ,
IRIPPIL HOUSE, 18TH KALLU,
THOLICODE P.O., THIRUVANANTHAPURAM DISTRICT,
WHICH IS WRONGLY MENTIONED AS ALIYARUKUNJU,
S/O.ABDUL AZEEZ, KIZHAKKUMKARAROADARIKATHU VEEDU,
PULIMOODU, THOLICODE P.O.,
THIRUVANANTHAPURAM DISTRICT.
BY ADV SHRI.N.K.KARNIS
RESPONDENTS/RESPONDENTS:
1 T.SHYLAJA,
SETHU BHAVAN,NJARANILI, ELANJAYAM P.O.,
PERINGAMMALA, NEDUMANGADU,
THIRUVANANTHAPURAM DISTRICT - 695 042.
2 SETHURANI,
SETHU BHAVAN, NJARANILI, ELANJAYAM P.O.,
PERINGAMMALA, NEDUMANGADU,
THIRUVANANTHAPURAM DISTRICT - 695 042.
M.A.C.A. No.203 of 2020
&
Cross Objection No.39 of 2025
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3 DEEPA,
NJARANILI, ELANJAYAM P.O., SETHU BHAVAN,
PERINGAMMALA, NEDUMANGADU,
THIRUVANANTHAPURAM DISTRICT - 695 042.
*4 ANWAR,
S/O.AZEEZ, HASEENA MANZIL, EDAMUKKU, CHETTACHAL
P.O., THIRUVANANTHAPURAM DISTRICT - 695 551.
(DELETED)
5 THE MANAGER, ORIENTAL INSURANCE CO.LTD.,
ST.MARY VILLA, ULLOOR P.O.,
THIRUVANANTHAPURAM DISTRICT - 695 011.
*RESPONDENT 4 IS DELETED FROM THE PARTY ARRAY AT THE
RISK OF THE APPELLANT AS PER ORDER DATED 17/06/2022
IN IA 1/2022 IN MACA 203/2020.
BY ADVS.
SRI.G.RADHAKRISHNAN
SMT.LATHA SUSAN CHERIAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 19.06.2025, ALONG WITH CO.39/2025, THE COURT ON
24.06.2025 DELIVERED THE FOLLOWING:
M.A.C.A. No.203 of 2020
&
Cross Objection No.39 of 2025
3
2025:KER:44744
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 24TH DAY OF JUNE 2025 / 3RD ASHADHA, 1947
CO NO. 39 OF 2025
AGAINST THE AWARD DATED 15.05.2018 IN OPMV NO.1474 OF
2009 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,
ATTINGAL.
CROSS OBJECTOR(S)/RESPONDENTS 1TO 3/CLAIMANTS:
1 T. SHYLAJA,
AGED 43 YEARS,
W/O VIDHYADHARAN KANI (LATE0 SATHY BHAVAN,
ELANCHIYAM.P. O, PERINGAMMALA, NEDUMANGAD,
THIRUVANANTHAPURAM, PIN - 695 042.
2 SETHURANI,
AGED 37 YEARS,
D/O VIDHYADHARAN KANI, SATHY- BHAVAN,
ELINCHAYAM.P. O, PERINGAMMAL, NEDUMANGAD,
THIRUVANANTHAPURAM., PIN - 695 042.
3 DEEPA,
AGED 32 YEARS,
D/O VIDHYADHARAN KANI, SATHY BHAVAN,
ELINCHAYAM.P. O, PERINGAMMALA, NEDUMANGAD,
THIRUVANANTHAPURAM., PIN - 695 042.
BY ADV SRI.G.RADHAKRISHNAN
RESPONDENT(S)/APPELLANT AND RESPONDENTS 4 AND 5:
1 ALIYARUKUNJU,
S/O ABDULAZEEZ, KIZHAKKUKARA ROAD ARIKATHU VEEDU,
PULIMOODU, THOLICODE P.O., PIN - 695 547.
M.A.C.A. No.203 of 2020
&
Cross Objection No.39 of 2025
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2 ANWAR,
S/O AZEEZ,HAZEENA MANZIL,EDAMUKKU,
CHETTACHAL, PIN - 695 551.
3 THE MANAGER, ORIENTAL INSURANCE CO.LTD.
MARY VILLA, ULLOOR,
THIRUVANANTHAPURAM, PIN - 655 551.
BY ADV ALIYARUKUNJU(PARTY-IN-PERSON)
THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR
HEARING ON 19.06.2025, ALONG WITH MACA.203/2020, THE COURT ON
24.06.2025 DELIVERED THE FOLLOWING:
M.A.C.A. No.203 of 2020
&
Cross Objection No.39 of 2025
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2025:KER:44744
C.S.SUDHA, J.
----------------------------------------------------
M.A.C.A. No.203 of 2020
&
Cross Objection No.39 of 2025
----------------------------------------------------
Dated this the 24th day of June, 2025
JUDGMENT
The aforesaid appeal under Section 173 of the Motor
Vehicles Act, 1988 (the Act) has been filed by the first
respondent/owner, aggrieved by the award dated 15/05/2018 in O.P.
(MV) No.1474/2009 on the file of the Motor Accidents Claims
Tribunal, Attingal (the Tribunal). The respondents are the claim
petitioners and respondents 2 & 3 respectively in the original petition.
The cross objection has been filed by the claim petitioners. In this
appeal and the cross objection, the parties and the documents will be
referred to as described in the original petition.
