Allowed

Eldhose v. Sajeev

Kerala HC5 Feb 2016MACA/2265/2012

Case brief

AI extract

What is this about?

Appeal against a Motor Accidents Claims Tribunal award dismissing a compensation claim. The High Court set aside the award, finding it erroneous to reject the claim against the driver solely due to unfulfilled service of notice, especially given the charge sheet against him. The matter is remitted for fresh consideration.

What did the court decide?

Impugned award set aside; claim petition remitted to Tribunal for fresh consideration; parties directed to appear.

Eldhose Vs Sajeev — Execution and Attachment | Kerala HC (2016)

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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 C.T.RAVIKUMAR

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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FRIDAY, THE 5TH DAY OF FEBRUARY 2016/16TH MAGHA, 1937

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MACA.No. 2265 of 2012 ()

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AGAINST THE AWARD IN OPMV 1069/2006 of MACT, MUVATTUPUZHA DATED 23-12-2011

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APPLICANT/APPELLANT(S):

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ELDHOSE

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S/O.DANIEL, THURUTHIYIL HOUSE, PAYYAL KARA ODAKKALI, KUNNATHUNADU TALUK, ERNAKULAM DIST.

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BY ADVS.SRI.SREELAL N.WARRIER

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SRI.JOJI THOMAS

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RESPONDENT(S):

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SAJEEV K.K KALATHIKUDY HOUSE, KOTTAPADY P.O. KOTHAMANGALAM TALUK-680505

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BINU C.K

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CHIRANGARA HOUSE, KARUKADOM P.O.- 686691

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THE ORIENTAL INSURANCE COMPANY LTD KOTHAMANGALAM BRANCH, KOTHAMANGALAM P.O KOTHAMANGALAM-686691

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R3 BY ADV. SRI.VPK.PANICKER R3 BY SRI.GEORGE CHERIAN (THIRUVALLA)

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.T. RAVIKUMAR &

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MARY JOSEPH, JJ.

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M.A.C.A.No. 2265 OF 2012

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Dated this the 5^th day of February, 2016

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JUDGMENT

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Ravikumar, J.

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The unsuccessful claimant in O.P.(MV).No.1069 of 2006 before the Motor Accidents Claims Tribunal, Muvattupuzha comes up with this appeal challenging award thereon dated 23.12.2011 whereby and whereunder his claim for compensation for personal injuries was dismissed. The appellant filed the said claim petition for compensation in respect of the injuries sustained by him in a road accident that took place on 21.2.2006 at about 11.30 p.m. by the use of a motor vehicle. According to

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him, the vehicle involved in the accident in which he sustained

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MACA.2265/2012

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injuries, was driven by the first respondent at the relevant point of time and it belonged to the second respondent and it was having a valid insurance policy with the third respondent. The accident took place at 11.30 p.m when the goods autorikshaw bearing Reg.No.KL-17A-8232 in which he was accompanying furniture to be given to his cousin sister, turned turtle. He was taken to MBMM Hospital, Kothamangalam and he underwent treatment there. It is seeking compensation for the injuries sustained in the said accident that he filed the above mentioned claim petition.

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2.Admittedly, notice was not served on the first respondent, the driver of the alleged offending vehicle as no steps were taken by the appellant pursuant to an order in that regard by the Tribunal. The second respondent, the owner of the said vehicle was served with notice. However, he had not chosen to enter appearance before the Tribunal and resist the claim. The third

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MACA.2265/2012

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respondent entered appearance and filed written statement admitting that the offending vehicle was insured with it, in the name of the second respondent during the relevant period. At the same time, the third respondent took up the contention that the claim petition is not maintainable and denied the allegation of negligence alleged against the first respondent. True that, as an abundant caution, it was stated therein that the amounts of compensation claimed under different heads are exorbitant and

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excessive. Based on the rival pleadings, the Tribunal framed the

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following issues for consideration:-

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1.Who is responsible for the accident?

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2.Who is liable to pay the compensation?

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3.What, if any, is the quantum of compensation the petitioner is entitled to get?

