Allowed

K.Anilkumar v. Managing Director, Tamil Nadu State Transport Corporation

Kerala HC30 Oct 2019RP/540/2013

Case brief

AI extract

What is this about?

Review petitions filed against a judgment disposing of appeals in Motor Vehicle Accident Claims allowed. The High Court held that a factual omission to notice amended prayer portions impleading additional respondents (owner, driver, insurer) constituted an error apparent on the face of the record, recalling the prior judgment.

What did the court decide?

Review petitions allowed; judgment dated 11-02-2013 recalled; matter posted for hearing in accordance with roster.

K.Anilkumar Vs Managing Director, Tamil Nadu State Transport Corporation — Kerala HC (2019) — LawSathi Research

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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 A.HARIPRASAD

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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WEDNESDAY, THE 30TH DAY OF OCTOBER 2019 / 8TH KARTHIKA, 1941

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RP.No.540 OF 2013 IN MACA. 2614/2008

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AGAINST THE JUDGMENT DATED 11-02-2013 IN MACA 2614/2008 OF HIGH COURT OF KERALA.

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st REVIEW PETITIONER/1 RESPONDENT/CLAIMANT :

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K.ANILKUMAR, SANKARAVILASOM, MULLARIKONAM, PERUMPAZHUTHOOR.P.O., THIRUVANANTHAPURAM.

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BY ADV. SRI.K.T.SHYAMKUMAR.

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RESPONDENTS/APPELLANTS AND RESPONDENTS 2 TO 5/RESPONDENTS IN O.P(M.V) :

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1 MANAGING DIRECTOR, TAMIL NADU STATE TRANSPORT CORPORATION KUMBAKONAM)LTD, KAAIKUDI, TAMILNADU. PIN-606 088.

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*** 2 ERAVI, (DELETED) S/O.GANESAN, HOUSE NO.14, BHARATI STREET, PERIYAPURAM KEEZHADI POST, SIVAGIRI DISTRICT, TAMILNADU. PIN-606 088. (DELETED)**

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Review Petition Nos.540 & 541 of 2013

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M.A.C.A Nos.2614 & 2860 of 2008 2

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3 R.GOPALAKRISHNAN NAIR KURICHIVILA VEEDU, CHENKAL.P.O., NEYYATTINKARA. PIN-695 121.

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4 K.APPUKUTTAN NAIR, (DELETED) S/O.KUNJAN ASARI, KALLAMPOTTA MARKUDI VEEDU, KARODE, PARASSALA. PIN-695 502. (DELETED)

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(RESPONDENTS 2 AND 4 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 26/9/19 IN IA 1/19 IN RP 540/13 IN MACA 2614/2008).

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5 THE NATIONAL INSURANCE COMPANY, DIVISIONAL OFFICE, THIRUVANANTHAPURAM, REPRESENTED BY ITS DIVISIONAL MANAGER. PIN - 695 001.

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R1 BY ADV.SRI.SUBHASH CYRIAC, S.C R3 BY ADV. SRI.P.RAMACHANDRAN R5 BY ADV.SRI.LAL GEORGE, S.C

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THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 30.10.2019, ALONG WITH RP.541/2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Review Petition Nos.540 & 541 of 2013

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M.A.C.A Nos.2614 & 2860 of 2008 3

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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 A.HARIPRASAD

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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WEDNESDAY, THE 30TH DAY OF OCTOBER 2019 / 8TH KARTHIKA, 1941

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RP.No.541 OF 2013 IN MACA. 2860/2008

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AGAINST THE JUDGMENT DATED 11-02-2013 IN MACA 2860/2008 OF HIGH COURT OF KERALA.

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REVIEW PETITIONER/1ST RESPONDENT/CLAIMANT :

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P.G.SREEKUMAR, KURICHIVILA VEEDU, CHENKAL.P.O., NEYYATTINKARA.

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BY ADV. SRI.K.T.SHYAMKUMAR.

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RESPONDENT/APPELLANT AND RESPONDENTS

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2 TO 5/RESPONDENTS IN O.P (M.V) :

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1 MANAGING DIRECTOR, TAMIL NADU STATE TRANSPORT CORPORATION, (KUMBAKONAM)LTD, KAAIKUDI, TAMILNADU. PIN-606 088.

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2 ERAVI, (DELETED) S/O.GANESAN, HOUSE NO.14, BHARATI STREET, PERIYAPURAM KEEZHADI POST, SIVAGIRI DISTRICT, TAMILNADU. PIN-606 088.

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3 R.GOPALAKRISHNAN NAIR, KURICHIVILA VEEDU, CHENKAL.P.O., NEYYATTINKARA. PIN-695 121.

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Review Petition Nos.540 & 541 of 2013

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M.A.C.A Nos.2614 & 2860 of 2008 4

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4 K.APPUKUTTAN NAIR (DELETED) S/O.KUNJAN ASARI, KALLAMPOTTA MARKUDI VEEDU, KARODE, PARASSALA. PIN-695 502.

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(RESPONDENTS 2 AND 4 ARE DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 26/9/19 IN IA 1/19 IN RP 541/13 IN MACA 2860/2008).

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5 THE NATIONAL INSURANCE COMPANY DIVISIONAL OFFICE, THIRUVANANTHAPURAM, REPRESENTED BY ITS DIVISIONAL MANAGER. PIN-695 001.

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R1 BY ADV.SRI.SUBHASH CYRIAC, S.C R3 BY ADV. SRI.P.RAMACHANDRAN R5 BY ADV.SRI.LAL GEORGE, S.C

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THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 30.10.2019, ALONG WITH RP.540/2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Review Petition Nos.540 & 541 of 2013 in M.A.C.A Nos.2614 & 2860 of 2008 5

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A.HARIPRASAD & N.ANILKUMAR, J J.

