Allowed

K.Krishnadas v. K.U.Rajesh

Kerala HC6 Jun 2018MACA/433/2015

Case brief

AI extract

What is this about?

Considering a Motor Accident Claims Appeal, the High Court set aside the Tribunal's finding that the insurance policy did not cover the pillion rider, holding the insurer liable. The appeal was partly allowed to remit the quantification of compensation to the Tribunal for fresh consideration.

What did the court decide?

The appeal was allowed by setting aside the Tribunal's exemption of the insurer's liability and remitting the quantification of compensation to the Motor Accident Claims Tribunal.

K.Krishnadas Vs K.U.Rajesh — Specific Performance | 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 K.HARILAL

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WEDNESDAY, THE 6TH DAY OF JUNE 2018 / 16TH JYAISHTA, 1940

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MACA.No. 433 of 2015

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OPMV 1312/2002 of M.A.C.T.,KOZHIKODE

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APPELLANT(S)/PETITIONER

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K.KRISHNADAS S/O. SANKARAN, RESIDING AT KONNAKKAL HOUSE, NELLOOLIPADANNA, P.O.FEROKE, CHERUVANNOOR, KOZHIKODE.

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BY ADV.SMT.K.V.RESHMI

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RESPONDENT(S)/RESPONDENTS :

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1. K.U.RAJESH

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S/O. SIDHARTHAN NAIR, RESIDING AT CHAITHRAM, P.O.FEROKE,

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B.C.ROAD, CHERUVANNOOR, KOZHIKODE.

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2. BAJAJ ALLIANCE GENERAL INSURANCE CO. LTD. BAJAJ AUTO FINANCE LTD., BRANCH OFFICE, KOZHIKODE-673 032.

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R2 BY ADV. SRI.AKHIL K.MADHAV

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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scl.

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K.HARILAL, J.

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M.A.C.A. No. 433 of 2015

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Dated this the 6^th day of June, 2018

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JUDGMENT

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The appellant is the petitioner in O.P.(M.V.) No.1312 of 2002 on the files of the Motor Accidents Claims Tribunal, Kozhikode and the aforesaid original petition was filed under Section 166 of the Motor Vehicles Act claiming compensation for the injuries suffered by him in a road traffic accident.

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According to the appellant, on 22.11.2001 at about 8.15 a.m., while he was travelling as a pillion rider in a motor cycle, it capsized due to rash and negligent driving of the said motor cycle by the rider, causing serious injuries to him. It was averred that the accident was caused by the rash and negligent driving of the first respondent and thereby the first

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respondent is liable to compensate him and the second respondent is liable to indemnify the first respondent as the claim was covered by the insurance policy issued by the second respondent to the first respondent. He claimed Rs.2,00,000/- as compensation.

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M.A.C.A. No. 433 of 2015

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-2-

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The second respondent filed written statement

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admitting that the insurance policy has covered motor cycle alone, but contended that the policy will not cover the risk of a pillion rider and thereby the second respondent is not liable to indemnify the said risk. After considering the rival pleas, the Tribunal passed impugned award granting Rs.30,000/- as compensation to the appellant.

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Heard the learned counsel for the appellant and the learned counsel for the second respondent Insurance Company.

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This appeal has been filed mainly on two grounds. Firstly, it is contended that the Tribunal went wrong by finding that the claim will not be covered by the policy as the appellant is a pillion rider only. According to the appellant, the policy was a package policy covering the pillion rider also. But the Tribunal went wrong by holding that it is an act policy only and the pillion rider will not be covered by the policy. Secondly, it is contended that the Tribunal has not considered various claims under different heads of claim and passed the

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M.A.C.A. No. 433 of 2015

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-3-

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impugned award granting Rs.30,000/- only as a consolidated amount without looking into the evidence on record including Ext.C1 disability certificate.

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Per contra, the learned counsel for the second respondent Insurance Company advanced the arguments to justify the findings whereby the Tribunal exonerated the insurance company from the liability.

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The first point to be considered is, whether the Tribunal is justified in exonerating the Insurance Company. In order to substantiate the contention raised as the main ground in this appeal, the appellant has produced Annexure A, a copy of the policy issued by the Insurance Company. As rightly submitted by the learned counsel for the appellant, the policy shows that it is a package policy covering the risk of the pillion rider also. But the Tribunal has lost the sight of the said endorsement in the policy. It is discernible that the Tribunal has exonerated the Insurance Company from the liability without examining Ext.B1 policy.

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In the above view, the findings whereby the

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M.A.C.A. No. 433 of 2015

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-4-

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Insurance Company is exonerated from the liability to indemnify the first respondent in the original petition are set aside and this Court finds that the second respondent Insurance Company is liable to indemnify the first respondent by paying compensation to the appellant.

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Coming to the challenge against the quantum of compensation determined by the Tribunal, as rightly submitted by the learned counsel for the appellant, it could be seen that the Tribunal has not considered the claims under various heads of claim in the original petition and the Tribunal has not considered the documents produced along with the petition. Ext.C1 certificate shows that the appellant has 4% disability. But the Tribunal has granted Rs.30,000/- as a consolidated amount under all the heads of claim without considering the entitlement of compensation under different heads. Consequently, the quantum of compensation granted by the Tribunal will stand set aside and the original petition is remitted back to the Motor Accident Claims Tribunal, Kozhikode for fresh consideration.

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M.A.C.A. No. 433 of 2015

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It is made clear that the scope and extent of remand is confined to the quantum of compensation only and the liability fixed on the Insurance Company would stand undisturbed and operative.

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The party shall appear before the Tribunal on 9.8.2018 . Accordingly, this MACA stands allowed.

Sd/-

K.HARILAL

JUDGE

Scl/06.06.2018

K.Krishnadas v. K.U.Rajesh

Case brief

What is this about?

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K.Krishnadas v. K.U.Rajesh

Case brief

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