Remanded

Hadson Stephen v. Vipin Chand

Kerala HC10 Dec 2018MACA/4279/2017

Case brief

AI extract

What is this about?

Appeals against Motor Accidents Claims Tribunal awards were disposed of. The High Court noted lack of evidence regarding rash and negligent driving and conflicting views on owner liability, setting aside awards and remitting cases to the Tribunal for fresh enquiry with liberty to adduce evidence.

What did the court decide?

Writs against the Tribunal awards were dismissed. All cases are remanded to the Tribunal for fresh consideration and enquiring the matter afresh with liberty to adduce evidence.

Hadson Stephen Vs Vipin Chand — Motor Accident Claims | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶4

MONDAY ,THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940

¶5

MACA.NO. 4279 OF 2017

¶6

AGAINST THE AWARD IN O.P.(M.V.) NO.431/2008 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ATTINGAL DATED 08-07-2016

¶7

APPELLANT/4TH RESPONDENT :

¶8

HADSON STEPHEN, AGED 69 YEARS, S/O.STEPHEN, KEERTHI, KAKKOTTUMOOLA, MAYYANAD P.O., KOLLAM.

¶9

BY ADVS. SRI.R.MOHANA BABU SRI.M.AJITH (KARICODE)

¶10

RESPONDENTS/PETITIONER AND RESPONDENTS:

¶11

1 VIPIN CHAND, S/O.RADHAKRISHNAN NAIR, R.S. MANDIRAM,NJARAYILKONAM P.O., MADAVOOR VILLAGE.

¶12

2 VISAK KRISHNAN, S/O.RADHAKRISHNAN NAIR, R.S. MANIDRAM, NJARAYILKONAM P.O., MADAVOOR VILLAGE.

¶13

3 D.DANIEL OTTUVILALI, PAKKODE, THIKURICHI P.O., KANYAKUMARI DISTRICT, TAMIL NADU.

¶14

4 JAYARAJAN C., LEELA VILASOM BUNGALOW, THAMPANNAN, KALATHINVILA, NELLIKUZHY, NEYYATTINKARA.

¶15

5 THE UNITED INDIA INSURANCE CO. LTD. ASH HAR COMPLEX, PALACE ROAD, ATTINGAL.

¶16

¶17

MACA.NO. 4279 OF 2017 &

¶18

CONNECTED CASES

¶19

6 THE NATIONAL INSURANCE CO. LTD. GANDHARI AMMAN COIL ROAD, PULIMOOD JUNCTION, THIRUVANANTHAPURAM.

¶20

*** ADDITIONAL RESPONDENTS 7 TO 9 IMPLEADED**

¶21

7 LIJITH @ KUTTAN, S/O BALACHANDRA KURUP, SEEMANTHAPURATHU VEEDU, THUMPODE, MADAVOOR, THIRUVANANTHAPURAM.

¶22

8 HARIS, S/O ALIYAR KUNJU, HARIS MANZIL, THAZHUTHALA, KOTTIYAM P.O., KOLLAM.

¶23

9 ZIYAD, S/O MUHAMMED KUNJU, SAJAD MANZIL, THUMPODE, MADAVOOR, THIRUVANANTHAPURAM.

¶24

**** ADDITIONAL RESPONDENTS 7 TO 9 ARE IMPLEADED AS PER ORDER DATED 10.12.2018 IN I.A. NO.1 OF 2018.**

¶25

BY ADVS. SRI.E.M.JOSEPH SRI.RAJESH THOMAS SRI.S.R.AJITH SRI.AJITH KRISHNAN SRI.T.R.HARIKUMAR

¶26

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2018 ALONG WITH M.A.C.A. NO.4280/2017, M.A.C.A. NO.4281/2017 , M.A.C.A. NO.4282/2017, M.A.C.A. NO.3602/2018, M.A.C.A. NO.3603/2018 AND M.A.C.A. NO.3630/2018. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶27

CONNECTED CASES 3

¶28

MACA.NO. 4279 OF 2017 &

¶29

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶30

PRESENT

¶31

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶32

MONDAY ,THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940

¶33

MACA.NO. 4280 OF 2017

¶34

AGAINST THE AWARD IN O.P.(M.V.) NO.441/2008 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ATTINGAL DATED 08.07.2016

¶35

APPELLANT/4TH RESPONDENT :

¶36

HADSON STEPHEN, KEERTHI, KAKKOTTUMOOLA, MAYYANAD P.O., KOLLAM.

