Allowed

Shibu P.George v. P.a.Joseph and Others

Kerala HC23 Nov 2021MACA/573/2011

Case brief

AI extract

What is this about?

This appeal concerned a motor accident claim where the Tribunal directed the insurer to recover payment from the owner due to alleged vehicle misuse. The High Court set aside the recovery direction, holding that carrying firewood for personal use did not constitute contract carriage.

What did the court decide?

The direction permitting the insurer to recover compensation from the owner was set aside; the award against the insurer remains valid for execution.

Shibu P.George Vs P.a.Joseph and Others — Motor Accident Claims | Kerala HC (2021)

¶1

MACA NO. 573 OF 2011

¶2

¶3

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶4

PRESENT

¶5

THE HONOURABLE MR.JUSTICE C.S.DIAS

¶6

TUESDAY, THE 23^RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943

¶7

MACA NO. 573 OF 2011

¶8

AGAINST THE ORDER/JUDGMENT IN OPMV 129/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA, IDUKKI

¶9

APPELLANT/S:

¶10

SHIBU P.GEORGE, PALAPUZHAYIL HOUSE, MANNAMKANDOM P.O., ADIMALY, IDUKKI DISTRICT.

¶11

BY ADVS. SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL SRI.T.V.VINU

¶12

RESPONDENT/S:

¶13

1 P.A.JOSEPH, S/O.ANTONY, PARAKURUMBIL HOUSE, SOUTH KATHIPPARA P.O.,, KALLARKUTTY VIA, IDUKKI DISTRICT-685562. (DIED)

¶14

2 MARY WO.JOSEPH, PARAKURUMBIL HOUSE, SOUTH KATHIPPARA P.O.,, KALLARKUTTY VIA, IDUKKI DISTRICT-685562. (DIED)

¶15

3 VIJUMON P.S. @RAMAN S/O.PICHAMUTHU, KAVUMKAL HOUSE,, SOUTH KATHIPPARA P.O., KALLARKUTTY-685562.

¶16

4 ORIENTAL INSURANCE COMPANY LTD. KOTHAMANGALAM-686691. JOBISH JOSEPH, S/O.P.A.JOSEPH, PARAKURUMBIL HOUSE,

¶17

*5 1000 ACRE, ADIMALY P.O., IDUKKI -685 561 JOBY JOSEPH, S/O.PA JOSEPH, PARAKURUMBIL HOUSE, 1000 ACRE, ADIMALY PO, IDUKKI-685561

¶18

¶19

MACA NO. 573 OF 2011

¶20

*6 RESPONDENT NOS.5 AND 6 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 5 AND 6 AS PER ORDERS DATED 11.10.2021 IN IA 1/2020 IN MACA 573/2011.

¶21

BY ADVS. SRI.GEORGE CHERIAN THIRUVALLA SRI.P.VIJAYAKUMAR

¶22

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA NO. 573 OF 2011

JUDGMENT

The appellant was the 2^nd respondent in OP(MV) No.129/2003 on the file of the Motor Accidents Claims Tribunal, Thodupuzha. The respondents 1 and 2 were the petitioners and the respondents 3 and 4 in the appeal were the 1^st respondent and 3^rd respondent/insurer before the Tribunal. During the pendency of the appeal, the respondents 1 and 2 had expired. Their legal representatives have been impleaded as the additional respondents 5 and 6 in the appeal. The parties are, therefore, for the sake of convenience, referred to as per the status before the Tribunal.

¶27

The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation on account of the death of their son, named Jomon (deceased). It was their case that, on 29.10.2002, while the deceased was returning from his work-site, the driver of a vehicle bearing registration No.KR.K. 7100 (jeep) requested the deceased to push the vehicle. As the deceased

¶28

¶29

MACA NO. 573 OF 2011

¶30

was pushing the vehicle, the jeep overturned and fell on the deceased. He lost his life instantaneously. The petitioners contended that the accident occurred due to the negligence of the 1^st respondent. The 2^nd respondent was the owner and the 3^rd respondent was the insurer of the jeep. Hence, the petitioners claimed a compensation of Rs.4,24,500/- from the respondents which was limited to Rs.4,00,000/-

¶31

The respondents 1 and 2 did not contest the proceedings and were set ex-parte.