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4.Relief and cost?

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3.To substantiate his claim for compensation, the petitioner

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got marked Exts.A1 to A4. However, no oral evidence was

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adduced by him. On the side of the respondents also, there was no oral evidence. But the third respondent-insurer produced Ext.B1 which is the policy certificate of the vehicle involved in this case. After appreciating the evidence on record and considering the arguments advanced, the Tribunal answered issue Nos.1 and 2, which were jointly considered, against the appellant/claimant. Needless to say that based on the findings as against issue Nos.1 and 2, no finding with respect to issue Nos. 3 and 4 became necessary. It was consequent to such consideration that claim petition was dismissed. It is in the said circumstances that this appeal has been preferred.

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4.We have heard the learned counsel for the appellant and the learned counsel for the third respondent- Insurance Company. In this context, it is also relevant to note that the first respondent on whom notice could not be served in the proceedings before the

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Tribunal was served with notice in this proceedings. But, the owner of the vehicle, the second respondent despite the receipt of notice has not chosen to enter appearance in this proceedings, as well.

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5.Certain aspects borne out from records are worthy to be noted. Going by Exts.A1 to A3, it is evident that the goods autorickshaw in question capsized on 21.2.2006 at about 11.30 p.m. Ext.A4 would reveal that the appellant was admitted in Mar Bassalleous Mission Hospital on 22.2.2006 and the cause of injury has been recorded therein as road accident. Ext.A4 would reveal that in the said accident, he sustained the following injuries:-

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Fracture (L) ulna distal fourth and fracture (L) ulnar shyloid. Multiple and extensive abrasions(L) forearm.

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It would also reveal that he underwent the following treatment:-

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Open reduction. Plate and screw fixation of ulna fracture and plaster cast immobilisation.

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6.In the contextual situation, it is also relevant to refer to the

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fact that the third respondent-insurer, in the written statement, admitted the factum of involvement of the vehicle in question in a road accident and it also admitted the existence of a valid insurance policy in respect of the said vehicle during the relevant period. A scanning of the impugned award would reveal that the case of the appellant for claim was rejected by the Tribunal taking note of the fact that going by the averments in the claim petition, the vehicle in question was being driven at the relevant point of time by one Sajeev and going by Ext.A1, which is the First Information Report together with FIS filed in crime No.82 of 2006 of Adimaly Police Station in connection with an accident involving the vehicle in question, the name of the accused viz., the driver of the said vehicle has been recorded as Babu and not

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as Sajeev, as claimed by the appellant. But at the same time, Ext.A3 would reveal that after conducting an investigation in crime No.82 of 2006, the investigating officer laid the charge against one Sajeev, as the driver of the said vehicle. The Tribunal evidently took note of the fact that going by the averments in the claim petition, the vehicle in question was driven by Sajeev at the relevant point of time and no notice was actually served on the first respondent, viz., Sajeev. Disregarding such aspects, relying on Ext.A1, the Tribunal held that there was nothing on record to show that it was driven by Sajeev and not by one Babu. It was further observed that the statements of the charge witnesses in Ext.A3 charge sheet were also not produced before the Tribunal and that apart, the Tribunal took note of the fact that Exts.A1 to A3 were marked for considering the claim petition subject to objection of the third respondent. In such circumstances, the Tribunal held that no attempt was made by the

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petitioner virtually to disprove Ext.A1 by examining the police officer who prepared the same. It is taking note of all circumstances that the Tribunal rejected the relief against the first respondent who had allegedly driven the offending vehicle at the relevant point of time citing the reason that the petitioner failed to take steps to serve notice to him. It was taking into account all such circumstances that the claim petition was dismissed.