¶37

BY ADVS. SRI.R.MOHANA BABU SRI.M.AJITH (KARICODE)

¶38

RESPONDENTS/PETITIONER AND RESPONDENTS:

¶39

1 VIPIN CHAND, S/O.RADHAKRISHNAN NAIR, R.S. MANDIRAM, NJARAYILKONAM P.O., MADAVOOR VILLAGE.

¶40

2 VISAK KRISHNAN, S/O.RADHAKRISHNAN NAIR, R.S. MANIDRAM, NJARAYILKONAM P.O., MADAVOOR VILLAGE.

¶41

3 D.DANIEL OTTUVILALI, PAKKODE, THIKURICHI P.O., KANYAKUMARI DISTRICT, TAMIL NADU-629702.

¶42

4 JAYARAJAN.C, LEELA VILASOM BUNGALOW, THAMPANNAN, KALATHINVILA, NELLIKUZHY, NEYYATTINKARA

¶43

¶44

MACA.NO. 4279 OF 2017 &

¶45

CONNECTED CASES

¶46

5 THE UNITED INDIA INSURANCE CO. LTD., ASH HAR COMPLEX, PALACE ROAD, ATTINGAL.

¶47

6 THE NATIONAL INSURANCE CO. LTD., GANDHARI AMMAN COIL ROAD, PULIMOOD JUNCTION, THIRUVANANTHAPURAM

¶48

*** ADDITIONAL RESPONDENTS 7 TO 9 IMPLEADED.**

¶49

7 LIJITH @ KUTTAN, S/O BALACHANDRA KURUP, SEEMANTHAPURATHU VEEDU, THUMPODE, MADAVOOR, THIRUVANANTHAPURAM.

¶50

8 HARIS, S/O ALIYAR KUNJU, HARIS MANZIL, THAZHUTHALA, KOTTIYAM P.O., KOLLAM.

¶51

9 ZIYAD, S/O MUHAMMED KUNJU, SAJAD MANZIL, THUMPODE, MADAVOOR, THIRUVANANTHAPURAM.

¶52

**** ADDITIONAL RESPONDENTS 7 TO 9 ARE IMPLEADED AS PER ORDER DATED 10.12.2018 IN I.A. NO.1 OF 2018.**

¶53

BY ADVS. SRI.R.KISHORE (KALLUMTHAZHAM) SRI.E.M.JOSEPH SRI.RAJESH THOMAS SRI.S.R.AJITH SRI.AJITH KRISHNAN SRI.T.R.HARIKUMAR

¶54

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2018, ALONG WITH M.A.C.A. NO.4279/2017, M.A.C.A. NO.4281/2017, M.A.C.A. NO.4282/2017, M.A.C.A. NO.3602/2018, M.A.C.A. NO.3603/2018 AND M.A.C.A. NO.3630/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶55

MACA.NO. 4279 OF 2017 &

¶56

¶57

CONNECTED CASES

¶58

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶59

PRESENT

¶60

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶61

MONDAY ,THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940

¶62

M.A.C.A.NO. 4281 OF 2017

¶63

AGAINST THE AWARD IN O.P.(M.V.) NO.940/2010 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ATTINGAL DATED 08-07-2016

¶64

APPELLANT/4TH RESPONDENT :

¶65

HADSON STEPHEN, AGED 69 YEARS, KEERTHI, KAKKOOTTUMOOLA, MAYYANAD P.O. KOLLAM.

¶66

BY ADVS. SRI.R.MOHANA BABU

¶67

SRI.M.AJITH (KARICODE)

¶68

RESPONDENT/PETITIONER AND RESPONDENTS :

¶69

1 DEEPA.V W/O LATE SATHEESA CHANDRAN, ABHINAV MANDIRAM, NANDHANAM, NEAR GUEST HOUSE, VARKALA P.O., THIRUVANANTHAPURAM- 695 001.

