Allowed

The New India Assurance Company Limited v. v.Vijayakumar

Kerala HC1 Oct 2020MACA/471/2008

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the appeal by the insurer and permitted it to deposit the full compensation awarded to the injured petitioner. The court held that while all respondents were jointly and severally liable, the insurer had the right to recover 25% of the total amount paid from the fourth respondent as a junior co-accused.

What did the court decide?

Appellant permitted to deposit entire compensation and recover 25% of the amount from the fourth respondent.

The New India Assurance Company Limited Vs v.Vijayakumar — Motor Accident Claims | Kerala HC (2020)

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MACA 471 OF 2008

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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 C.S.DIAS

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THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942

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MACA.No.471 OF 2008

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AGAINST THE AWARD IN OPMV 248/2000 DATED 05-07-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY

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APPELLANT/S:

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THE NEW INDIA ASSURANCE COMPANY LIMITED KANNUR NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.

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BY ADVS.

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SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW

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RESPONDENT/S:

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1 V.VIJAYAKUMAR S/O. NANU NAIR,VENADAN HOUSE, CHIRAKKAL P.O.,

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KANNUR-11.

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2 MANDEN RAJESH

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S/O. PADMANABHAN,MANDEN HOUSE, ARAYAMBETH,

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CHIRAKKAL P.O.,KANNUR-11.

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3 THE ORIENTAL INSURANCE COMPANY LIMITED

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DIVISIONAL OFFICE, NEAR S.N.PARK ROAD, KANNUR., (NO RELIEFS ARE CLAIMED AGAINST RESPONDENTS 1 and 2, IN THE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL)

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R1 BY ADV. SRI.M.V.AMARESAN R1 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA R1 BY ADV. SRI.V.N.RAMESAN NAMBISAN R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 1.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA 471 OF 2008

C.S.DIAS, J.

====================== MACA No.471 of 2008 ====================== Dated this the 1^st day of October, 2020.

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JUDGMENT

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The appellant – Insurance Company - was the third respondent in OP (MV) No.248 of 2000 on the file of the Motor Accidents Claims Tribunal, Thalassery. The first respondent in this appeal was the petitioner and the respondents 2 and 3 were the respondents 4 and 5 before the Tribunal. The respondents 1 and 2 in the claim petition, owner and driver of the offending vehicle, have not been impleaded as parties in the appeal because the appellant admitted the insurance policy. The parties are, for the sake of convenience, referred to as per their status in the claim petition.

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The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988,

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MACA 471 OF 2008

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claiming compensation of Rs.5,00,000/- for the injuries that he sustained in a motor accident that took place on 10.10.1999, while he was riding pillion on a motor cycle bearing registration No.KL13/E-532. The motor cycle was hit by a jeep bearing registration No.KA-21/M-1047, which was driven by the second respondent, owned by the first respondent and insured with the third respondent.

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The Tribunal by the impugned award found that there was composite negligence on the part of the respondents 2 and 4 and held that the petitioner is allowed to realise an amount of Rs.1,52,000/- with 7% interest and cost from the respondents 1 to 4 jointly and severally. The third respondent/appellant was directed to pay the compensation amount to the petitioner. However, there was no direction/observation in the award enabling the third respondent to recover the compensation amount from the other respondents.

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Heard the learned counsel appearing for

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MACA 471 OF 2008

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the appellant/third respondent and the learned counsel appearing for the third respondent/fifth respondent.

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The learned counsel appearing for the appellant submitted that he was confining his arguments to the sole question that the appellant is entitled to recover 25% of the compensation amount from the fourth respondent.

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Therefore, the sole question that emerges for consideration in this appeal is whether the appellant is entitled to pay and recover 25% of the compensation amount from the fourth respondent.

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The Tribunal after evaluating the pleadings and materials on record, by the impugned award, arrived at a conclusion that the accident occurred due to the negligence on the part of the respondents 2 and 4. Accordingly, the Tribunal held that the petitioner is entitled to realise the compensation amount with interest and proportionate cost from the respondents 1 to 3 and supplementary fourth respondent, jointly and

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MACA 471 OF 2008

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severally. Other than for the third

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respondent/appellant, none of the other respondent have assailed the impugned award. Thus, the findings in the impugned award have become final and conclusive as against the petitioner and respondents 1, 2 and 4.

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Undisputedly, the appellant is the insurer of the offending vehicle. Therefore, it is the appellant who is liable to indemnify the respondents 1 and 2. Although the Tribunal has found the respondents 1 to 4 are jointly and severally liable to pay the compensation, the Tribunal omitted to mention to what extent each of the respondents are liable to pay the compensation. Nevertheless, in view of the finding that all four respondents are liable, their liability is to be equally divided. Thus, I hold that the fourth respondent is liable to pay 25% of the total compensation payable to the petitioner.

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In the result, I allow this appeal by permitting the appellant to deposit the entire

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MACA 471 OF 2008

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compensation amount along with interest at the rate of 7% per annum from the date of petition till the date of realisation with proportionate cost as directed in the impugned award, within a period of sixty days from the date of receipt of a certified copy of this judgment, and recover 25% of the total amount paid as compensation from the fourth respondent in OP(MV) 248/2000. Needless to mention that, if the appellant has complied with the order dated 9.6.2008 passed by this Court to deposit 50% of the compensation amount, then the appellant need only deposit the balance amount. It is also made clear that, on such deposit, the petitioner/first respondent in the appeal, would be at liberty to withdraw the entire amount deposited, in accordance with law.

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Sd/-

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C.S.DIAS JUDGE

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SKS/1.10.2020

The New India Assurance Company Limited v. v.Vijayakumar

Case brief

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The New India Assurance Company Limited v. v.Vijayakumar

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