Allowed

C.Kunhambu Nair(Died) v. Jimmy Joseph

Kerala HC7 Oct 2022MACA/2223/2012

Case brief

AI extract

What is this about?

Against an Insurance Company award, this High Court allowed the appeal where the Tribunal directed recovery of compensation from the vehicle owner for permit violation. The court held that overloading did not contribute to the accident and thus recovery from the owner was untenable under the law.

What did the court decide?

Direction permitting recovery of compensation from the appellant/owner permitted by the Tribunal was set aside.

C.Kunhambu Nair(Died) Vs Jimmy Joseph — Motor Accident Claims | Kerala HC (2022)

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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. JAYACHANDRAN

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FRIDAY, THE 7^TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944

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MACA NO. 2223 OF 2012

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AGAINST THE ORDER/JUDGMENT DATED 20.7.2012 IN OPMV 26/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KASARAGOD

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APPELLANT/R2:

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1 C.KUNHAMBU NAIR (DIED) S/O KELU NAIR, CHEVIRI HOUSE, P.O, BALAL, PARAPPA (VIA), KASARAGODE DT. PIN:671 533.

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*ADDL. SULOCHANA P.

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APPELLANT W/O LATE C.KUNHAMBU NAIR, CHEVIRI HOUSE, BALAL NO.2 P.O., KASARAGOD -671533.

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*ADDL. MANOJ KUMAR P.

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APPELLANT PARAMBATHU HOUSE, BALAL P.O., PARAPPA(VIA), NO.3 KASARAGOD-671533.

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*ADDL. BINDU P

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APPELLANT W/O GOPINATHAN , ALICHERI HOUSE,CHEMNAD P.O., NO.4 KASARAGOD-671317.

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*ADDL. LEKHA P, W/O.ASHOKAN,

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APPELLANT NAVANEETHAM HOUSE, OLIYATHADUKKAM, VATTAMTHATTA NO.5 P.O., KASARAGOD-671542.

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BY ADV SUBHASH CYRIAC

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RESPONDENTS/APPLICANT AND RESPONDENTS 1 AND 3:

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1 JIMMY JOSEPH

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S/O JOSEPH, OTHERUKUNNEL, CHITTARICKAL P.O., CHITTARICKAL VILLAGE, HOSDURG TALUK, 670 511.

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2 JIPPYA JOY S/O JOY PULIMOOTTIL, CHITTARICKAL P.O, NILESHWARAM (VIA), CHITTARICKAL VILLAGE, HOSDURG TALUK-671 326.

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MACAs 2223 & 2224 of 2012

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3 THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED, DIVISION NO.10, FLAT NO.101-106, N-1BMC HOUSE, CANNAUGHT PLACE, NEW DELHI-110001.

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*ADDL.R4 SHOBHANA A.V

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W/O LATE VINOD KUMAR, AYIKODAN HOUSE, CHIMMATHODE, KARINDALAM, KARINDALAM P.O., KASARAGOD-671314.

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*(ADDITIONAL APPELLANTS 2 TO 5 AND ADDITIONAL RESPONDENT 4 ARE IMPLEADED AS PER ORDER DATED 7/10/2022 IN IA 1/2021 IN MACA 2223/2012)

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BY ADVS. SHINTO THOMAS P.JACOB MATHEW REBINSON M.P.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.10.2022, ALONG WITH MACA.2224/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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¶31

MACAs 2223 & 2224 of 2012

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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. JAYACHANDRAN

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FRIDAY, THE 7^TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944

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MACA NO. 2224 OF 2012

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AGAINST THE ORDER/JUDGMENT DATED 20.7.2012 IN OPMV 47/2009

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OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD

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APPELLANT/R2:

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1 C.KUNHAMBU NAIR (DIED) S/O KELU NAIR, CHEVIRI HOUSE, P.O. BALAL, PARAPPA (VIA), KASARAGODE DT. PIN:671 533. *ADDL. SULOCHANA P. APPELLANT W/O C.KUNHAMBU NAIR,CHEVIRI HOUSE, BALAL P.O., NO.2 KASARAGOD-671533. *ADDL. MANOJKUMAR P. APPELLANT PARAMBATHU HOUSE , BALAL P.O., PARAPPA(VIA), NO.3 KASARAGOD-671533. *ADDL. BINDU P. APPELLANT W/O GOPINATHAN, ALICHERI HOUSE, CHEMNAD P.O, NO.4 KASARAGOD-671317. *ADDL. LEKHA P., W/O.ASHOKAN, APPELLANT NAVANEETHAM HOUSE, OLIYATHADUKKAM, VATTAMTHATTA NO.5 P.O., KASARAGOD-671542 BY ADV SUBHASH CYRIAC

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RESPONDENTS/APPLICANT AND RESPONDENTS 1 & 3:

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1 TOMY JOSEPH S/O JOSEPH, ANCHANICKAL, KANNIVAYAL P.O., PALAVAYAL VILLAGE, HOSDURG TALUK-670 511.

