Kerala High Court
Joyal Seby Paul vs Sunny K.K on 15 September, 2025
2025:KER:68586
OP (MAC) No. 88 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
MONDAY, THE 15TH DAY OF SEPTEMBER 2025 / 24TH BHADRA, 1947
OP (MAC) NO. 88 OF 2025
AGAINST THE ORDER DATED 06.12.2024 IN I.A.NO.3 OF 2024 IN
O.P.(MV) NO.1094 OF 2024 OF THE MOTOR ACCIDENT CLAIMS
TRIBUNAL, MUVATTUPUZHA
PETITIONERS/RESPONDENTS 1 & 2:
1 JOYAL SEBY PAUL,
AGED 17 YEARS, S/O. SEBY PAUL,
ERUMBAYIL HOUSE, CHELAPPADAM BHAGAM,
KUNNACKAL KARA, KUNNACKAL P.O.,
VALAKOM VILLAGE, MUVATTUPUZHA TALUK,
ERNAKULAM DISTRICT, PIN-682316,
REPRESENTED BY HIS FATHER AND NATURAL GUARDIAN,
SEBY PAUL, AGED 48 YEARS, S/O. PAILY PAULOSE,
ERUMBAYIL (H), CHELAPPADAM BHAGAM,
KUNNACKAL KARA, KUNNACKAL P.O.,
VALAKOM VILLAGE, MUVATTUPUZHA TALUK,
ERNAKULAM DISTRICT
2 SEBY PAUL,
AGED 48 YEARS, S/O. PAILY PAULOSE,
ERUMBAYIL HOUSE, CHELAPPADAM BHAGAM,
KUNNACKAL KARA, KUNNACKAL P.O.,
VALAKOM VILLAGE, MUVATTUPUZHA TALUK,
ERNAKULAM DISTRICT, PIN-682316
BY ADVS.
SHRI.SUSANTH SHAJI
SHRI.SIDHARTH O.
SHRI.ALBIN A. JOSEPH
SMT.NEKHA VARGHESE
SMT.PARVATHY T.M.
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OP (MAC) No. 88 of 2025
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RESPONDENTS/PETITIONER & R3:
1 SUNNY K.K.,
AGED 61 YEARS, S/O. KURIAKOSE,
KANJIRATHINKAL (H), CHELAPPADAM BHAGAM,
KUNNACKAL KARA, KUNNACKAL P.O.,
VALAKOM VILLAGE, MUVATTUPUZHA TALUK,
ERNAKULAM DISTRICT, PIN-682316
2 THE MANAGER,
NATIONAL INSURANCE CO.LTD.,
KOLENCHERY DIVISION, FIRST FLOOR,
V/570G, ELLORA TOWERS, KOLENCHERY,
KOLENCHERY P.O., ERNAKULAM DISTRICT,
PIN-682311
BY ADVS.
SHRI.ANTONY MUKKATH
R2 SHRI.N.S.NAJEEB
SHRI.REGI MATHEW
SRI. GEORGE A. CHERIAN., STANDING COUNSEL
THIS OP (MAC) HAVING COME UP FOR ADMISSION ON
15.09.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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OP (MAC) No. 88 of 2025
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MOHAMMED NIAS C.P., J.
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O.P.(MAC) No. 88 of 2025
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Dated this the 15th day of September, 2025
JUDGMENT
The petitioners, who are the respondents in O.P.(MV)
No.1094 of 2024, challenge Exts.P5 and P6, the orders passed in
I.A.No.3 of 2024, an application filed by the petitioner under Order 38
Rule 5 of the Code of Civil Procedure, to attach the property of the
2nd respondent, who is the 2nd petitioner herein.
2. The claim petition was filed by the 1 st respondent herein
under Section 166 of the Motor Vehicles Act (for short, 'the Act') for
compensation for the injuries caused to him in an accident that
occurred on 09.08.2024. The 1st respondent in the claim petition was
the rider, the 2nd respondent was the owner, and the 3rd respondent is
the insurer of the scooter bearing registration No.KL-17/N-9110. It is
alleged that the 1st respondent in the claim petition was a minor who
had no driving licence to ride the scooter. As stated above, I.A.No.3
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of 2024 was filed seeking attachment of the property of the 2 nd
petitioner herein, on the basis that if an award is passed in favour of
the claimant, he must be able to enjoy the fruits of the award.
3. The Tribunal found that the record shows that the 1 st
respondent, who was riding the offending vehicle, did not have a
licence and hence found that the same is a violation of the
conditions of the policy. The Tribunal also found that the
amendment to the Motor Vehicles Act came into force on 01.04.2022,
and the accident in the instant case was on 09.08.2024. Therefore,
the provisions of the amended Act were applicable. It was held that
the amended Section 150 of the Act did not permit the Tribunal to
direct the Insurance Company to pay the compensation amount to
the petitioner with liberty to recover it from the owner after
satisfying the award as per the proviso to Sub-section (4) of Section
149 of the Act, as the proviso stood deleted by the amendment.
4. Accordingly, an order was passed on 06.12.2024, ordering
a conditional attachment over the 2nd petitioner's share in the
petition schedule properties. Thereafter, the matter was posted on
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06.02.2025, when the 2nd petitioner was absent, and the earlier order
of attachment was made absolute. These are the orders under
challenge in this Original petition.
5. Learned counsel for the petitioners submits that the
deletion of the proviso as aforesaid did not make any difference, as
the Insurance Company had the right to recover after satisfying the
award, and therefore, there is no warrant for attaching the property
belonging to the 2nd petitioner. Learned counsel places considerable
reliance on the judgment of the Allahabad High Court in ICICI
Lombard General Insurance Company Limited v. Smt. Arti Devi
and Others (First Appeal from Order No.1780 of 2024) and the
judgment of the Madras High Court in The Branch Manager, M/s.
