Allowed

Mohammed Sheriff v. Fathima Shifa @ Shifa

Kerala HC22 Jun 2018MACA/818/2015

Case brief

AI extract

What is this about?

Motor Accidents Appeals challenged a Tribunal award directing the vehicle owner to reimburse the insurer. The High Court held an autorickshaw is not a 'transport vehicle' under the Act. Consequently, the direction to reimburse the owner was set aside, and the insurer was directed to satisfy the award.

What did the court decide?

Direction to reimburse the owner from the insurer was set aside. The insurer is directed to satisfy the award.

Mohammed Sheriff Vs Fathima Shifa @ Shifa — 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.D.RAJAN

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FRIDAY, THE 22ND DAY OF JUNE 2018 / 1ST ASHADHA, 1940

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MACA.No. 818 of 2015

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O.P(MV)NO. 304/2012 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, TIRUR

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APPELLANT(S)/1ST RESPONDENT :

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MOHAMMED SHERIFF, S/O.KOYA, AGED 40 YEARS, KANAKKASSERY HOUSE, KUTTIPPURAM POST, MALAPPURAM DISTRICT.

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BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA SRI.S.KANNAN

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RESPONDENT(S)/CLAIM PETITIONER AND RESPONDENTS 2 AND 3:

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1. FATHIMA SHIFA @ SHIFA,

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D/O. SALIM M, MINOR, AGED 12 YEARS, REPRESENTED BY HER MOTHER FEMINA, MADATHIL HOUSE, MALLOORKADAVU, KUTTIPURAM P.O., MALAPPURAM - 676 551.

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2. SALIM, AGED 32 YEARS, S/O. KUNHI MOHAMMED.M., MADATHIL HOUSE, MALLOORKADAVU, KUTTIPURAM P.O., MALAPPURAM DISTRICT- 676 551.

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3. UNITED INDIA INSURANCE COMPANY LIMITED, PEEVEES BUILDING, KUTTIPURAM ROAD, POST VALANCHERI, MALAPPURAM DISTRICT - 676 552.

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R1 BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU R3 BY ADV. SRI.N.S.MOHAMMED USMAN BY SRI.JOHN JOSEPH VETTIKAD

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-06-2018, ALONG WITH MACA NO.862 OF 2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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25.07.2018

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MACA.No. 818 of 2015

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APPENDIX

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PETITIONER(S)' ANNEXURES :

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ANNEXURE A1: CERTIFIED EXTRACT OF DRIVING LICENSE PARTICULARS OF THE SECOND RESPONDENT SALEEM ISSUED FROM THE SUB REGIONAL TRANSPORT OFFICE, TIRUR.

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RESPONDENT(S)' ANNEXURES :

NIL

//TRUE COPY//

P.S.TO JUDGE

Msd. 25.07.2018

P.D.RAJAN, J

- - - - - - - - - - - - - - - - - - - M.A.C.A Nos.818 & 862 of 2015

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- - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22^nd day of June, 2018

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JUDGMENT

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These appeals are preferred against the award in O.P(MV) No.304/2012 & 305/2012 of the Motor Accidents Claims Tribunal, Tirur by the owner of the vehicle. The learned Tribunal awarded Rs.1,08,000/- in O.P(MV) No.304/2012 and Rs.28,100/- in O.P(MV) No.305/2012 as compensation with 9% interest and proportionate cost and directed the insurer to satisfy the award and recover the amount from the owner of the vehicle. Being aggrieved by that direction, the owner preferred these appeals.

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In the lower court, there was no dispute with regard to the accident. The claimant's case in both cases was that they were travelling in an autorickshaw KL-10-K-5751 through the Bypass Junction, Kuttippuram and when they reached at the place of occurrence, the vehicle hit on the back side of a stationary Lorry. The owner of the vehicle raised a contention that the vehicle

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M.A.C.A Nos.818 & 862 of 2015

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-2-

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was sold to one Sunil. The third respondent admitted the insurance of the vehicle, but contended that the driver was holding no valid driving licence at time of accident. The second respondent driver was set ex-parte. Claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A13 and Ext.C1. Respondents document was marked as Ext.B1.

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The learned counsel appearing for the appellant contended that the driver was holding valid driving licence at the time of accident. Ext.A9 is the copy of the driving licence, but the learned Tribunal failed to appreciate the validity of the driving licence. In this context, I have examined Annexure A1 (Ext.A9), which is the certified copy of the driving licence issued by the Motor Vehicle Inspector, Tirur, which shows that the driver was holding three wheeler licence from 2000 to 2020 and badge from 2014 to 2017. If that be the position, there was no badge on 14.05.2010, the date of accident.

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An autorikshaw is a motor cab. According to Section 2(25) says that any motor vehicle constructed

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M.A.C.A Nos.818 & 862 of 2015

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to adapted to carry not more than six passengers excluding the driver for hire or reward is a “motorcab”. According to Section 2(35) motorcab is also a public service vehicle adapted to be used for the carriage of passengers for hire or reward. According to Section 2(17) “heavy passenger motor vehicle” means any public service vehicle or private service vehicle or educational institution bus or omnibus the gross vehicle weight of any of which, or a motor car the unladen weight of which, exceeds 12,000 kilograms. According to Section 2(47) “transport vehicle” means a public service vehicle, a good carriage, an educational institution bus or a private service vehicle.

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Apex court in Mukund Dewangan v.

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Oriental Insurance Company Ltd [2017(3) KLT 1000

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(SC)] held as follows:

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“The newly incorporated expression 'transport vehicle' in S.10(2)(e) would include only the vehicles of the category as defined in S.2(16)-heavy goods vehicle, S.2(17)-heavy passenger motor vehicle, S.2(23)- medium goods vehicle and S.2(24) medium

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M.A.C.A Nos.818 & 862 of 2015

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passenger motor vehicle, and would not include the 'light motor vehicle' which means transport vehicle also of the weight specified in S.2(21).”

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If that be the position, in view of the the decision of the apex court in Mukund Dewangan (supra), the transport vehicle include only the vehicles of the category as defined in under Section 2(16), 2(17) and heavy goods vehicle, heavy passenger vehicle, medium goods vehicle and medium passenger vehicle and would not include the light motor vehicle. If that be the position, the direction to reimburse the amount from the owner is hereby set aside. The insurer is directed to satisfy the award of the Tribunal and these appeals are disposed of as above.

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Sd/- P.D.RAJAN JUDGE

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bng

Mohammed Sheriff v. Fathima Shifa @ Shifa

Case brief

What is this about?

What did the court decide?

Mohammed Sheriff v. Fathima Shifa @ Shifa

Case brief

What is this about?

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