Allowed

Susamma Abraham v. P.v.Varghese

Kerala HC9 Nov 2018OP (MAC)/8/2015

Case brief

AI extract

What is this about?

The High Court, exercising writ jurisdiction under Art. 226, set aside an order of the Motor Accidents Claims Tribunal which dismissed a petitioners application to amend a claim petition to reflect the death of the deceased due to accident injuries. The court allowed the amendment on costs, emphasizing the benevolent nature of the Motor Vehicles Act and directing the tribunal to expedite the trial

What did the court decide?

The order dismissing the amendment application is set aside; the amendment application is allowed on payment of costs of Rs.5,000 to the insurer; the tribunal is directed to dispose of the claim petit

Susamma Abraham Vs P.v.Varghese — 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 ANIL K.NARENDRAN

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FRIDAY,THE 09TH DAY OF NOVEMBER 2018 / 18TH KARTHIKA, 1940

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OP (MAC).No.8 of 2015

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AGAINST THE ORDER DATED 31.12.2014 IN OP(MV)NO.1552/2004 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA

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PETITIONERS/PETITIONERS 2 & 4 IN OPMV:

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1 SUSAMMA ABRAHAM AGED 59 YEARS

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W/O.LATE T.A.ABRAHAM, THEKKEDATHU HOUSE, POOMALA P.O., PENNUKKARA NORTH, ALA VILLAGE CHENGANNUR TALUK, PIN - 689 520.

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2 LEENA ABRAHAM AGED 32 YEARS

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D/O.LATE T.A.ABRAHAM, THEKKEDATHU HOUSE, POOMALA P.O., PENNUKKARA NORTH, ALA VILLAGE, CHENGANNUR TALUK PIN - 689 520.

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BY ADV. SRI.N.ASHOK KUMAR

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RESPONDENTS/RESPONDENTS 1 TO 3 AND 3RD PETITIONER:

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1 P.V.VARGHESE (AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER) PATTARUMADATHIL, VALLAMALA, KUNNAMTHANAM,MALLAPPALLY, PATHANAMTHITTA DISTRICT, PIN - 689 581.

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2 P.V.MANOJ (AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER)PATTARUMADATHIL, VALLAMALA, KUNNAMTHANAM, MALLAPPALLY, PATHANAMTHITTA DISTRICT.PIN - 689 581.

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3 THE MANAGER NEW INDIA ASSURANCE CO.LTD., KAYAMKULAM,PIN - 690 502.

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O.P.(MAC) No.8/2015

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4 LIJI ABRAHAM AGED 34 YEARS (D/O.LATE T.A.ABRAHAM, THEKKEDATHU HOUSE, POOMALA P.O., PENNUKKARA NORTH, ALA VILLAGE, CHENGANNUR TALUK, PIN - 689 520.

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BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN

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THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 09.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

O.P.(MAC) No.8/2015

JUDGMENT

The petitioners and the fourth respondent are the legal heirs of one T.A.Abraham, who sustained serious injuries in a motor accident, which occurred on 06.05.2004, near Kanjirathummoodu Junction on Chengannur-Kodukulanji Public Road, involving a mini lorry bearing registration No.KL-03/E9313, owned and driven by respondents 1 and 2 herein respectively and insured with the third respondent Insurance Company. At the time of accident, T.A.Abraham was riding a scooter bearing registration No.KL-04/4695. In the accident, he sustained serious injuries . Going by the averments in the claim petition, at the time of his discharge from hospital on 07.07.2004, he was on oral feeds with supplementation through nasigastric tube. The injured along with the first petitioner herein, who is his wife, filed O.P.(MV)No.1552 of 2004 before the Motor Accidents Claims Tribunal, Mavelikara, under Section 166 of the Motor Vehicles Act, 1988 claiming a total compensation of Rs.9,45,000/-, together with interest at the rate of 9% per annum from the date of petition, from respondents 1 to 3 herein. In the claim petition, the first petitioner herein is arrayed as the second petitioner, as the wife

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O.P.(MAC) No.8/2015

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and next friend of T.A.Abraham. During the pendency of O.P. (MV)No.1552 of 2004, T.A.Abraham died on 03.07.2006 and his children, the second petitioner and the additional fourth respondent herein, are impleaded as additional petitioners 3 and 4.

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The petitioners and the fourth respondent moved I.A.No.1860 of 2014, under Order VI Rule 17 of the Code of Civil Procedure, 1908 seeking an order to amend the claim petition. A copy of the said interlocutory application is placed on record as Ext.P2. The third respondent insurer opposed the said application by filing Ext.P3 objections. The Tribunal by Ext.P4 order dated 31.12.2014 dismissed I.A.No.1860 of 2014, which is under challenge in this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

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On 23.01.2015, when this original petition came up for admission, this Court admitted the matter on file and issued notice to respondents 1 to 4 by speed post. On 03.02.2015, this Court granted an interim stay of final disposal of O.P.(MV) No.1552 of 2004 pending beore the Motor Accidents Claims Tribunal, Mavelikara.

