Allowed

Rahim Kutty v. the Divisional Manager, New India Assur

Kerala HC8 Mar 2021MACA/1616/2010

Case brief

AI extract

What is this about?

The Kerala High Court allowed the appeal by the driver-appellant and set aside the Motor Accidents Claims Tribunal's award. The court remanded the original petition to the Tribunal to bring the real insurer, National Insurance Co. Ltd., on record and determine liability based on the valid policy, as the wrong insurer had been impleaded previously.

What did the court decide?

Impugned award set aside; Original Petition remanded to MACI, Kollam for reconsideration with real insurer impleaded as second respondent and fresh award passed within two months.

Rahim Kutty Vs the Divisional Manager, New India Assur — Motor Accident Claims | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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MONDAY, THE 08TH DAY OF MARCH 2021 / 17TH PHALGUNA, 1942

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MACA.No.1616 OF 2010(C)

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AGAINST THE AWARD IN O.P(M.V) No.851/2004 DATED 13-03-2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM.

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APPELLANT/1ST RESPONDENT:

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RAHIM KUTTY, KEELEMPATHUVILA(KADUMBATTUVILA VEEDU), MUTTACKAVU, NEDUMPANA, KOLLAM.

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BY ADV. SRI.PRATHEESH.P

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RESPONDENTS/RESPONDENT NO.2/PETITIONER:

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1 THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO.LTD, KOLLAM. 691001

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2 RAMACHANDRAN PILLAI, AGED 52 YEARS S/O.PARAMESWARAN PILLAI, SHINI HOUSE, MUTTACKAVU, NEDUMPANA 691580.

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*3 ADDL. R3. THE MANAGER, M/S.NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE, PARAMESWARAN PILLAI BHAVAN, KOLLAM - 691 001.

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***(ADDITIONAL R3 IMPLEADED VIDE ORDER DATED 01.02.2019 IN I.A 1 OF 2018 IN MACA 1616/2010)**

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R1 BY ADVS. SRI.M.JACOB MURICKAN

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SRI. K.SIJU R3 BY ADV. N.S.NAJEEB

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.No.1616/2010(C) 2

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JUDGMENT

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Dated this the 08^th day of March, 2021

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This appeal is directed against an award passed by

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Motor Accidents Claims Tribunal, Kollam on 13.03.2008 in O.P(M.V) No.851/2004.

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For the sake of clarity, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 and 2 in accordance with their status in the Original Petition.

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In the award under challenge, the Tribunal has awarded a compensation of Rs.1,28,300/-(Rupees one lakh twenty Eight Thousand and Three Hundred only) and directed the 1^st respondent to pay the same with interest at the rate of 7.5% per annum from 08.07.2004, the date of the claim petition till the date of realization. Aggrieved thereby, the 1^st respondent is now before this Court in the appeal on hand.

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Sri.Pratheesh P., the learned counsel for the 1^st respondent contended that he was the owner cum driver of the offending vehicle at the relevant time of accident and since notice was not served on him from the Tribunal, he remained ex parte to

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MACA.No.1616/2010(C) 3

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the proceedings. The offending vehicle belonging to him was insured with National Insurance Company Ltd., Kollam and it has a valid insurance at the time of accident. The real insurer was not impleaded as the respondent in the petition seeking compensation. New India Assurance Company Ltd. was brought on record as the 2^nd respondent mistakenly by the petitioner and based on its stand in the written statement filed that the offending vehicle was not insured with them, it was exonerated by the Tribunal from liability to indemnify the 1^st respondent insured. In the above context, liability to pay compensation awarded was fixed on the 1^st respondent himself. It is contended by the learned counsel that in the police records relating to the motor accident in question policy number shown in the petition seeking compensation was that of vehicle bearing Registration No.KL-2N/1573, in which, the petitioner was travelling at the relevant time of accident.