¶70

2 ABHINAV,(MINOR), AGED 15 YEARS, S/O SATHEESH CHANDRAN, ABHINAVA MANDIARAM, NANDHANAM, NEAR GUEST HOUSE, VARKALA P.O., THIRUVANANTHAPURAM- 695 001

¶71

3 ABHINAND, (MINOR),AGED 11 YEARS S/O SATHEESH CHANDRAN, ABHINAVA MANDIARAM, NANDHANAM, NEAR GUEST HOUSE, VARKALA P.O. THIRUVANANTHAPURAM- 695 004. MINOR RESPONDENTS ARE REPRESENTED BY THEIR MOTHER IST RESPONDENT.

¶72

4 VISWAMBHARA KURUP, F/O SATHEESH CHANDRAN, SATHEESHA MANDIRAM, THUMPOD, MADAVUR, THIRUVANANTHAPURAM695 012

¶73

5 SANTHAKUMARI, M/O SATHEESH CHANDRAN, SATHEESHA MANDIRAM, THUMPOD, MADAVUR, THIRUVANANTHAPURAM695 012.

¶74

CONNECTED CASES 6

¶75

MACA.NO. 4279 OF 2017 &

¶76

6 D.DANIEL OTTUVILALI, PAKKODE, THIKURICHI P.O., KANYAKUMARI DISTRICT, TAMIL NADU. 7 JAYARAJAN.C., LEELA VILASOM BUNGLOW, THAMPANNAN, KALATHINVILA, NELLIKUZHY, NEYYATINKARA. 8 THE UNITED INDIA INSURANCE CO. LTD. ASH HAR COMPLEX, PALACE ROAD, ATTINGAL- 695 011 9 THE NATIONAL INSURANCE CO. LTD. GANDHARI AMMAN COIL ROAD, PULIMOOD JUNCTION, THIRUVANANTHAPURAM- 695 011 * ADDITIONAL RESPONDENTS 10 TO 12 IMPLEADED 10 LIJITH @ KUTTAN, S/O BALACHANDRA KURUP, SEEMANTHAPURATHU VEEDU, THUMPODE, MADAVOOR, THIRUVANANTHAPURAM. 11 HARIS, S/O ALIYAR KUNJU, HARIS MANZIL, THAZHUTHALA, KOTTIYAM P.O., KOLLAM. 12 ZIYAD, S/O MUHAMMED KUNJU, SAJAD MANZIL, THUMPODE, MADAVOOR, THIRUVANANTHAPURAM. ** ADDITIONAL RESPONDENTS 10 TO 12 ARE IMPLEADED AS PER ORDER DATED 10.12.2018 IN I.A. NO.1 OF 2018. BY ADVS.SRI.E.M.JOSEPH SRI.RAJESH THOMAS SRI.R.KISHORE (KALLUMTHAZHAM) SRI.S.R.AJITH SRI.AJITH KRISHNAN SRI.T.R.HARIKUMAR

¶77

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2018, ALONG WITH M.A.C.A. NO.4279/2017, M.A.C.A. NO.4280/2017, M.A.C.A. NO.4282/2017, M.A.C.A. NO.3602/2018, M.A.C.A. NO.3603/2018, AND M.A.C.A. NO.3630/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶78

CONNECTED CASES 7

¶79

MACA.NO. 4279 OF 2017 &

¶80

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶81

PRESENT

¶82

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶83

MONDAY ,THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940

¶84

MACA.NO. 4282 OF 2017

¶85

AGAINST THE AWARD IN O.P.(M.V.) NO.442/2008 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ATTINGAL DATED 08-07-2016

¶86

APPELLANT/4TH RESPONDENT :

¶87

HADSON STEPHEN, KEERTHI, KAKKOTTUMOOLA, MAYYANAD P.O., KOLLAM.

