Partly allowed

Michael Sebasitan @ Santhosh v. United India Insurance Co.Ltd.

Kerala HC9 Feb 2023MACA/1457/2019

Case brief

AI extract

What is this about?

High Court of Kerala heard Motor Accident Claims Appeals where Tribunal exonerated insurer claiming policy was 'Act Only' for gratuitous passengers. Court directed appellant to deposit amount for remand to determine if deceased were employees. Later, deposit requirement reduced to half the award to facilitate claim recovery.

What did the court decide?

Appeal remanded to Tribunal for fresh decision after appellant deposits half of the compensation ordered by Tribunal (reduced from full amount); disposal of remand to be expedited.

Michael Sebasitan @ Santhosh Vs United India Insurance… — Motor Accident Claims | Kerala HC (2023)

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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 DEVAN RAMACHANDRAN

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THURSDAY, THE 9TH DAY OF FEBRUARY 2023 / 20TH MAGHA, 1944

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MACA NO. 1457 OF 2019

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AGAINST THE JUDGMENT IN OP(MV)69/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM

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APPELLANT/RESPONDENT NO.1:

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MICHAEL SEBASITAN @ SANTHOSH
AGED 46 YEARS
S/O.SEBASTIAN, THEKKEKKUTTU, KALLAMALA,
KALKANDI, PALAKKAD, KERALA- 678582.
BY ADVS.
P.A.MOHAMMED SHAH
SRI.SOORAJ T.ELENJICKAL
SRI.K.ARJUN VENUGOPAL
SMT.MARY RESHMA GEORGE
SMT.V.A.HARITHA
SRI.SIDHARTH B PRASAD
SRI.R.NANDAGOPAL
SHRI.ASWIN KUMAR M J

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RESPONDENTS/RESPONDENTS 2 TO 4 & CLAIMANTS 1 TO 3:

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1 UNITED INDIA INSURANCE CO.LTD., DIVISIONAL OFFICE, MALABAR FOR BUILDING, OLD KANDATH COMPLEX, G.B.ROAD, PALAKKAD, COMMUNICATION ADDRESS PAZHERY PLAZA, KODATHIPADI, MANNARKKAD, PALAKKAD, KERALA, PIN- 678582.

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2 RAJU, S/O.MUTHU, KOTTAMALA, NELLIPATHY, AGALI, PALAKKAD- 678581.

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3PREMA,
W/O.KRISHNAMURTHY, 10/52, KUNDADIKETTY,
MULLIOOR, KODAMPAKKAM, MANJOOR, OOTTY,
TAMIL NADU- 643219.

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MACA.No.1457 & 1465 of 2019

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..2..

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4 VELLACHI, W/O.MUTHU, PALLIKUNNIL, KALLAMALA, MANNARKKAD, PALAKKAD, KERALA, PIN- 678582.

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5 MUTHU, S/O.VELAYUDHAN, PALLIKUNNIL, KALLAMALA, MANNARKADU- 678582.

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6 KUMARI, W/O.CHANDRAN, PUTHANPURAKKAL, KALLAMALA, KALKANDI, MANNARKKAD, PALAKKAD, KERALA, PIN- 678582.

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BY ADVS.

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SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU
SRI.BINOY VASUDEVAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 09.02.2023, ALONG WITH MACA.1465/2019,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.No.1457 & 1465 of 2019

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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 DEVAN RAMACHANDRAN

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THURSDAY, THE 9TH DAY OF FEBRUARY 2023 / 20TH MAGHA, 1944

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MACA NO. 1465 OF 2019

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AGAINST THE JUDGMENT OP(MV)68/2016 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM

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APPELLANT/RESPONDENT NO.1:

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MICHAEL SEBASTIAN @ SANTHOSH,
AGED 46 YEARS
S/O SEBASTIAN,THEKKEKKUTTU,KAKKUPADI,
KALKANDI,PALAKKAD,KERALA-678582.

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BY ADVS.
P.A.MOHAMMED SHAH
SRI.SOORAJ T.ELENJICKAL
SRI.K.ARJUN VENUGOPAL
SMT.MARY RESHMA GEORGE
SMT.V.A.HARITHA
SRI.SIDHARTH B PRASAD
SRI.R.NANDAGOPAL
SHRI.ASWIN KUMAR M J

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RESPONDENTS/2ND RESPONDENT & CLAIMANTS 1 TO 4:

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1 UNITED INDIA INSURANCE CO.LTD., DIVISION OFFICE,MALABAR FORT BUILDING, OLD KANDATH COMPLEX,G B ROAD,PALAKKAD, COMMUNICATION ADDRESS -PAZHERY PLAZA, KODATHIPADI,MANNARKKAD,PALAKKAD, PIN-678582.