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The policy number of the vehicle with registration No.KL2N/1573 in which the petitioner was traveling at the relevant time was shown as the policy number of the offending vehicle and therefore the petitioner was misled and impleaded National Insurance Company Ltd as the insurer of the offending vehicle in the petition seeking compensation. According to the 1^st

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MACA.No.1616/2010(C) 4

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respondent, if the real insurer was shown in the array of the respondents liability to compensate the petitioner would not have been fixed on him rather the liability would have been fixed on the insurer to indemnify him. Accordingly, the learned counsel has sought for setting aside the award and to pass a fresh award after getting the real insurer into the array of respondents. By virtue of the order passed on 01.02.2019 in I.A. No.1 of 2018, the real insurer was brought on record as additional 3^rd respondent. Sri. N.S. Najeeb entered appearance for the additional 3^rd respondent and he has submitted during the course of argument that the policy with reference to the autorickshaw bearing registration No.KL-2H/6447 is required to be verified. According to him, if O.P.(MV) No.851/2004 is remanded for reconsideration, he must be permitted to file the written statement and to contest the Original Petition on merits.

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The petitioner though served with notice in the appeal, did not appear either in person or through a counsel. Though it was contended by the 1^st respondent that notice was not served on him from the Tribunal, going by the impugned award, it was found that the 1^st respondent was set ex parte by the Tribunal. If the 1^st respondent was not served with notice, the Tribunal ought not to

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MACA.No.1616/2010(C) 5

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have declared him as ex parte . Therefore, the contention that notice was not served on him from the Tribunal is devoid of any merits and is discarded.

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It is found from the cause title of the award that the Divisional Manager of National Insurance Company Ltd ., Hospital Road, Kollam was made the 2^nd respondent in the petition seeking compensation. The 2^nd respondent entered appearance on notice being served on him and in the written statement filed has taken a specific contention that they are not holding policy for the autorickshaw bearing registration No.KL-2H/6447, owned by the 1^st respondent at the relevant time of the accident. In the above circumstances, the Tribunal exonerated the 2^nd respondent from liability to indemnify the 1^st respondent and fixed the liability on the 1^st respondent to compensate the petitioner.

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Since the petitioner has not turned up in the appeal on hand, this Court is not convinced of the reason for wrong impleadment of the insurer as alleged by the 1^st respondent. However, the factum remains that the insurer impleaded in the petition seeking compensation was not the real insurer of the offending vehicle. The 1^st respondent alleges that the offending vehicle owned by him was insured with National Insurance

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MACA.No.1616/2010(C) 6

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Company Ltd., Kollam and a copy of the policy is also made available as Ext.P1. This Court is convinced that KL-2H/6447 has valid insurance with National Insurance Company Ltd., the additional 3^rd respondent in the appeal as on date of accident. As per Ext.P1, the policy issued with No. 570500/31/02/6300012612 in the name of Sri.Rahim K., for the autorickshaw bearing registration No.KL-2H/6447 has insurance coverage from 30.09.2002 till 29.09.2003. The date of accident being 12.07.2003, the vehicle has valid policy coverage. Due to non-impleadment of the real insurer, the Tribunal was not apprised of the factum of insurance coverage of the offending vehicle at the time of passing of the impugned award. Therefore, interest of justice demands that the real insurer must be brought on record and the liability of the insurer, adjudicated by the Tribunal on the basis of the policy produced now. The award under challenge was passed uncontested. As the National Insurance Company Ltd is a necessary party, it must be brought on record in O.P.(MV) No.851/2004 on the files of Motor Accident Claims Tribunal, Kollam. It must also be granted with opportunity to file written statement and to contest the petition seeking compensation on merits. For the purpose, the impugned award needs to be set aside.

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MACA.No.1616/2010(C) 7

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In the result, the MACA stands allowed. The impugned award is set aside. The Original Petition is remanded to Motor Accident Claims Tribunal, Kollam for reconsideration and passing of a fresh award fixing liability upon the real person. The real insurer shall be brought on record as the 2^nd respondent in the Original Petition seeking compensation. On the insurer being impleaded as the 2^nd respondent, he must be provided with reasonable opportunity to file written statement and to contest the petition seeking compensation on merits. For the purpose, opportunity must be given to the insurer to cross examine the petitioner, if any oral evidence let in by him is already on record. At any rate, the Original Petition shall be reconsidered and a fresh award shall be passed by the Tribunal within a period of two months from the date of receipt of a certified copy of this judgment by it.

Sd/-

MARY JOSEPH

JUDGE

Rahim Kutty v. the Divisional Manager, New India Assur

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Rahim Kutty v. the Divisional Manager, New India Assur

Case brief

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