Allowed

New India Assurance v. Omana

Kerala HC3 Nov 2022MACA/1482/2015

Case brief

AI extract

What is this about?

High Court of Kerala allowed appeals filed by two insurance companies. The Court set aside the Motor Accidents Claims Tribunal's award, exonerating the scooter insurer due to lack of valid insurance coverage on the accident date and removing the car insurer's liability for the wife's injuries who was only hit by a scooter. Full compensation liability was fixed on the scooter rider's legal heirs.

What did the court decide?

The Supreme Court of the District refused to grant the prayer of K. S. Rajan for reduction of the amount deposited in the Court of the Motor Accidents Claims Tribunal.

New India Assurance Vs Omana — Motor Accident Claims | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MRS. JUSTICE MARY JOSEPH

¶4

THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944

¶5

MACA NO. 2443 OF 2013

¶6

AGAINST THE AWARD DATED 28.02.2013 IN O.P(M.V) NO.1109/2008 OF

¶7

MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM

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APPELLANT/3RD RESPONDENT IN THE OP:

¶9

NATIONAL INSURANCE CO. LTD.
KOTTAYAM, REPRESENTED BY ITS MANAGER,
NATIONAL INSURANCE CO LTD, KOCHI REGIONAL OFFICE,
OMANA BUILDINGS, PADMA JUNCTION, KOCHI 35

¶10

BY ADV SRI.A.R.GEORGE

¶11

RESPONDENTS/CLAIMANT, RESPONDENTS2,4,5,6,7 AND ADDITIONAL 8TH

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RESPONDENT IN THE OP:

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1 K.S.RAJAN, RAJBHAVAN, PALLICKACHIRA KAVALA P.O,

¶14

PAIPPADU, CHANGANANCHERRY-686 537

¶15

2 JAYAKUMAR, THOPPIL, VALANJAVATTOM EAST P.O, KADAPRA, THIRUVALLA -689 104

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3 BALAKRISHNAN, VAZHAYIL VADAKKETHIL, PVUKKARA MURI, KURITTISSERY, MANNAR -689 622

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4 BALAN, SABRI BHAVAN, CHERUMUZHA, ERANIKKUDI, CHENGANNOOR-680 121

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5 THE NEW INDIA ASSURANCE CO LTD, KOTTAYAM-686 500 6 JAYA SANTHOSH, MAMMOTTIL, PODIYADI P.O, THIRUVALLA, NOW QUARTER NO 29, SUGAR FACTORY, VALANJAVATTOM, THIRUVALLA 689 110

¶19

7 ANJALI SANTHOSH (MINOR) REPRESENTED BY NEXT FRIEND MOTHER JAYA SANTHOSH MAMMOTTIL, PODIYADI P.O, THIRUVALLA, NOW QUARTER NO 29, SUGAR FACTORY, VALANJAVATTOM, THIRUVALLA 689 110 BY ADVS.SMT.FRINDA PAILY

¶20

R5 BY SRI.RAJAN P.KALIYATH

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 03.11.2022, ALONG WITH MACA NOS.2444/2013 AND 1482/2015, THE

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COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶23

M.A.C.A.No.1482 of 2015

¶24

M.A.C.A.Nos.2443 & 2444 of 2013 and

¶25

¶26

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶27

PRESENT

¶28

THE HONOURABLE MRS. JUSTICE MARY JOSEPH

¶29

THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944

¶30

MACA NO. 2444 OF 2013

¶31

AGAINST THE AWARD DATED 28.02.2013 IN O.P(M.V) NO.1108/2008

¶32

OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM

¶33

APPELLANT/3RD RESPONDENT IN THE OP:

¶34

NATIONAL INSURANCE CO.LTD

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KOTTAYAM, REPRESENTED BY ITS MANAGER,
NATIONAL INSURANCE CO. LTD, KOCHI REGIONAL OFFICE,
OMANA BUILDINGS, PADMA JUNCTION, KOCHI 35

¶36

BY ADV SRI.A.R.GEORGE

¶37

RESPONDENTS/CLAIMANT, RESPONDENTS 2,4,5,6 AND ADDITIONAL

¶38

RESPONDENTS 7& 8 IN THE OP:

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1 OMANA, RAJBHAVAN, PALLICKACHIRA KAVALA P.O, PAIPPADU, CHANGANANCHERRY 686 537

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2 JAYAKUMAR, THOPPIL, VALANJAVATTOM EAST P.O, KADAPRA, THIRUVALLA 689 104

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3 BALAKRISHNAN, VAZHAYIL VADAKKETHIL, PVUKKARA MURI, KURITTISSERY, MANNAR 689 622

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4 BALAN, SABRI BHAVAN, CHERUMUZHA, ERANIKKUDI, CHENGANNOOR 689 121

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5 THE NEW INDIA ASSURANCE CO.LTD., KOTTAYAM- 686 500