SBI General Insurance Company Limited v. Muthulakshmi and
Others (CMA Nos.554, 309, 569, 671 and 755 of 2025 and CMA No.934
of 2024 and CMP Nos.4140, 2203, 5356 and 6099 of 2025 and CMP
No.8708 of 2024). Learned counsel also relies on the judgment of the
Honourable Supreme Court in National Insurance Company
Limited v. Swaran Singh [2004 KHC 314].
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4. True, the judgments of both the High Courts found that
the right of the insurer to pay and recover was unaffected by the
deletion of the proviso. However, it is seen that a SLP petition was
filed against the judgment of the Madras High Court and as against
the judgment of the Allahabad High Court, SLP No.8269 of 2025 has
already been admitted, and the effect and operation of the impugned
judgment was kept in abeyance.
5. Though I find substantial force in the contention of the
learned counsel for the petitioners, taking note of the fact that the
decisions of the Allahabad High Court as well as the Madras High
Court are pending consideration before the Apex Court, I am not
inclined to finally decide the question urged on behalf of the
petitioners.
6. However, it is to be noted that, in answer to the
attachment application submitted by the petitioners, the 2nd
petitioner has stated as follows:-
"5. Moreover, through this present application the
applicant is seeking to attach the property having an
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extent of 24.99 Ares and 9.11 Ares in Survey
No.305/3. 15 and 305/3-16 respectively of Valakam
Village, Muvattupuzha Taluk by contending that
property described in the schedule may be alienated
or disposed of to defeat his claim and that he has
received information regarding the so called
proposed sale of the property from Mr. Eldho P.A. At
the first instance, it is respectfully submitted that the
scheduled property is not the COURT absolute
property of the 2nd respondent. As a matter of fact,
the schedule property is in the joint ownership and
possession of the 2nd respondent and his brother Joby
Paul and they both are remitting basic tax before the
Village Office, Valakam in respect of the schedule
property and that is evident from the basic tax on
03/06/2024 issued by the Village Officer, Valakam
Village. In fact, the 2nd respondent had obtained füll
rights over the schedule property through the
execution of Partition Deed No. 1152/2018 of SRO,
Muvattupuzha and thereafter half rights over the
schedule property was settled by the 2nd respondent
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herein in favour of his brother Joby Paul through the
execution of Settlement Deed No. 1474/2020 of SRO,
Muvattupuzha on 05.06.2020. In such circumstances,
the 2nd respondent from 05/06/2020 is only having an
undivided half share of the schedule property and it
is hereby reaffirmed that the schedule property is
not in the absolute ownership and possession of the
2nd respondent herein and is only having an
undivided half share of the same. In the aforesaid
circumstances, the 20 respondent alone will never
have any rights to dispose of the entire schedule
property and moreover, 2nd respondent nor his
brother are having any plans to alienate their
interest in the schedule property to the third party.
In fact, the 2nd respondent and his brother are
residing upon the building constructed upon the
schedule property along with their families and
therefore alienation of the assets are not even in the
wildest imagination of the 2nd respondent and his
brother and unless and until the applicant satisfies
this Honourable Tribunal that the owner of the
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schedule property is about to dispose of the property
or about to remove whole or any part of the property
from the local limits of the jurisdiction of the
Honourable Court, the applicant cannot seek an
order of attachment before judgment."
7. In other words, the petitioners contended that the
apprehension raised by the claim petitioner is unfounded, that they
had no intention to alienate the properties in question. The
undertaking made by the petitioners is recorded. In view of the
above, there is no need to attach the property as ordered in the
impugned orders.
8. The impugned orders are set aside. There will be a
direction to the Motor Accidents Claims Tribunal, Muvattupuzha, to
consider and dispose of O.P.(MV) No.1094 of 2024 on its merits.
The Original petition is allowed as above.
Sd/-
MOHAMMED NIAS C.P.
JUDGE
bpr
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APPENDIX OF OP (MAC) 88/2025
PETITIONERS' EXHIBITS
Exhibit P1 TRUE COPY OF THE ORIGINAL PETITION DATED
23/10/2024 IN O.P.(MV)NO.1094/2024 ON
THE FILES OF MOTOR ACCIDENTS CLAIMS
TRIBUNAL, MUVATTUPUZHA
Exhibit P2 TRUE COPY OF THE ATTACHMENT PETITION
DATED 23.10.2024 IN I.A.NO.3/2024 IN
O.P. (MV)NO.1094/2024 ON THE FILES OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
MUVATTUPUZHA
Exhibit P3 TRUE COPY OF THE ATTACHMENT SCHEDULE
DATED 23.10.2024 SUBMITTED BY THE 1ST
RESPONDENT IN OP(MV) NO.1094/2024 ON THE
FILES OF MOTOR ACCIDENTS CLAIMS
TRIBUNAL, MUVATTUPUZHA
Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT
SUBMITTED BY THE PETITIONERS HEREIN IN
I.A.NO.3/2024 IN O.P. (M.V.)
NO.1094/2024 MOTOR ACCIDENTS CLAIMS
TRIBUNAL, MUVATTUPUZHA
Exhibit P5 TRUE COPY OF THE ORDER DATED 06.12.2024
IN I.A.NO.3/2024 IN O.P. (M.V.)
NO.1094/2024 ON THE FILES OF MOTOR
ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA
Exhibit P6 TRUE COPY OF THE ORDER DATED 06.02.2025
IN I.A.NO.3/2024 IN OP(MV)NO. 1094/2024
ON THE FILES OF MOTOR ACCIDENTS CLAIMS
TRIBUNAL, MUVATTUPUZHA