¶32

The 3^rd respondent had filed a written statement, inter alia, contending that although the jeep was a private car, the 2^nd respondent had used it as a goods carriage vehicle. Therefore, the 2^nd respondent had violated the insurance policy conditions. Hence, the 3^rd respondent be exonerated of any liability.

¶33

The petitioners produced and marked Exts.A1 to A6. The 3^rd respondent produced the insurance policy, which was marked as Ext.B1.

¶34

MACA NO. 573 OF 2011

¶35

¶36

The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioners to recover from the 3^rd respondent an amount of Rs.2,35,000/- with interest and cost. However, the Tribunal on the finding that the 2^nd respondent had violated the insurance policy conditions, permitted the 3^rd respondent to recover the compensation amount from the 2^nd respondent.

¶37

Aggrieved by the direction of the Tribunal permitting the the 3^rd respondent to recover the amount from the 2^nd respondent, the 2^nd respondent is in appeal.

¶38

Heard; Sri.Shaji Thomas, the learned counsel appearing for the appellant/2^nd respondent and Sri.George A. Cherian, the learned counsel appearing for the 4^th respondent/ 3^rd respondent insurer.

¶39

The question that emanates for consideration in this appeal is whether the direction of the Tribunal permitting the 3^rd respondent to recover the compensation amount from the 2^nd respondent is sustainable in law or not.

¶40

¶41

MACA NO. 573 OF 2011

¶42

The 3^rd respondent in its written statement had contended that although the jeep was insured as a private car, the 2^nd respondent was using it as a contract carriage vehicle. The 3^rd respondent has not produced any materials or let in any oral evidence to substantiate its defense.

¶43

The Tribunal, merely relying on Ext.A1 FIR, arrived at the conclusion that there was a violation of policy conditions and ordered recovery. The above course adopted by the Tribunal is erroneous and wrong.

¶44

On a perusal of Ext.A3 final report, it is seen that the 2^nd respondent had used the jeep for carrying firewoods from his friend’s house to his residence. The carrying of the firewood for the personal use of the 2^nd respondent can never be construed or interpreted as contract carriage. The Police have clearly found that it was only firewood that was transported in the jeep.

¶45

A Division Bench of this Court in New India Assurance Co. Ltd. vs. Pazhaniammal : [2011 (3) KLT 648] has categorically held that, production of charge sheet

¶46

MACA NO. 573 OF 2011

¶47

¶48

is prima facie sufficient evidence of negligence for the purpose of a claim filed under Section 166 of the Motor Vehicles Act. If any party does not accept such charge sheet, the burden is on such party to let in evidence and discredit the charge sheet.

¶49

In the instant case other than for the bald assertion in the written statement of the 3^rd respondent, that the 2^nd respondent had used the vehicle for contract carriage, there is nothing on record to prove the assertion. Moreover, Ext.A3 final report proves that the 2^nd respondent had used the vehicle only for the purpose of carrying firewoods only for his personal use.

¶50

In the above factual and legal matrix, I hold that the finding of the Tribunal, that the 2^nd respondent used the jeep as contract carriage, is perverse and wrong, and only liable to be set aside.

¶51

In the result, the appeal is allowed. The impugned direction in OP(MV) No.129/2003 by the Tribunal permitting the 3^rd respondent insurer to recover the compensation

¶52

MACA NO. 573 OF 2011 8

¶53

amount from the appellant/2^nd respondent owner of the jeep is set aside. It is made clear that I have not interfered with the finding regarding the payment of compensation by the 3^rd respondent to the petitioners as per the impugned award. Hence, there is no legal impediment for the petitioners before the Tribunal, to proceed with the execution of the impugned award as against the 3^rd respondent/insurer, if not already done. The parties shall bear their respective costs.

¶54

Sd/-

¶55

C.S.DIAS JUDGE

¶56

rkc

Shibu P.George v. P.a.Joseph and Others

Case brief

What is this about?

What did the court decide?

Shibu P.George v. P.a.Joseph and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Muhammad Ali K.M Vs Ahammad Ali

V.K.Premalatha and Others Vs Safiya & Others

Razak Vs Lakshmi Devi

K.a.Roy Vs Kamaludhin & Others

Nazrudeen @ Nazar Vs Rajesh & Others

Managing Director Vs George