¶88

BY ADVS. SRI.R.MOHANA BABU SRI.M.AJITH (KARICODE)

¶89

RESPONDENTS/PETITIONER AND RESPONDENTS :

¶90

1 VIPIN CHAND, S/O.RADHAKRISHNAN NAIR, R.S. MANDIRAM, SEEMANTHAPURAM, NJARAYILKONAM P.O., MADAVOOR VILLAGE.

¶91

2 VISAK KRISHNA, S/O. RADHAKRISHNAN NAIR, R.S. MANDIRAM, NJARAYILKONAM P.O., MADAVOOR VILLAGE.

¶92

3 D. DANIEL OTTUVILALI, PAKKODE, THIKURICHI P.O., KANYAKUMARI DISTRICT, TAMIL NADU.

¶93

4 JAYARAJAN C., LEELA VILASOM BUNGALOW, THAMPANNAN, KALATHINVILA, NELLIKUZHY, NEYYATTINKARA.

¶94

¶95

MACA.NO. 4279 OF 2017 &

¶96

CONNECTED CASES

¶97

5 THE UNITED INDIA INSURANCE CO. LTD., ASH HAR COMPLEX, PALACE ROAD, ATTINGAL.

¶98

6 THE NATIONAL INSURANCE CO. LTD., GANDHARI AMMAN COIL ROAD, PULIMOOD JUNCTION, THIRUVANANTHAPURAM.

¶99

*ADDITIONAL RESPONDENTS 7 TO 9 IMPLEADED 7

¶100

LIJITH @ KUTTAN, S/O BALACHANDRA KURUP, SEEMANTHAPURATHU VEEDU, THUMPODE, MADAVOOR, THIRUVANANTHAPURAM.

¶101

8 HARIS, S/O ALIYAR KUNJU, HARIS MANZIL, THAZHUTHALA, KOTTIYAM P.O., KOLLAM.

¶102

9 ZIYAD, S/O MUHAMMED KUNJU, SAJAD MANZIL, THUMPODE, MADAVOOR, THIRUVANANTHAPURAM.

¶103

ADDITIONAL RESPONDENTS 7 TO 9 IMPLEADED AS PER ORDER DATED 10.12.2018 IN IA NO.1 OF 2018.

¶104

BY ADVS. SRI.AJITH KRISHNAN SRI.RAJESH THOMAS SRI.S.R.AJITH SRI.T.R.HARIKUMAR

¶105

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2018, ALONG WITH M.A.C.A. NO.4279/2017, M.A.C.A. NO.4280/2017, M.A.C.A. NO.4281/2017, M.A.C.A. NO.3602/2018, M.A.C.A. NO.3603/2018 AND M.A.C.A. NO.3630/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶106

MACA.NO. 4279 OF 2017 &

¶107

¶108

CONNECTED CASES

¶109

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶110

PRESENT

¶111

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶112

MONDAY ,THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940

¶113

MACA.NO. 3602 OF 2018

¶114

AGAINST THE AWARD IN O.P.(M.V.) NO. 577/2008 OF THE MOTOR ACCIDENTS CLAIMS TRKBUNAL, ATTINGAL DATED 10-08-2018

¶115

APPELLANT/4TH RESPONDENT :

¶116

HADSON STEPHEN, KEERTHI, KAKKOTTUMOOLA, MAYYANAD P.O., KOLLAM.

¶117

BY ADVS. SRI.R.MOHANA BABU

¶118

SRI.M.AJITH (KARICODE)

¶119

RESPONDENTS/PETITIONER AND RESPONDENTS :

