Allowed

Dinju Ram K.P. v. K.K.Balan Nair

Kerala HC17 Oct 2018MACA/2749/2008

Case brief

AI extract

What is this about?

This motor accident appeal challenged the dismissal of a claim petition due to non-joinder of parties from the other vehicle. The Court, accepting the accident as a case of composite negligence, set aside the award and remanded the matter to the Tribunal for fresh consideration.

What did the court decide?

The award under challenge was set aside and the matter was remanded to the Tribunal for fresh consideration within three months.

Dinju Ram K.P. Vs K.K.Balan Nair — Motor Accident Claims | Kerala HC (2018)

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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 P.R.RAMACHANDRA MENON

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WEDNESDAY,THE 17TH DAY OF OCTOBER 2018 / 25TH ASWINA, 1940

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MACA.No. 2749 of 2008

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AGAINST THE AWARD IN OPMV 3249/2001 of PRINCIPAL M.A.C.T.,KOZHIKODE DATED 07-11-2007

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APPELLANT/PETITIONER:

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DINJU RAM K.P.

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27 YEARS, KANNDIPOYIL HOUSE, NANMINDA AMSOM DESOM, NANMINDA POST, NANMINDA - VIA, KOZHIKODE.

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BY ADVS.

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SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN

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RESPONDENTS/RESPONDENTS:

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1 K.K.BALAN NAIR, S/O. GOVINDAN NAIR, MARINGHATH CHALLIL HOUSE, KANNADIPOYIL POST, BALUSSERY, KOZHIKODE.

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2 SHAIJU, S/O. DEVI AMMA, THIYYA KUNNUMEL HOUSE, BALUSSERY, KOZHIKODE.

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3 THE UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE, KALLINGAL BUILDING,, P.B.NO.17, MAIN ROAD, BADAGARA, KOZHIKODE.

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BY ADV. SMT.R.REMA

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.No. 2749 of 2008

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JUDGMENT

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Dismissal of the claim petition preferred by

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the appellant, seeking compensation for the injuries sustained in an accident on 09.09.2001, when there occurred a collision between the motor cycle bearing No.KL.11B-2010, on which he was travelling as a pillion rider and an autorickshaw bearing No.KL.11D/4598, on the ground of non-joinder of necessary parties in the party array,(i.e. the owner, driver and insurer of the motor cycle ) is under challenge in this appeal.

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As borne out by the materials on record, a

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total compensation of Rs.One lakh was claimed before

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the Tribunal from the parties of the autorickshaw, contending that the accident was solely because of the negligence on the part of the driver of the autorickshaw. The policy issued in respect of the Autorickshaw was admitted by the respondent/insurer, though they sought to dispute the extent of negligence

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and quantum; also adding that the rider, owner and

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insurer of the motor cycle are also necessary parties.

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The evidence adduced before the Tribunal

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MACA.No. 2749 of 2008

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consists of Exts.A1 to A4 and the deposition given by the appellant/claimant as P.W1, besides Ext.C1 report of the Medical Board (marked as Court Exhibit), showing 8% permanent disability.

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The Tribunal considered the matter and

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accepting the version of the Insurance Company that the rider, owner and insurer of the motor cycle were also necessary parties, the claim petition was held as not liable to be entertained (since the aforesaid parties

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have not been impleaded in the party array) and consequently, it came to be dismissed, which led to the present appeal.

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After hearing both the sides, this Court finds it difficult to accept the reasoning given by the

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Tribunal for dismissing the Claim Petition.

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Involvement of the autorickshaw in the accident is not disputed. As far as the appellant/claimant is concerned, he was travelling only as a 'pillion rider' and this being the position, it is a case of 'composite negligence' and not a case of contributory negligence,

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as there was no contribution on the part of the pillion

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rider with regard to the accident. By virtue of the

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MACA.No. 2749 of 2008

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settled position of law, in a case of composite negligence, it is quite open for the aggrieved parties to proceed against either or both of the vehicles involved. In the instant case, the appellant/claimant thought it fit and proper to proceed only against the autorickshaw. There is absolutely nothing wrong in such a course and the Tribunal ought not to have dismissed the claim petition for not impleading the rider, owner and insurer of the motor cycle.

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The learned counsel for the appellant also

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brought it to the notice of this Court that in the accident, the rider of the motor cycle had also sustained some injuries, who had approached the Tribunal by filing O.P(MV)No.3257 of 2001. Based on

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the evidence, the Tribunal arrived at a finding that

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the accident was solely because of negligence on the part of the driver of the autorickshaw and compensation

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was awarded in respect of the injuries sustained by the

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rider of the motor cycle and the same has been satisfied by the respondent Insurance Company. This

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being the position, 'double standards' have been

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displayed by the Tribunal, which is not correct or

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MACA.No. 2749 of 2008

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liable to be sustained, submits the learned counsel.

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This Court finds force in the said submission.

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The matter requires to be re-considered by the Tribunal, also with reference to the findings rendered and the course adopted in the connected case, i.e. in respect of the rider of the motor cycle and also as to the extent of compensation payable to the appellant herein. Accordingly, the award under challenge stands set aside and the matter is remanded to the Tribunal for fresh consideration and disposal. Since the matter is very old, the matter is required to be finalised by the Tribunal as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The parties shall appear before the Tribunal on 17.12.2018. The appeal stands allowed to the said extent.

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Sd/- P.R.RAMACHANDRA MENON, JUDGE

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/true copy/

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P.S. TO JUDGE.

Dinju Ram K.P. v. K.K.Balan Nair

Case brief

What is this about?

What did the court decide?

Dinju Ram K.P. v. K.K.Balan Nair

Case brief

What is this about?

What did the court decide?

What the court decided

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