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Review Petition Nos.540 & 541 of 2013 in

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M.A.C.A Nos.2614 & 2860 of 2008

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Dated this the 30th day of October, 2019

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C O M M O N O R D E R

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A.HARIPRASAD, J

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Heard the learned counsel for the review petitioners and the

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learned Standing Counsel for the National Insurance Company. We heard

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the learned Standing Counsel for Tamil Nadu State Transport Corporation

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also.

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This Court by judgment dated 11-02-2013 disposed of the

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captioned appeals filed by the Managing Director, Tamil Nadu State

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Review Petition Nos.540 & 541 of 2013

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in M.A.C.A Nos.2614 & 2860 of 2008 6

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Transport Corporation challenging the judgment and decree in O.P (M.V)

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Nos.415 and 416 of 2001 of M.A.C.T, Neyyattinkara. In paragraphs 14

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and 15 of the judgment, this Court made the following observations :

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“14. Learned counsel for first respondent/injured vehementally contended that if the appellant is exonerated from the liability to pay compensation,

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respondents 3 to 5 may be directed to pay compensation to the claimants by holding that this is case of composite negligence. Learned counsel for fifth respondent insurer vehementally argued that such an order cannot be passed since no claim was made against the driver or owner of the maruti van. It is also contended that as per the claim petition claimants did not make any claim against the driver of the maruti van and it is also specifically stated that the driver of the maruti van was driving cautiously observing the traffic rules

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Review Petition Nos.540 & 541 of 2013 in M.A.C.A Nos.2614 & 2860 of 2008 7

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and regulations in a normal speed. As per the claim petition itself, the driver and owner of the maruti van have not allegedly contributed to the accident and hence they are not liable to pay compensation.

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On going through the averments in the petition, it is clear that no allegation is made against the driver, owner or insurer of the maruti van that they are liable to pay compensation to the claimants. There is absoloutely no whisper in the petition that respondents 3 to 5 are liable to pay compensation to the claimants or that they were negligent. Learned counsel for the appellant however argued that driver, owner and insurer of the maruti van were impleaded as additional respondents and they were in the party array and hence award may be passed against respondents 3

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to 5.”

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Review Petition Nos.540 & 541 of 2013 in M.A.C.A Nos.2614 & 2860 of 2008 8

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After considering some precedents in paragraph 24, following

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aspects have been mentioned in the judgment :

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“24. We are unable to accept the above decisions

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and also the argument that in a claim petition filed under Section 166 of the Motor Vehicles Act claimants are not liable to establish the liability of the respondents by pleading and proving the negligent act of the driver of the offending vehicle. Even otherwise, there is absolutely no prayer to direct respondents 3 to 5 to pay compensation. It is also pertinent to note that even though respondents 3 to 5 were impleaded as additional respondents, the body of the petition was not amended and no allegation is made in the petition that the accident happened due to any negligent act on the side of the additional fourth respondent, who is the driver of the maruti van. Basically,

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Review Petition Nos.540 & 541 of 2013

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M.A.C.A Nos.2614 & 2860 of 2008 9

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there is no allegation in the petition that as to how

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the driver, owner or insurer of the maruti van is

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liable to pay compensation.”

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Learned counsel for the review petitioners contended that this

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Court omitted to consider the fact that prayer portions in the claim petitions were amended by impleading the owner, driver and insurer of the

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Maruti van bearing Registration No.KL 01-F 8020 involved in the accident

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and claimed compensation from the additional respondents as well.

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Two applications were filed for amendment of the claim

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petitions as I.A No.1241 of 2004 in O.P(M.C) No.415 of 2001 and I.A

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No.4005 of 2004 in O.P(M.V) No.416 of 2001. Both the applications were

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allowed by the Tribunal. But that fact was over looked by this Court when

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the judgment was pronounced in these cases. That was why the

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aforementioned observations happened to be made.

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Review Petition Nos.540 & 541 of 2013

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M.A.C.A Nos.2614 & 2860 of 2008 10

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Learned Standing Counsel for the Insurance Company

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contended that there are no consequential amendments in Clause 28 of the

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claim petitions seeking imposition of liability on the owner, driver and

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insurer of the Maruthi van. In answer to this contention, learned counsel

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for the review petitioners contended that this being a social welfare

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legislation, rigid technicality regarding pleadings shall not be insisted. Not

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only that, there are sufficient materials in the petitions and evidence to

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show that the petitioners have claimed compensation from all the respondents jointly and severally.

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Having regard to the contentions raised in the petitions and

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the submissions at the Bar, we are of the view that the factual omission to

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notice the scope of amendments and legal effect of them constitute an error

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apparent on the face of the judgment. Therefore, we are inclined to allow

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the review petitions.

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Review Petition Nos.540 & 541 of 2013

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in M.A.C.A Nos.2614 & 2860 of 2008 11

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In the result, the review petitions are allowed.

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Judgment dated 11-02-2013 in the captioned appeals are

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hereby recalled. The Registry shall post the matters for hearing in

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accordance with the roster. It is made clear that we have not made any observation regarding the merits of the case.

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All pending interlocutory applications will stand closed.

A. HARIPRASAD,

JUDGE.

N.ANILKUMAR,

JUDGE

amk

K.Anilkumar v. Managing Director, Tamil Nadu State Transport Corporation

Case brief

What is this about?

What did the court decide?

K.Anilkumar v. Managing Director, Tamil Nadu State Transport Corporation

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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