¶44

6 JAYA SANTHOSH, MAMMOTTIL, PODIYADI P.O, THIRUVALLA, NOW QUARTER NO 29, SUGAR FACTORY, VALANJAVATTOM, THIRUVALLA 689 110

¶45

M.A.C.A.Nos.2443 & 2444 of 2013 and
M.A.C.A.No.1482 of 2015

¶46

¶47

7ANJALI SANTHOSH (MINOR),REPRESENTED BY NEXT FRIEND
MOTHER JAYA SANTHOSH MAMMOTTIL, PODIYADI P.O,
THIRUVALLA, NOW QUARTER NO 29, SUGAR FACTORY,
VALANJAVATTOM, THIRUVALLA 689 110
BY ADVS. SMT.FRINDA PAILY
R1 BY SRI.S.JAYAKRISHNAN SUKUMARAN NAIR
R2, R7 BY SRI.SARATH SASIDHARAN
R5 BY SRI.RAJAN P.KALIYATH

¶48

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 03.11.2022, ALONG WITH MACA NOS.1482/2015 AND
2443/2013, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

¶49

M.A.C.A.Nos.2443 & 2444 of 2013 and

¶50

M.A.C.A.No.1482 of 2015

¶51

¶52

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶53

PRESENT

¶54

THE HONOURABLE MRS. JUSTICE MARY JOSEPH

¶55

THURSDAY, THE 3RD DAY OF NOVEMBER 2022 / 12TH KARTHIKA, 1944

¶56

MACA NO. 1482 OF 2015

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AGAINST THE AWARD DATED 28.02.2013 IN O.P(M.V) NO.1108/2008
OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM

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APPELLANT/6TH RESPONDENT IN OP(MV) NO.1108/08:

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NEW INDIA ASSURANCE CO.LTD,
KOTTAYAM, REPRESENTED BY ITS MANAGER,
REGIONAL OFFICE, M.G ROAD, ERNAKULAM.

¶60

BY ADV SRI.LAL GEORGE

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RESPONDENTS/CLAIMANT AND THE RESPONDENTS 1 TO 5 AND

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ADDITIONAL RESPONDENTS 7 AND 8 IN OP)MV) NO.1108/08:

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1 OMANA, RAJ BHAVAN, PALLICKACHIRA KAVALA P.O, PAIPPADU, CHANGANACHERRY 686 537.

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2 SANTHOSH P. THOPPIL VALANJAVATTOM EAST P.O, KADAPRA, THIRUVALLA (DIED), 689 104.

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3 JAYAKUMARI, THOPPIL, VALANJAVATTOM EAST P.O, KADAPRA, THIRUVALLA , 689 104.

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4 THE NATIONAL INSURANCE CO. KOTTAYAM 686 001.

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5 BALAKRISHNAN, VAZHAYIL VADAKKETHIL, PVUKKARA MURI, KURUTTUSSERY MANNAR, 689 622.

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6 BALAN, SABARI BHAVAN, CHERUMUZHA, ERRANIKKUDI, CHENGANNUR. 689 121.

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7 JAYA SANTHOSH, MAMMOOTTIL, PODIYADI P.O, THIRUVALLA NOW RESIDING AT QUARTER NO.29, SUGAR FACTORY, VALANJAVATTOM, THIRUVALLA 689 104.

¶70

M.A.C.A.Nos.2443 & 2444 of 2013 and
M.A.C.A.No.1482 of 2015

¶71

8ANJALI SANTHOSH (MINOR)
REPRESENTED BY GUARDIAN MOTHER JAYA SANTHOSH OF
MAMMOOTTIL, PODIYADI P.O, THIRUVALLA NOW RESIDING
AT QUARTER NO.29, SUGAR FACTORY, VALANGAVATTOM,
THIRUVALLA 689 104.

¶72

BY ADVS.SRI.S.PARAMESWARA PRASAD
R1 BY SRI.S.JAYAKRISHNAN
R3,R8 BY SRISARATH SASIDHARAN
R4 BY SRI.A.R.GEORGE

¶73

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 03.11.2022, ALONG WITH MACA NOS.2443/2013 AND
2444/2013, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

¶74

M.A.C.A.Nos.2443 & 2444 of 2013 and
M.A.C.A.No.1482 of 2015

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JUDGMENT

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Dated this the 03rd day of November, 2022

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M.A.C.A.Nos.1482/2015 and 2444/2013 are originated from O.P (M.V.) No.1108/2008 pending on the files of Motor Accidents Claims Tribunal, Kottayam (for short ‘the Tribunal’). M.A.C.A.No.2443/2013 is originated from O.P(M.V.) No.1109/2008 pending on the files of that Tribunal itself.

