Dismissed

New India Assurance Co.Ltd v. S.Divakaran

Kerala HC10 Jun 2010MACA/219/2003

Case brief

AI extract

What is this about?

Appeal by an insurance company against a Motor Accident Claims Tribunal award. The High Court dismissed the appeal, holding that police records established the policy's validity. The Court noted the appellant failed to adduce evidence regarding its branch location and refused to enhance compensation in absence of a challenge by the deceased's legal heirs.

What the court decided

AI extract

New India Assurance Co.Ltd Vs S.Divakaran — Insurance | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE A.K.BASHEER &

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THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI

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THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932

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MACA.No. 219 of 2003

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OPMV.25/1993 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR

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APPELLANT/3RD RESPONDENT:

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THE NEW INDIA ASSURANCE COMPANY LTD. REP BY ITS ASST. ADMINISTRATIVE OFFICER REGIONAL OFFICE, M.G.ROAD, KOCHI-11.

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BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)

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RESPONDENTS/ADDL.CLAIMANTS 2 AND 3, 2nd RESPONDENT &

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ADDL. RESPONDENTS 4 TO 6 RESPECTIVELY:

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S.DIVAKARAN, GEETHAVILASAM, (died)

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PLACHERI-P.O., PUNALUR

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PADMAKSHI, W/O S. DIVAKARAN, -DO- -DO- (died)

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MOHANAN PILLAI, PADIPURA VEEDU, MANIYAR, PUNALUR.

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RABIATH BEEVI, ARUPATHAPARA,

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PADINJATTETHIL, WARD NO.5, THENMALA, EDAMON.

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ABDUL RAZAK, - DO -, - DO -.

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ABDUL SALAM, - DO - , - DO -.

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Addl. R7. VIKRAMAN, S/O DIVAKARAN GEETHA VILASAM, PLACHERRY.P.O. PUNALUR

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Addl. R8. VIMALA, D/O DIVAKARAN, - DO -, - DO -.

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Addl. R9. SABU, S/O DIVAKARAN, - DO -, - DO -.

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Addl. R10. GEETHA, D/O DIVAKARAN, - DO -, - DO -.

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(Addl. respondents 7 to 10 impleaded as the legal representatives of deceased R1 & R2 as per order dated 3-8-2007 in IA 1037/2007)

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ADV. SRI.C.V.VASUDEVAN FOR R1 & R2 SMT.V.SUJATHA

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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A.K.BASHEER & P.Q.BARKATH ALI, JJ.

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M.A.C.A.No.219 OF 2003

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- - - - Dated this the 10^th day of June 2010

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JUDGMENT

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Basheer, J.

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This appeal is directed against the award passed by the Motor Accident Claims Tribunal, Punalur in a claim petition filed by the legal representatives of the victim of a road traffic accident. By the impugned award, the Tribunal has directed the appellant/insurer of the vehicle involved in the accident to indemnify the owner and to pay a sum of Rs.1,93,000/- with interest towards compensation to the legal heirs of the victim.

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It is contended by the learned senior counsel for the appellant that the award passed by the Tribunal is manifestly illegal, vitiated and unsustainable either in law or on facts.

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The victim of the accident, Vivekanandan, was run over by a jeep on June 13, 1981 on Punalur-Anchal public road. It is beyond controversy that he suffered very grievous injury on his spinal cord. He remained in the Medical College Hospital, Thiruvananthapuram for about six months. Thereafter, he underwent treatment in Holy Cross Hospital, Kottayam as an inpatient for 11 months. Since there was no chance of recovery, the hospital authorities requested the relatives of the victim to get him discharged from the hospital. For all practical purposes Vivekanandan became a vegetable with absolutely no prospect of recovery. It was in the above circumstances, a claim petition was filed seeking compensation to the tune of Rs.5,00,000/- from the owner, driver and insurer of the vehicle.

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M.A.C.A.No.219 OF 2003

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It is true that the claim petition was filed in the year 1986 after a long delay of five years. But the Tribunal condoned the delay after hearing the parties. In the course of the trial, respondent No.1/the owner of the vehicle passed away and his legal representatives were impleaded in the case. On the death of the injured victim, his legal representatives also were impleaded during the pendency of the case.

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In his written statement, the driver of the vehicle admitted that the accident had occurred while he was driving the same. But he denied the allegation that he was rash and negligent. He further asserted that the jeep was validly covered by a policy of insurance at the time of the accident issued by the appellant. Thus the driver of the vehicle contended that if the claimant is found entitled to get any compensation, the insurance company may be directed to pay the same.