2. The claim petitioners are the legal heirs of deceased
Vidhyadharan Kani. According to the claim petitioners, the deceased
along with the claim petitioner in O.P.(MV) No.1434/2009 were
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working as loading and unloading workers and were earning an
amount of ₹5,000/- each per month when they met with the accident
at Mannanthala on 02/02/2007. Both of them were engaged in loading
goods in lorry bearing registration No.KL-01/V-8071. While the
loading was going on, the second respondent/driver moved the lorry
forward in a rash and negligent manner as a result of which the logs
from the lorry fell on them resulting in causing injuries to them. The
injuries caused to the deceased turned out to be fatal. Hence, the claim
petition seeking compensation to the tune of ₹6,00,000/-.
3. The first respondent/owner of the offending vehicle
and the second respondent/driver remained ex parte.
4. The third respondent/insurer filed written statement
challenging negligence on the part of the driver of the vehicle. The
right of the claim petitioners to claim compensation as well as the
quantum were challenged.
5. Before the Tribunal, no oral evidence was adduced
by either side. Ext.A1 was marked on the side of the claim petitioners.
Ext.X1 series is the CD file containing the FIR, the final report, the
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FIS and postmortem certificate. No documentary evidence was
adduced by the third respondent/insurer.
6. The Tribunal on consideration of the documentary
evidence and after hearing both sides, held relying on the dictums of
the Apex Court in Kaushnuma Begum v. New India Assurance Co.
Ltd., 2001 ACJ 428 and New India Assurance Co. Ltd. v.
Lakshmi, 2000 (3) KLT 80 that the driver of the lorry, namely, the
second respondent liable for the accident based on the principle of
strict liability. However, the Tribunal held that the claim petitioners
failed to prove the existence of a valid insurance policy and therefore,
the third respondent/insurer could not be made liable to indemnify
respondents 1 and 2 and hence went on to exonerate the third
respondent/insurer. The claim petitioners were held entitled to realise
the award amount of ₹5,14,750/- from respondents 1 and 2 jointly
with interest at the rate of 9% per annum from the date of petition till
realization. Aggrieved by the award, the first respondent/owner has
come up in appeal. The cross objection has been filed by the claim
petitioners challenging the maintainability of the appeal and also
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challenging the finding of the Tribunal that the claim petitioners had
failed to prove the existence of a valid insurance policy for the
vehicle.
7. The only point that arises for consideration in this
appeal and the cross objection is whether there is any infirmity in the
findings of the Tribunal calling for an interference by this Court.
8. Heard both sides.
9. In New India Assurance Co. Ltd. (Supra), this
Court held that injuries sustained during the course of unloading
goods from the vehicle is an accident which took place on account of
use of the vehicle. The use of a transport vehicle obviously involves
loading of goods, transporting the same and unloading the goods. All
those engaged in loading and unloading are using the vehicle during
such time. Therefore, any accident arising during loading and
unloading will also be an accident arising on account of use of the
vehicle. This dictum was followed by a Division Bench of this Court
in Rajan P. v. John K.J., ILR 2009 (1) Ker. 448 wherein the
question that was considered was whether the claimant therein was
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entitled to compensation for injuries sustained while loading goods
from a stationary truck. It was held that the claim for compensation
against the insurance company was maintainable as the accident arose
on account of the use of the vehicle.
10. In the case on hand, though the claim petitioners
contended that the accident occurred because the second
respondent/driver had rashly and negligently moved the vehicle
forward during the course of unloading of the logs by the deceased,
the same was found against in the light of Ext.X1, the final report in
the crime registered under Section 174 Cr.P.C., which shows that the
vehicle was stationary. However, the accident occurred while loading
the logs into the lorry. In the light of the dictums relied on by the
Tribunal, the owner and driver will be liable and the third
respondent/insurer is bound to indemnify them.
11. It was submitted by the learned counsel for the third
respondent/insurer that as the insurer had been exonerated by the
Tribunal, no appeal was filed. But if the impugned award is set aside,
the insurer would be taken by surprise and therefore the matter may be
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remanded to the Tribunal for a fresh consideration. I do not think a
remand of the case is necessary in the light of the aforesaid dictums.
The fact that there is a valid insurance policy for the vehicle is
admitted by the third respondent/ insurer though they had denied the
existence of the same before the Tribunal. When a valid policy was
existing at the time of the incident, the third respondent insurer would
certainly be liable to indemnify the insured and hence the finding of
the Tribunal exonerating the third respondent is liable to be set aside.
Though an argument was raised by the learned counsel for the claim
petitioners that the appeal filed by the first respondent/owner itself is
not maintainable and that the remedy was to file an application under
Order IX Rule 13 to set aside the ex parte decree, the said argument
cannot be accepted in the light of Section 173 of the Act which says
that any person aggrieved by an Award of the Claims Tribunal can file
an appeal within 90 days from the date of the Award.
In the result, the appeal is allowed and the impugned Award
is modified thus- The Award of compensation by the Tribunal is
confirmed. The direction to respondents 1 and 2 to pay the amount
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and exonerating the third respondent/insurer, is set aside. The third
respondent/insurer is directed to deposit the compensation awarded
with interest and costs before the Tribunal within a period of 60 days
from the date of receipt of a copy of the judgment. On deposit of the
compensation amount, the Tribunal shall disburse the amount to the
claim petitioners at the earliest in accordance with law after making
deductions, if any. The cross objection is partly allowed.
Interlocutory applications, if any pending, shall stand closed.
SD/-
C.S.SUDHA
JUDGE
ak
