Dismissed

Masilamani and Another v. Vijayakumar P and Others

Kerala HC3 Sept 2021MACA/750/2011

Case brief

AI extract

What is this about?

Appeal against Motor Accident Claims Tribunal's dismissal of a claim petition. Appellants sought compensation for the death of their son in a van accident. The Tribunal dismissed the petition because the driver was not impleaded and was disputed as an unauthorised driver; the insurance policy did not cover gratuitous passengers. The High Court upheld the Tribunal's order and dismissed the appeal.

What did the court decide?

Appeal dismissed; parties to bear their respective costs.

Masilamani and Another Vs Vijayakumar P and Others — Motor Accident Claims | Kerala HC (2021)

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MACA NO. 750 OF 2011

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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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FRIDAY, THE 3^RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943

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MACA NO. 750 OF 2011

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AGAINST THE JUDGMENT IN OP(MV)64/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR

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APPELLANTS/PETITIONERS:

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1 MASILAMANI AND ANOTHER S/O.SRI.KAKKAYAN.

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2 KASTHOORI, AGED 36 YEARS W/O.SRI.MASILAMANI., BOTH ARE R/A RAHUL HOUSE,563/G/WARD, POOKAITHA, ATHANI,MEKKAD PO.

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BY ADVS. SRI.ANIL S.RAJ SRI.G.ARUN GOPAN SMT.K.N.RAJANI

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RESPONDENTS/RESPONDENTS:

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1 VIJAYAKUMAR P,KOCHUMADOM KADAKKARAPPALLY PO,CHERTHALA,ALAPPUZHA 688 529.

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2 THE NEW INDIA INSURANCE CO.LTD. PB NO.74,M.O.WARD,NEAR TOWN HALL, ALAPPUZHA 688001

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BY ADVS. SRI.LIJU. M.P SRI.R.RAMESH SMT.T.C.SOWMIAVATHY

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA NO. 750 OF 2011

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JUDGMENT

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The appellants were the petitioners in O.P(MV) No.64/2006 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The respondents in the appeal were the respondents before the Tribunal.

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The appellants had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of their son named Vijayaveeran (deceased) a eight year old child. It was the case of the appellants that: on 29.11.2005, while the deceased was travelling in a pickup van bearing Reg. No.KL-4/R-7685 (van) through the Arthinkal-Thaikal Beach Road, the van suddenly capsized. The deceased sustained serious injuries and lost his life at the Taluk Headquarters Hospital, Cherthala, on the same day. The

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MACA NO. 750 OF 2011

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van was driven by one Rajesh Kumar @ Reji. It was owned by the 1^st respondent and insured with the 2^nd respondent.

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The appellants claimed a total compensation of Rs.3,03,000/- from the respondents, which was limited to Rs.3,00,000/-.

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The 1^st respondent filed a written statement admitting that the van was owned by him. However, he denied the fact that he had entrusted the vehicle to any person. According to him, the deceased and the other passengers in the van might have sustained injuries due to some other reason. He stated that as per his knowledge only four headload workers travelled in the van, and the deceased was not a passenger. The Police had falsely stated that 40 persons travelled in the van. The van had a valid insurance coverage with the 2^nd respondent. So even if the 1^st respondent is found vicariously liable to pay the compensation, it is the 2^nd respondent who is to indemnify his liability.

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MACA NO. 750 OF 2011

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The 2^nd respondent filed a written statement admitting that the van had a valid insurance coverage, but the van was not covered to carry passengers. On the date of accident, it was learnt that nearly 30-40 gratuitous passengers travelled in the van, who were not covered by the insurance policy. Hence the 2nd respondent is not liable to indemnify the 1^st respondent . Hence, the claim petition as against the 2^nd respondent may be dismissed.

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Along with the claim petition, two other injured also filed O.P (MV) Nos.1667/2006 and 1668/2006 before the same Tribunal.

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The Tribunal consolidated and jointly tried the original petitions.

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The appellants produced and marked Exts.A1 and A2 in evidence. The 2^nd respondent produced the insurance policy, which was marked as Ext.B1. Exts.X1 to X1(g) were summoned and marked as court exhibits.

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MACA NO. 750 OF 2011

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The Tribunal, after analysing the pleadings and materials on record and considering the fact that the appellants had not impleaded the driver of the van, dismissed the claim petition.

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Aggrieved by the dismissal, the petitioners are in appeal.

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Heard; Smt.Rajani K.N, the learned counsel appearing for the appellants/petitioners and Smt· T.C.Sowmiavathy, the learned counsel appearing for the 2^nd respondent -insurer.

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The question that arises for consideration in this appeal is whether the dismissal of the claim petition is justifiable or not?.

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The specific contention of the appellants in the claim petition was that they lost their son in the accident that occurred on 29.11.2005, due to the negligence of the driver of the van.

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The 1^st respondent had categorically pleaded in

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MACA NO. 750 OF 2011

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the written statement that it was without his knowledge that the vehicle was taken and driven by Rajesh Kumar @

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Reji. He disputed that the driver of the van was his authorised representative. In the light of the disputed fact that the driver being an authorised driver of the owner, it was the bounden duty of the appellants to have impleaded the driver as a respondent in the claim petition, in order to fasten the liability on the 2^nd respondent. Likewise, the appellants had not summoned and examined the driver as a witness to prove their case.

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On an evaluation of Ext.B1 insurance policy, it is seen that the policy only covers the liability of the drivercum-owner of the vehicle and three other employees of the owner.

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The appellants could not have case that the deceased was an employee of the 1^st respondent because he was only a child aged eight years.

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Even though the learned counsel appearing for

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MACA NO. 750 OF 2011

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the appellants made a fervent plea that the matter may be remitted back to the Tribunal for fresh consideration, keeping in mind the mandate under Order XLI, Rule 23A of the Code of Civil Procedure and the fact that the accident occurred as early as on 29.11.2005 , i.e, nearly 16 years and the award was passed more than a decade back, I am not inclined to remit the matter to the Tribunal for want of cogent reasons.

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On a re-appreciation of the pleadings and materials on record, particularly the fact that the appellants had not impleaded the driver of the van who

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was a necessary party and the specific denial by the 1^st respondent that the driver was not his authorised agent and the further fact that Ext.B1 policy does not cover the gratuitous passengers , I do not find any error or illegality in the impugned award passed by the Tribunal. Thus, I uphold the findings of the Tribunal and confirm the impugned award .

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MACA NO. 750 OF 2011

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Resultantly, the appeal is dismissed. In the peculiar facts and circumstances of the case, the parties shall bear

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their respective costs.

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ma/3.9.2021

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Sd/- C.S.DIAS, JUDGE

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/True copy/

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P.S to Judge

Masilamani and Another v. Vijayakumar P and Others

Case brief

What is this about?

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Masilamani and Another v. Vijayakumar P and Others

Case brief

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