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MACAs 2223 & 2224 of 2012

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2 JIPPAYA JOY S/O JOY PULIMOOTTIL, CHITTARICKAL P.O., NILESHWARAM VIA., CHITTARICKAL VILLAGE, HOSDURG TALUK.671 326.

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3 THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED., DIVISION NO.10, FLAT NO.101106, N-1BMC HOUSE, CANNAUGHT PLACE, NEW DELHI-110 001.

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*ADDL.R4 SHOBHANA A.V. W/O LATE VINOD KUMAR, AYIKODAN HOUSE, CHIMMATHODE, KARINDALAM, KARINDALAM P.O., KASARAGOD-671314.

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*(ADDITIONAL APPELLANTS 2 TO 5 AND ADDL. RESPONDENT 4 ARE IMPLEADED AS PER ORDER DATED 07/10/2022 IN IA 1/2021 IN MACA 2224/2012)

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BY ADVS. SHINTO THOMAS SRI.P.JACOB MATHEW

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.10.2022, ALONG WITH MACA.2223/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACAs 2223 & 2224 of 2012

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C.JAYACHANDRAN, J.

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-----------------------------------M.A.C.A Nos.2223 and 2224 of 2012

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------------------------------------Dated this the 7^th day of October, 2022

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J U D G M E N T

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These appeals are preferred by the owner of a Maruthi car bearing no.KL-60-4032, which got involved in an accident and which is the subject matter of O.P(M.V) Nos.26/2009 and 47/2009 of the Motor Accidents Claims Tribunal, Kasaragod. The limited compass of these appeals is with respect to the direction made by the Tribunal to the Insurance Company to pay the compensation amount and to recover it from the appellant/owner, on the premise that there is violation of permit conditions. The third respondent/Insurance Company in the written statement took a contention that going by the permit, the seating capacity of the vehicle is only four, whereas five persons have travelled in the car at the time of the accident. In view of such violation of permit, the Insurance Company was not liable to indemnify the loss, was the contention. This contention is seen accepted in paragraph no.38 of the award, as a

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MACAs 2223 & 2224 of 2012

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consequence of which, pay and recovery have been directed against the third respondent/Insurance company.

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Heard Sri.Subhash Syriac, learned counsel appearing for the appellant and Sri.Mathew Jacob P., learned Counsel for the third respondent/Insurance Company.

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Having heard the learned counsel appearing on both sides, this Court finds merits in the appeals preferred by the appellant/owner. This Court is of the opinion that the factum of three persons sitting in the second row of the car did not contribute in any manner to the occurrence of the accident. It is not in dispute that three persons were travelling in the back seat, whereas two were in the front seat. So the alleged overloading had not contributed in any manner to the causation of the accident. If that be so, recovery directed to be made from the owner is not in terms of law. It is brought to my notice that a case was registered against the driver of the vehicle under Ss.279, 337 and 338 of the Penal Code and also under

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MACAs 2223 & 2224 of 2012

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Ss.66 and 192 of the Motor Vehicles Act. No information has been provided to this Court as to whether that case has culminated in an acquittal or conviction. The same is not a relevant information, insofar as adjudication of these appeals are concerned. This Court need only observe that the said case will proceed in accordance with law. If there is violation of permit conditions, the law will take its course. However, the same cannot be reckoned to have made any contribution to the accident occurred, wherefore that part of the direction made by the Tribunal permitting recovery of the compensation amount from the owner/appellant is liable to be obliterated. Resultantly, these appeals are allowed. The direction contained in paragraph no.38 of the award permitting recovery of the compensation amount from the appellant/owner is set aside. The award will remain as such for all other purposes.

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Sd/C.JAYACHANDRAN JUDGE

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C.Kunhambu Nair(Died) v. Jimmy Joseph

Case brief

What is this about?

What did the court decide?

C.Kunhambu Nair(Died) v. Jimmy Joseph

Case brief

What is this about?

What did the court decide?

What the court decided

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