¶79

A common award was passed by the Tribunal in both Original Petitions mentioned as above on 28.02.2013. The above Original Petitions were filed respectively by the wife and husband, who sustained injuries when a Scooter bearing Registration No. KL-3/N-2686 dashed against the Motorcycle bearing Registration No.KL-5/T-7913 in which they were travelling through ThiruvallaMavelikkara public road. They were thrown on the road in the impact of the hit. A Car bearing Registration No.KL-4/D 739 which was moving behind further hit the husband. Both sustained injuries in the accident and were rushed to Pushpagiri Medical

¶80

¶81

M.A.C.A.Nos.2443 & 2444 of 2013 and
M.A.C.A.No.1482 of 2015

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College Hospital, Thiruvalla for treatment. Alleging that the accident was occurred due to the rash and negligent driving by the rider and driver respectively of the Scooter and the Car, the Original Petitions were preferred before the Tribunal. The rider of the Scooter was arrayed as the 1^st respondent. The driver of the Car, insurer of the Scooter and the insurer of the Car respectively were arrayed as the 4^th , 3^rd and the 6^th respondents in the Original Petitions. A total sum of Rs.10,00,000/- was claimed as compensation for the injuries sustained by the husband and Rs.2,50,000/-, as compensation for the injuries sustained by the wife. It was alleged that the rider and driver respectively of the Scooter and the Car and owners and insurers of those are jointly and severally liable to compensate the petitioners.

¶83

During the pendency of the Original Petitions, the rider of the Scooter died and accordingly his wife and child were brought on record in O.P.(MV) Nos.1108/2008 and 1109/2008 as additional respondent Nos.7 and 8 who are now respondents 6 and 7 in M.A.C.A Nos.2444/2013 and 2443/2013 and respondents 7 and 8 in M.A.C.A.No.1482/2015.

¶84

M.A.C.A.Nos.2443 & 2444 of 2013 and
M.A.C.A.No.1482 of 2015

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Sri.A.R.Geroge, the learned counsel advanced

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arguments for the 3^rd respondent in the Original Petitions and the appellant in M.A.C.A.Nos.2444/2013 and 2443/2013 and Sri.Lal George, the learned counsel, on behalf of the 6^th respondent in the Original Petitions and the appellant in M.A.C.A No.1482/2015. Sri. Sarath Sasidharan advanced arguments on behalf of the legal heirs of the rider of the Scooter in M.A.C.A.Nos.2444/13 and 1482/2015.

¶88

The specific contention of Sri.A.R.George, the learned counsel for the appellants in M.A.C.A.Nos.2443/2013 and 2444/2013 was that composite negligence was found by the Tribunal and liability was fixed on the rider of the Scooter as well as the driver of the Car, in the ratio of 50:50. According to him the insurer of the Scooter as well as that of the Car were made equally liable to pay the compensation arrived at. The learned counsel urged that in the written statement filed by the 3^rd respondent in O.P(M.V) Nos.1108/2008 and 1109/2008 the insurance coverage of the Scooter involved in the accident at the relevant time of accident under the certificate of insurance stands

¶89

¶90

M.A.C.A.Nos.2443 & 2444 of 2013 and
M.A.C.A.No.1482 of 2015

¶91

issued is specifically denied. Copies of the certificate of insurance issued covering the period prior to and after the accident were produced and marked in evidence as Ext.B2. The learned counsel has urged on the basis of Ext.B2 that the Scooter was devoid of a certificate of insurance covering the date of accident. It is true that policy was there covering the periods prior to and later to the accident. According to him the Tribunal overlooked that factum and therefore, is highly unjustified in fastening the liability on the 3^rd respondent. According to him when specific contention was raised by the 3^rd respondent in the written statement, the Tribunal ought to have framed it as an issue and answered it on the basis of the evidence on record. Such an issue was not found raised and answered by the Tribunal. Therefore, without the evidence on record being appreciated properly the Tribunal fixed equal liability on the 6^th and the 3^rd respondents to indemnify the insured and directed to pay the compensation corresponding to that.

¶92

The certificates of insurance issued in respect of the Car and the Scooter respectively were marked in evidence as Exts.B1 and B2. From the written statement filed by the 3^rd

¶93

M.A.C.A.Nos.2443 & 2444 of 2013 and
M.A.C.A.No.1482 of 2015

¶94

¶95

respondent, a contention regarding lack of insurance coverage for the Scooter with them and want of liability for the reason to indemnify the insured of the Scooter was taken. From Ext.B2 marked in evidence it is seen that it is valid only from 04.07.2007 till 03.07.2008. The accident being occurred on 25.05.2007, the risk of the insured is not covered under Ext.B2. The Tribunal having been convinced of the contentions raised on lack of authorisation for the rider of the Scooter, had also allowed, the insurer of the Scooter, the appellant herein to recover the sum after making deposit of the same in favour of the petitioners. When the certificate of insurance stands issued for the Scooter as Ext.B2 does not have coverage, the Tribunal ought to have exonerated it from liability to indemnify the insured of the Scooter rather than fixing liability on it to pay 50% of the amount arrived at as compensation and to get recovery of it from R2 and Addl.R7 and R8 who are legal heirs of deceased R1. The finding on coverage of insurance with the 3^rd respondent in the Original Petitions and fixation of 50% liability on them to indemnify the insured and to get recovery, being erroneous is only liable to be set aside.