¶120

1 VIJI, AGED 30 YEARS, W/O.VIPIN CHAND, R.S. MANDIRAM, NJARAYILKONAM P.O., MADVOOR VILLAGE-695602.

¶121

2 D.DANIEL OTTUVILALI, PACODE, THINKKURICHI P.O., KANYAKUMARI DISTRICT, TAMIL NADU - 629 163.

¶122

3 JAYARAJAN C., LEELA VILASOM BUNGALOW, THAMPANNAMKALATHINVILA, NELLIKUZHY, NEYYATTINKARA-695121.

¶123

4 THE UNITED INDIA INSURANCE CO. LTD., ASCAR COMPLEX, PLACE ROAD, ATTINGAL-695101.

¶124

¶125

CONNECTED CASES

¶126

MACA.NO. 4279 OF 2017 &

¶127

5 LIJITH @ KUTTAN, S/O.BALACHANDRA KURUP, SEEMANTHAPURATHU VEEDU, THUMPODE, MADAVOOR, THIRUVANANTHAPURAM-695602.

¶128

6 THE NATIONAL INSURANCE CO. LTD., GANDHARI AMMAN COIL ROAD, PULIMOOD JUNCTION, THIRUVANANTHAPURAM-691101.

¶129

7 HARIS,S/O.ALIYAR KUNJU, HARIS MANZIL, THAZHUTHALA, KOTTIYAM P.O., KOLLAM-691571.

¶130

8 ZIYAD, S/O.MUHAMMED KUNJU, SAJAD MANZIL, THUMPODE, MADAVOOR, THIRUVANANTHAPURAM-695602.

¶131

BY ADV. SRI.E.M.JOSEPH

¶132

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2018, ALONG WITH M.A.C.A. NO.4279/2017, M.A.C.A. NO.4280/2017, M.A.C.A. NO.4281/2017,M.A.C.A. NO.4282/2017, M.A.C.A. NO.3603/2018 AND M.A.C.A. NO.3630/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶133

MACA.NO. 4279 OF 2017 &

¶134

¶135

CONNECTED CASES

¶136

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶137

PRESENT

¶138

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶139

MONDAY ,THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940

¶140

MACA.NO. 3603 OF 2018

¶141

AGAINST THE AWARD IN O.P.(M.V.) NO.579/2008 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ATTINGAL DATED 10-08-2018

¶142

APPELLANT/4TH RESPONDENT :

¶143

HADSON STEPHEN, AGED 67 YEARS S/O.STEPHAN, KEERTHI, KAKKOTTUMOOLA, MAYYANAD P.O, KOLLAM.

¶144

BY ADVS. SRI.R.MOHANA BABU SRI.M.AJITH (KARICODE)

¶145

RESPONDENTS/PETITIONER AND RESPONDENTS :

¶146

1 VIPIN CHAND, S/O.RADHAKRISHNAN NAIR, R.S.MANDIRAM, NJARAYILKONAM P.O., MADAVOOR VILLAGE-695602.

¶147

2 D. DANIEL OTTUVILALI, PACODE, THINKKURICHI P.O., KANYAKUMARI DISTRICT, TAMIL NADU-629 163.

¶148

3 JAYARAJAN C., LEELA VILASOM BUNGALOW, THAMPANNAMKALATHINVILA, NELLIKUZHY, NEYYATTINKARA 695 121.

¶149

4 THE UNITED INDIA INSURANCE CO.LTD, ASCAR COMPLEX, PALACE ROAD, ATTINGAL 695 101.

¶150

MACA.NO. 4279 OF 2017 &

¶151

CONNECTED CASES

¶152

¶153

5 LIJITH @ KUTTAN, S/O. BALACHANDRA KURUP, SEEMANTHAPURATHU VEEDU, THUMPODE, MADAVOOR, THIRUVANANTHAPURAM-695 602.

¶154

6 THE NATIONAL INSURANCE CO.LTD, GANDHARI AMMAN COIL ROAD, PULIMOOD JUNCTION, THIRUVANANTHAPURAM-695 101.

¶155

7 HARIS, S/O. ALIYAR KUNJU, HARIS MANZIL, THAZHUTHALA, KOTTIYAM P.O., KOLLAM-691 571.

¶156

8 ZIYAD, S/O. MUHAMMED KUNJU, SAJAD MANZIL, THUMPODE, MADAVOOR, THIRUVANANTHAPURAM-695 602.

¶157

BY ADV. SRI.E.M.JOSEPH

¶158

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2018, ALONG WITH M.A.C.A.NO.4279/2017, M.A.C.A.NO.4280/2017, M.A.C.A.NO.4281/2017, M.A.C.A.NO.4282/2017, M.A.C.A.NO.3602/2018 AND M.A.C.A.NO.3630/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶159

CONNECTED CASES 13

¶160

MACA.NO. 4279 OF 2017 &

¶161

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶162

PRESENT

¶163

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶164

MONDAY ,THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940

¶165

MACA.NO. 3630 OF 2018

¶166

AGAINST THE AWARD IN O.P.(M.V.) NO.578/2008 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL,ATTINGAL DATED 10-08-2018

¶167

APPELLANT/4TH RESPONDENT :

¶168

HADSON STEPHEN, KEERTHI, KAKKOTTUMOOLA, MAYYANAD P.O., KOLLAM.