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Heard the learned counsel for the petitioners and also

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O.P.(MAC) No.8/2015

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the learned Standing Counsel for the third respondent Insurance Company. Despite service of notice, none appears for respondents 1 and 4. Notice issued to the second respondent returned with an endorsement 'not known'. The second respondent is the driver of the mini lorry. Since service of notice is complete on the first respondent, who is the owner of the mini lorry and the insurer of that vehicle is also represented by the learned Standing Counsel, service of notice on the second respondent is dispensed with.

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In the affidavit accompanying to I.A.No.1860 of 2014, the application filed under Order VI Rule 17 of the Code for amending Ext.P1 claim petition in O.P.(MV)No.1552 of 2004, it is averred that T.A.Abraham who sustained severe head injury in the motor accident occurred on 06.05.2004 was crippled by the accident and was lying unconscious in a comma stage till his death, who succumbed to injuries on 03.07.2006. In the event of his death, due to the impact of the accident, the claim petition requires to be amended for claiming compensation on account of his death.

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The third respondent insurer opposed the aforesaid interlocutory application by filing Ext.P3 objection, wherein it was contended that T.A.Abraham died after four years from the

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O.P.(MAC) No.8/2015

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date of accident due to heart attack and there is absolutely no medical records to prove that his death was due to the injuries sustained in the motor accident. The third respondent contended that the amendment sought for will change the nature and structure of the claim petition and that such an application cannot be filed after 10 years from the date of the accident; that also after the claimants' evidence is over, and the matter was partly heard by the Tribunal.

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The Tribunal in Ext.P4 order found that T.A.Abraham was critically ill and was bed-ridden from the very date of accident and as per medical records at the time of discharge, he was on oral feeds with supplementation through nasogastric tube and external urinary drainage. He was re-admitted in the hospital, as per medical records. The Tribunal noticed that there is only a very vague averment that T.A.Abraham sustained severe injuries and later succumbed to injuries. Therefore, taking note of the objections raised by the third respondent insurer that he died due to heart attack, the Tribunal dismissed I.A.No.1860 of 2014 by Ext.P4 order. In the said order it is stated that, considering the aforesaid fact and also the fact that there is inordinate delay in filing the interlocutory application, that too in the absence of medical records, the same cannot be

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entertained, especially since the evidence has begun in the year 2014.

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Having considered the submissions made by the learned counsel on both sides, this Court finds that the fact that in the accident, which occurred on 06.05.2004, T.A.Abraham sustained serious injuries and he was bed-ridden from the very date of accident is not in dispute. Ext.P1 claim petition, which is one filed in December, 2004 was one filed through the first petitioner herein, she being the wife and next friend.

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The provisions contained in Chapters X to XII of the motor vehicles Act, 1988 is a benevolent legislation aimed at providing relief to victims of motor accidents, and in death cases to their legal representatives. It is now well settled that court should not succumb to the procedural wrangles and tangles, hyper technicalities and niceties. The effort should be to adduce the cause of justice and settle the dispute once for all. In

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N.K.V.Bros.(P)Ltd. v. Karumai Ammal [(1980) 3 SCC 457]

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the Apex Court held that the court should not succumb to niceties, technicalities and mystic maybes.

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Going by Rule 395 of the Kerala Motor Vehicles Rules, 1989, the provisions under Rules 16 to 18 of Order VII of the Code are made applicable to the proceedings before the Motor

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Accidents Claims Tribunal. Sub-rule (1) of Rule 379 enjoins framing of issues before evidence is recorded and sub-rule (2) of Rule 379 permits amendment or deletion of issues already framed or to frame additional issues on such terms as the Tribunal thinks fit.

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The question as to whether the claimants in O.P. (MV)No.1552 of 2004 are entitled to claim compensation on account of the death of T.A.Abraham depends upon the evidence to be let in during trial, to prove that he died due to the injuries sustained in the motor accident which occurred on 06.05.2004. The said fact has to be established based on medical records and the evidence of medical experts. Considering the nature of injuries sustained and also the physical condition of the injured after the accident, the Tribunal ought to have allowed the application for amendment, on imposing costs, instead of dismissing the same on the ground of delay, lack of pleadings, etc., especially when, as per the provisions of sub-section (4) of Section 166 of the Motor Vehicles Act, the Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under the said Act.

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In such circumstances, the original petition is

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O.P.(MAC) No.8/2015

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disposed of by setting aside Ext.P4 order dated 31.12.2014 of the Motor Accidents Claims Tribunal, Mavelikara, in I.A.No.1860 of 2014 in O.P.(MV)No.1552 of 2004 and the said interlocutory application is allowed as prayed for, however, on payment of a cost of Rs.5,000/- (Rupees Five Thousand only) payable to the 3^rd respondent Insurance Company, which shall be paid within a period of two weeks from the date of receipt of a certified copy of this judgment. The Tribunal shall proceed with the matter, after affording the respondents in the claim petition an opportunity to file additional written statement. Both sides shall also be afforded with an opportunity to adduce additional evidence, both oral and documentary.

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Since, the claim petition is of the year 2004, the Tribunal shall finally dispose of the same, as expeditiously as possible, at any rate within three months from the date of receipt of a certified copy of this judgment.

Sd/- JUDGE

O.P.(MAC) No.8/2015

APPENDIX

PETITIONERS' EXHIBITS:

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EXHIBIT P1 TRUE COPY OF ORIGINAL PETITION NUMBERED AS O.P(MV) 1552/04 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA.

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