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In its written statement, the appellant contended that no policy had ever been issued in respect of the vehicle. Moreover the company had no branch office at Punalur from where the insurance policy was allegedly issued.

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PWs1 to 8 were examined on the side of the claimants and Exts.A1 to A13 were also marked on their side. There was no oral or documentary evidence on the side the respondents. Exts.X1 to X3 medical reports of the victim were marked as court exhibits.

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The Tribunal, after considering the oral and documentary evidence on record, found that the accident occurred due to the rash and negligent driving of the vehicle by its driver. While assessing the quantum of compensation the Tribunal noticed that the victim had been totally bed ridden till his death because of the

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M.A.C.A.No.219 OF 2003

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grievous injuries sustained by him on his spinal cord. For this purpose, the Tribunal relied on Ext.X1 to X3 medical records apart from other documents produced by the claimants. The evidence of PW5 to 8, the doctors who treated the victim at various hospitals and at home, after his discharge was also taken note of by the Tribunal while awarding a sum of Rs.1,93,000/- as compensation with 9% interest thereon from the date of institution of the petition till its realisation.

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The tribunal held that the appellant/insurance company was liable to pay the compensation. To arrive at the above conclusion, the Tribunal placed reliance on certain entries found in police records. It may be noticed that police had registered Crime No.212/1981 against respondent No.2 on the date of the accident itself. A certified copy of the FIR is on record as Ext.A1. Ext.A2 is the certified copy of the charge sheet laid by the police against respondent No.2 Ext.A3 is the certified copy of the scene mahazar prepared by the police on June 14, 1981 viz. on the next day after the accident. The police officer who prepared Ext.A3 had inspected the vehicle at the time of preparation of the scene mahazar as is revealed from the said document. After perusing the records relating to the vehicle, the author of Ext.A3 noted that the said vehicle stood in the name of respondent No.1 and that it was covered under an insurance policy valid upto January 15, 1982, issued by the appellant/respondent No.3. The number of the policy certificate and the branch from which it was issued, were also indicated. Further, it was also mentioned that the vehicle tax had been remitted by the owner for the period upto June 30, 1981. The tax receipt, permit, fitness certificate, etc. which were available in the vehicle were also taken into custody by the police along with the other

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M.A.C.A.No.219 OF 2003

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records referred to above.

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We have referred to the above aspects as revealed from Ext.A3 in extenso only to deal with the contention raised by learned senior counsel for the appellant that the Tribunal had committed serious illegality in assuming that the appellant had issued a valid policy cover in respect of the vehicle. It is not in dispute that details like policy certificate, number, name of the branch office, etc. were available in Ext.A3. However, it is contended by the learned counsel that the learned Judge ought to have extracted those details in the award. We are afraid the above contention is wholly untenable particularly since Exts.A1 to A3 police records clearly established, as noticed by the Tribunal that vehicle records were in order. In that view of the matter, we do not find any substance or merit in the contention raised by the learned counsel that the Tribunal had jumped into unwarranted conclusions without considering any materials available on record.

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It is further contended by the learned counsel that the appellant/company had no branch at Punalur at the time of the accident. But the appellant did not bother to adduce any evidence in this regard. Atleast one of the officers of the company could have been examined. If infact the police officer had committed any mistake while noting the name of the Branch, the appellant could have taken steps to call for the records from the criminal court. No such steps were taken by the appellant in this regard. In that view of the matter, we do not find any merit in the above contention raised by the appellant.

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There is yet another aspect of the matter. The unfortunate accident took place in the year 1981. The victim succumbed to the injuries after prolonged agony

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M.A.C.A.No.219 OF 2003

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and suffering. He died as a vegetable, apparently. The misery undergone not only by the victim but also the members of his family, has to be kept in view. The Tribunal has awarded only a paltry sum considering the age of the victim. But, since no appeal has been filed by the legal heirs of the victim challenging the inadequate quantum, we do not propose to enhance the compensation. In any view of the matter, there is absolutely no warrant for interference with the impugned award.

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The appeal is totally devoid of any merit. It is accordingly dismissed.

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A.K.BASHEER, JUDGE

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P.Q.BARKATH ALI, JUDGE

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jes

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M.A.C.A.No.219 OF 2003

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A.K.BASHEER & P.Q.BARKATH ALI, JJ.

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- - - - M.A.C.A.No.219 OF 2003

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JUDGMENT

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Dated 10^th June 2010

New India Assurance Co.Ltd v. S.Divakaran

Case brief

What is this about?

What the court decided

New India Assurance Co.Ltd v. S.Divakaran

Case brief

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