¶169

BY ADVS. SRI.R.MOHANA BABU SRI.M.AJITH (KARICODE)

¶170

RESPONDENTS/PETITIONER AND RESPONDENTS :

¶171

1 VISHAK KRISHNA,

¶172

S/O.RADHAKRISHNAN NAIR, R.S.MANDIRAM, NJARAYILKONAM P.O., MADAVOOR VILLAGE-695 602.

¶173

2 D.DANIEL OTTUVILALI, PACODE, THINKKURICHI P.O., KANYAKUMARI DISTRICT, TAMIL NADU, PIN-629163.

¶174

3 JAYARAJAN C., LEELA VILASOM BUNGALOW, THAMPANNAMKALATHINVILA, NELLIKUZHY, NEYYATTINKARA, PIN- 695121.

¶175

4 THE UNITED INDIA INSURANCE CO.LTD., ASCAR COMPLEX, PALACE ROAD, ATTINGAL, PIN-695101.

¶176

¶177

MACA.NO. 4279 OF 2017 &

¶178

CONNECTED CASES

¶179

5 LIJITH @ KUTTAN, S/O.BALACHANDRA KURUP, SEEMANTHAPURATHU VEEDU, THUMPODE, MADAVOOR, THIRUVANANTHAPURAM, PIN-695602.

¶180

6 THE NATIONAL INSURANCE CO.LTD., GANDHARI AMMAN COIL ROAD, PULIMOOD JUNCTION, THIRUVANANTHAPURAM, PIN-695101.

¶181

7 HARIS, S/O.ALIYAR KUNJU, HARIS MANZIL, THAZHUTHALA, KOTTIYAM P.O., KOLLAM, PIN-691597.

¶182

8 ZIYAD, S/O.MUHAMMED KUNJU, SAJAD MANZIL, THUMPODE, MADAVOOR, THIRUVANANTHAPURAM, PIN-695602. BY ADV. SRI.E.M.JOSEPH

¶183

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2018, ALONG WITH M.A.C.A.NO.4279/2017, M.A.C.A.NO.4280/2017, M.A.C.A.NO.4281/2017, M.A.C.A.NO.4282/2017, M.A.C.A.NO.3602/2018 AND M.A.C.A.NO.3603/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶184

MACA.NO. 4279 OF 2017 & CONNECTED CASES

¶185

¶186

JUDGMENT

¶187

These appeals are preferred against the award in O.P. (M.V.) Nos.431 of 2008, 441 of 2008, 442 of 2008, 940 of 2010, 577 of 2008, 578 of 2008 and 579 of 2008 of the Motor Accidents Claims Tribunal, Attingal by the owner of the vehicle KL-2/D-28. On 19.05.2007 at 1.15 a.m., appellant's vehicle collided with another lorry TN-74/C-3209 at Rajeev Nagar on the Kilimanoor - Thiruvanthapuram Air Port road, as a result four persons died and claimants in O.P. (M.V.) No.577 of 2008, 578 of 2008 and 579 of 2008 sustained serious injuries. The learned Tribunal awarded compensation of Rs.3,94,600/- in O.P.(M.V.) 431/2008, Rs.5,77,000/- in O.P.(M.V) No.441/2008, Rs.5,72,405/- in O.P. (M.V.) No.442 of 2008 and Rs.17,13,520/- in O.P.(M.V.) No.940/2010 and the owner of the vehicle was directed to pay the above compensation. In O.P.(M.V.) No.577 of 2008 the learned Tribunal awarded Rs.16,500/-, in O.P.(M.V.) No.579 of 2008 Rs.1,59,780/- and in O.P.(M.V.) No.578 of

¶188

CONNECTED CASES 16

¶189

MACA.NO. 4279 OF 2017 &

¶190

2008 Rs.1,06,004/- and directed the insurer of the vehicle to pay the compensation and directed to reimburse the amount from the owner of the vehicle. Being aggrieved by that, the owner of the vehicle preferred these appeals.