¶96

¶97

M.A.C.A.Nos.2443 & 2444 of 2013 and
M.A.C.A.No.1482 of 2015

¶98

In M.A.C.A.No.1482/2015 filed by the insurer of the

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Car, the main contention raised by Sri.Lal George on it’s behalf was based on the FIS lodged in the case on hand. The 1^st informant was allegedly travelling as pillion rider in the Motorcycle and sustained injuries in the accident. In the First Information Statement, which is appended to the FIR and marked in evidence as Ext.A1, the wife as first informant had stated that herself and her husband while travelling as pillion rider and rider respectively in a Motorcycle, a Scooter proceeding from the opposite direction dashed against it and in the impact they were thrown on the road. It is further stated by her that a Car proceeding from behind in a rash and negligent manner hit her husband. According to her both of them sustained injuries in the accident and were taken to the hospital forthwith.

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According to Sri.Sarath Sasidharan, the learned counsel representing the legal heirs of the rider of the Scooter, the FIS has to be read in the manner as if the wife and the husband were hit by the Car and sustained injuries. According to

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him, though it was not specifically stated by the wife who was the

¶102

¶103

M.A.C.A.Nos.2443 & 2444 of 2013 and
M.A.C.A.No.1482 of 2015

¶104

1^st informant that the Car hit her, she has stated that herself and her husband had sustained injuries. Therefore, he canvassed for taking a view that both the husband and the wife were hit by the

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Car and thereby sustained injuries.

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This Court had read the contents of the FIS and the final report marked in evidence in the Original Petitions respectively as Exts.A1 and A6. The specific case of the wife as first informant was that after the collision of the Motorcycle and the Scooter, both herself and her husband were thrown on the road. Thereafter a Car proceeding from behind also hit on the body of her husband. Therefore it is clear and specific that the wife sustained injuries only on a hit of the Scooter on the Motorcycle. The Tribunal failed to apply its mind to the above aspects while fixing liability. Tribunal has also fixed liability in the ratio 50:50 in the claim petitions filed by the wife as well as the husband. When the wife as the 1^st informant has no specific averment to the effect that the Car also hit her and injuries received in that impact, the finding of the Tribunal that driver of the Car was also responsible for causing injuries to the wife, can

¶107

¶108

M.A.C.A.Nos.2443 & 2444 of 2013 and
M.A.C.A.No.1482 of 2015

¶109

only be considered as erroneous. The Tribunal has also gone wrong in fixing vicarious liability upon the owner of the Car and liability to indemnify, on the insurer of the Car. The finding of the Tribunal fixing 50% composite negligence on the driver of the Car for causing injuries to the wife being erroneous is also to be set aside.

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In the result, M.A.C.A.Nos.2443/2013 and 2444/2013 are allowed and the finding to the extent of fastening liability on the appellant herein being the insurer of the Scooter to indemnify the insured and directing recovery of the same from the owner of the Scooter are set aside. The insurer of the Scooter is absolutely exonerated from liability to compensate the petitioners/claimants. M.A.C.A.No.1482/2015 is also allowed and the finding to the extent of fixing liability upon the insurer of the Car in O.P(M.V) No.1108/2008 is set aside. The rider of the Scooter being no more, the liability to pay the entire compensation is fixed on the legal heirs of the rider of the Scooter, who are additional respondents 7 and 8 in the Original Petitions and respondents 6 and 7 in M.A.C.A.No.2444/2013 and 2443/2013 and respondents

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M.A.C.A.Nos.2443 & 2444 of 2013 and
M.A.C.A.No.1482 of 2015

¶112

7 and 8 in M.A.C.A.No.1482/2015.

¶113

The appellants in all the appeals having been paid Rs.25,000/- being part of the compensation stands awarded by the Tribunal, at the time of filing of the above appeals, in view of the reversal of the finding fixing liability on them, is entitled for return of the same. Rs.25,000/- stands in deposit shall be released to the appellants in all appeals forthwith on appropriate application seeking for release of that is filed by them.

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JUDGE

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NAB

New India Assurance v. Omana

Case brief

What is this about?

What did the court decide?

New India Assurance v. Omana

Case brief

What is this about?

What did the court decide?

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