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7.The learned counsel appearing for the appellant while admitting the lapse that the appellant failed to take out notice to the first respondent submitted that a close scrutiny of the documents produced before the Tribunal would reveal the fact that though in the FIS, name of the driver was mentioned as Babu, after the investigation, charge was in fact, laid against the first respondent, the person who is shown in the claim petition, viz., Sajeev. In such circumstances, another aspect also assumes

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relevance. Going by Ext.B1, the registered owner of the vehicle at the relevant point of time was the second respondent. The second respondent admittedly received notice from the Tribunal. He had not chosen to enter appearance and resist the claim petition. In other words, the second respondent who was the registered owner at the relevant point of time, going by Ext.B1, did not dispute the fact that the vehicle in question was driven by Sajeev at the relevant point of time and it is to be noted that Ext.A3 charge sheet was also laid against the first respondentSajeev. True that even in such circumstances the Tribunal would be justified in taking note of the failure on the part of the appellant to take steps to serve notice on the first respondent considering the fact that going by Ext.A1 the vehicle in question was driven at the relevant point of time by Babu. But, in the contextual situation, it is relevant to note that in this proceedings Sajeev has received notice. However, he has not chosen to enter

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appearance and contest the matter. Taking note of the fact that the evidence on record would reveal the fact that the vehicle in question actually involved in an accident on 21.2.2006 and that the appellant was admitted in the hospital immediately on sustaining injuries in a road accident on 21.2.2006 and also considering the fact that Ext.A4 would reveal that he had sustained injuries which are liable to be compensated and above all, taking into account the very fact that the provision for compensation incorporated under the M.V Act is a social welfare legislation, we are of the view that one last opportunity has to be afforded to the appellant to substantiate his claim for compensation by adducing proper evidence. Such fresh consideration is possible only if the impugned award is set aside and the matter is remitted for fresh consideration. The learned counsel for the appellant contended that taking note of the specific finding in the impugned award that the claim petition as

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against the first respondent stands rejected it may be made clear that the question of liability of the first respondent may be left open to be agitated in appropriate manner before the Tribunal by adducing proper evidence. In this case, another aspect assumes relevance. Though the first respondent was not served with notice from the Tribunal, he was served with notice in this proceedings. However, he has not chosen to enter appearance. We have already taken note of the fact that Ext.A3 would reveal that charge sheet has been laid against the first respondent viz, Sajeev, in crime No.82 of 2006 of Adimaly Police Station. The precise case of the appellant in the claim petition is that the vehicle in question was driven by Sajeev at the relevant point of time. In such circumstances, we are of the considered view that the finding that the claim stands rejected as against the first respondent is also liable to be vacated specifically to avoid further confusion in that matter at the time of fresh consideration of the

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claim petition. The learned counsel for the third respondent, insurer submitted that a crucial contention which was taken up by the third respondent in the written statement was not actually adverted to by the Tribunal. It is submitted by the learned counsel that a specific contention regarding violation of the permit conditions which would enable the insurer to take up a contention in terms of section 149(2), M.V.Act was taken up in the written statement. We have scanned the impugned award. True that the fact that such a contention was taken up by the third respondent does not find a place in the discussion of the evidence and also in pleadings. In such circumstances, it is made clear that at the time of fresh consideration of the claim petition, it will be open to both the parties to take up all contentions and to adduce evidence for establishing rashness and negligence as against the first respondent as well and it is made clear that the finding that the claim stands rejected as against the first respondent will not

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outlive this judgment. Needless to say that the third respondent will be entitled to take up the contention of violation of the conditions of the policy. In such circumstances, the impugned award is set aside. The Tribunal is directed to consider the claim petition afresh after affording opportunity to both sides. Taking note of the fact that the claim petition is of the year 2006, it shall be considered as expeditiously as possible. The appellant and third respondent shall appear before the Tribunal on 30.6.2016. On their appearance, the Tribunal shall permit the appellantclaimant to take out appropriate steps for serving notice on other respondents and then proceed with the matter, as mentioned above. The appeal is allowed as above.

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Sd/(C.T. RAVIKUMAR) JUDGE

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Sd/(MARY JOSEPH) JUDGE

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spc/

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MACA.2265/2012 14

Eldhose v. Sajeev

Case brief

What is this about?

What did the court decide?

Eldhose v. Sajeev

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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