¶191

It would be relevant to mention the fact of the case leading to the accident. In the lower court their claim was that on 19.05.2007, the petitioners in O.P.(M.V.) Nos.577, 578 and 579 of 2008 and the deceased in other cases were travelling in a car KL-2/D-28 from Kilimanoor to Thiruvananthapuram towards Air Port side, when they reached near G.V. Raja School, the vehicle collided with a lorry TN-74/C-3209 and the passengers sustained serious injuries and while undergoing treatment, four of them succumbed to the injuries and others sustained serious injuries. Hence, they preferred the claim petitions O.P.(M.V.) Nos.431 of 2008, 441 of 2008, 442 of 2008, 940 of 2010, 577 of 2008, 578 of 2008 and 579 of 2008. Petitioners contended that the accident was due to the rash and negligent driving of the vehicle by its driver.

¶192

CONNECTED CASES 17

¶193

MACA.NO. 4279 OF 2017 &

¶194

The owner and driver of the lorry filed written statement and contended that the accident was due to the rash and negligent driving of the car by its driver. The insurer of the lorry admitted the insurance of the vehicle. Appellant, who is the owner of the vehicle was ex parte. The insurer of the car admitted the insurance of the vehicle, but contended that there was violation of the policy conditions. It is contended that the deceased and claimants were gratuitous passengers in a private car and the insurer has no liability to indemnify the owner.

¶195

O.P.(M.V.) Nos.431/2008, 441/2008, 442/2008 and

¶196

940/2010 were tried jointly and disposed of by the lower court on 08.07.2016. In the above case, the claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A24. Copy of the policy was marked as Ext.B1. O.P.(M.V.) Nos.577 of 2008, 578 of 2008 and 579 of 2008 were tried jointly and disposed of by the Tribunal on 10.08.2018. The claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to

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MACA.NO. 4279 OF 2017 &

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CONNECTED CASES 18

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A11. Respondents evidence consist of oral testimony of RW1 and documentary evidence of Exts.B1 to A7. Exts.X1 to X3 were marked as Court exhibits. The owner and driver of the lorry filed written statement and contested the matter, but he contended that the accident was due to the rash and negligent driving of the car by its driver.

¶200

The 4^th respondent contended that he was not the owner of the car on the date of accident. On 31.01.2005, he transferred the vehicle to one Mr.Ziyad and the same was reported to the RTO, Kollam. The 4^th respondent is an unnecessary party in the proceedings. The vehicle was holding a valid insurance policy and the 6^th respondent is liable to pay compensation. Additional 7^th respondent admitted that he purchased the car from the 4^th respondent as per the sale agreement dated 31.05.2005 and he is only a broker for the sale of used vehicles. The 7^th respondent purchased the vehicle from the 4^th respondent and sold it out and he did not know the possessor of the vehicle KL2/D-28 on 19.05.2007. He contended that the vehicle was

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CONNECTED CASES 19

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MACA.NO. 4279 OF 2017 &

¶203

released by the 8^th respondent from City Traffic Police, Thiruvananthapuram and he is an unnecessary party.

¶204

Learned counsel appearing for the appellants contended that he could not appear before the lower court in O.P.(M.V.) Nos.431/2008, 441/2008, 442/2008 and 940/2010, therefore, the learned tribunal fastened liability upon him. The vehicle was transferred to 7^th respondent on 31.01.2005 hence he could not bring those facts before the Tribunal. In the circumstance, the learned Tribunal directed the appellant to pay compensation. The 7^th respondent in the other cases O.P.(M.V.) Nos.577 of 2008, 578 of 2008 and 579 of 2008 admitted that he received the vehicle from the appellant and sold it to the 8^th respondent.

¶205

Sec.147 of the Motor Vehicles Act, 1988 reads as follows:

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“147. Requirements of policies and limits of liability. -

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(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-

¶208

(a) is issued by a person who is an authorised insurer;

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and

¶210

(b) insures the person or classes of persons specified

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MACA.NO. 4279 OF 2017 &

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CONNECTED CASES 20

¶213

in the policy to the extent specified in sub-section (2)-

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(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

¶215

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

¶216

provided that a policy shall not be required-

¶217

(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee,-

¶218

(a) engaged in driving the vehicle or

¶219

(b) if it is a public service vehicle engaged as a

¶220

conductor of the vehicle or in examining tickets on the vehicle, or

¶221

¶222

(ii) to cover any contractual liability.

¶223

Explanation.- For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a

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MACA.NO. 4279 OF 2017 &

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CONNECTED CASES 21

¶226

vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.

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(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:-

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(a) save as provided in clause (b), the amount of liability incurred;

¶229

(b) in respect of damage to any property of a third party, a limit of rupees six thousand:

¶230

Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier.

¶231

(3) A policy shall be of no effect for the purposes of this Chapter unless and until there is issued by the insurer in favour of the person by whom the policy is effected a certificate of insurance in the prescribed form and containing the prescribed particulars of any condition subject to which the policy is issued and of any other prescribed matters; and different forms, particulars and matters may be prescribed in different cases.

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(4) Where a cover note issued by the insurer under the provisions of this Chapter or the rules made thereunder is not followed by a policy of insurance within the prescribed time, the insurer shall, within seven days of the expiry of

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MACA.NO. 4279 OF 2017 &

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CONNECTED CASES 22

¶235

the period of the validity of the cover note, notify the fact to the registering authority in whose records the vehicle to which the cover note relates has been registered or to such other authority as the State Government may prescribe.

¶236

(5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.”

¶237

A reading of Section 147 of the MV Act, 1988 shows that the insurer has to comply certain requirements in relation to the use of particular vehicle. They are (1) the policy must specify the persons or class of persons who are insured with respect to their liability to third parties; (2) the policy must specify the extent of liability which must extend to the extents specified in Sub-sec.(2); and (3) the liability may be incurred by the specified persons or class of persons in respect of death or bodily injury to any person caused by or arising out of the use of the vehicle insured in a public place. The person specified in policy need not necessarily be a registered owner. In clause (b) of Sub-sec.

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MACA.NO. 4279 OF 2017 &

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CONNECTED CASES 23

¶240

(1) of Sec.147, it is provided that in order to comply with the requirement under section 166, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in Sub-sec(2). This provision does not qualify that the person or classes of persons specified in the policy must be a registered owner. The insurer of the lorry and the insurer of the car admitted the insurance of both vehicles. The insurer of the car contended that they have issued only an act only policy and the liability can be fastened only upon the terms and conditions of the policy. There were 8 passengers in the car and they were gratuitous passengers.

¶241

The liability of the insurance company is only according to the premium for covering the personal accident issued in the policy. When passengers are not covered as per the policy, the insurer can take a contention that they have no liability to indemnify the owner. The owner of the vehicle has no contention with regard to the payment of additional premium to cover the personal

¶242

MACA.NO. 4279 OF 2017 &

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CONNECTED CASES 24

¶244

accident of the passengers in that vehicle. Here, the 7^th respondent admitted that he purchased the vehicle from the appellant. Even then, ignoring the sale agreement and the admission made by the 7^th additional respondent, the learned Tribunal fastened liability upon the previous owner.

¶245

Claimants did not adduce any oral evidence to prove the accident. Only on proof of rash and negligent act of the driver or drivers of the vehicle, the claimants are entitled to get compensation. Initially, the allegation was against the driver of the lorry alone, subsequently the driver of the car was found rash and negligent. Therefore, the divergent view taken by the tribunal in O.P.(M.V.) Nos.431/2008, 441/2008, 442/2008 and 940/2010 and in O.P.(M.V.) Nos.577 of 2008, 578 of 2008 and 579 of 2008 are set aside. The matter is

¶246

remitted to the Tribunal for fresh consideration and the learned Tribunal is directed to enquire the matter afresh. Both parties are at liberty to adduce oral and documentary evidence before the Tribunal to prove the rash and negligent driving and liability. Both parties are directed

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MACA.NO. 4279 OF 2017 &

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CONNECTED CASES 25

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to appear before the Tribunal on 28.02.2019.

¶250

These appeals are disposed of as above.

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Sd/- P.D. RAJAN, JUDGE

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/True Copy/ P.A. To Judge

Hadson Stephen v. Vipin Chand

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Hadson Stephen v. Vipin Chand

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