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2 SANTHA, W/O SUKUMARAN,PADINJAREKKARA, KALLAMALA,KALKANDI,PALAKKAD, KERALA,PIN-678582.

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3 SUKUMARAN, S/O KUNJAN,PADINJAREKKARA,KALLAMALA, KALKANDI,PALAKKAD,KERALA,PIN-678582.

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4 PRASANTH.P.K, S/O SUKUMARAN,PADINJAREKKARA, KALLAMALA,KALKANDI,PALAKKAD, KERALA,PIN-678582.

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MACA.No.1457 & 1465 of 2019

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5 NISHANTH.P.K, S/O SUKUMARAN,PADINJAREKKARA, KALLAMALA,KALKANDI,PALAKKAD, KERALA,PIN-686575.

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BY ADVS.

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SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSU
SRI.BINOY VASUDEVAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 09.02.2023, ALONG WITH MACA.1457/2019,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.No.1457 & 1465 of 2019

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JUDGMENT

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[MACA Nos.1457/2019, 1465/2019]

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The appellant in these two cases is the owner of an autorickshaw, which has involved in an accident, killing Sushant and Unnikrishnan who have been found to be travelling in it as gratuitous passengers.

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The legal heirs of Late Sushanth and Late Unnikrishnan filed OP(MV)Nos.69/2016 & 68/2016, respectively, before the Motor Accidents Claims Tribunal, Ottapalam (‘Tribunal’ for short), which allowed both of them; but exonerating the Insurance Company, holding that, since the policy issued by them in favour of the offending vehicle was only an “Act Only” one, the death of gratuitous passengers will not be covered.

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The appellant impugns the Award, of the Tribunal solely on the question of exoneration of the Insurance Company.

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Sri.Mohammed Shah – learned counsel appearing for the appellant in these two cases – which have been heard together taking note of the fact that both of them emanate from the same accident - initially argued very vehemently that

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MACA.No.1457 & 1465 of 2019

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the finding of the Tribunal, that his client was negligent, was based on no evidence at all. He, however, conceded that his client did not adduce any evidence, either documentary or oral, even though he was given sufficient opportunity; but prayed that such be now granted, explaining that though he had entrusted several documents to his counsel, due to an unfortunate situation, did not produce or arrange it to be marked in evidence.

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Sri.P.K.Manoj Kumar – learned Standing Counsel for the Insurance Company, in response, submitted that, when the appellant himself conceded in his written statement before the Tribunal that the deceased was gratuitously travelling in his vehicle, there is no question of his client being mulcted with any liability, since Ext.B1 Policy would show that it is an “Act only/Liability only” one. He thus prayed that these appeals be dismissed.

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Sri.Binoy Vasudevan – learned counsel appearing for the claimants in these cases, submitted that, since the Tribunal had already quantified the compensation eligible to his clients, the appellant should be directed to deposit the said amounts, even before this appeal is considered.

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MACA.No.1457 & 1465 of 2019

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I have considered the afore rival submissions and the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that can be acted upon by this Court without dispute.

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The afore narrative indubitably reveals that the only contention of the appellant is that the deceased were not gratuitous passengers, but his employees. He now contends that he has sufficient documents to prove this factum and that the averments in his writtent statement was on account of an inadvertant error caused, because of a communication deficit between him and his counsel.

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I notice from the written statement of the appellant that his specific averment is to the effect that the deceased had asked him for a ‘lift’ and that he had so offered them, before the unfortunate accident occurred. Going by these averments, certainly, the deceased can only be, prima facie , seen to be gratuitous passengers; and since Ext.B1 is an “Act only/Liabiity only” policy, the Insurance Company cannot be held responsible for the compensation fixed by the Tribunal.

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However, since Sri.Mohammed Shah – learned counsel for the appellant, makes a fervent plea that his client

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MACA.No.1457 & 1465 of 2019

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be given a last opportunity to prove that the deceased were his employees, based on germane documents and evidence, I think this Court will be justified in giving him such a latitude; however, only if he deposits the entire amount ordered by the Tribunal, so that it can then be received by the claimants.

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I, therefore, asked Sri.P.K.Manoj Kumar – learned Standing Counsel for the Insurance Company, whether he would oppose the afore course, to which, he fairly submitted that since Ext.B1 is an “Act only/Liability only” policy, it is only if the Tribunal is to find that the deceased were not gratuitous passengers, can any liability be cast upon his client. He submitted that, therefore, he leaves this Court to take an apposite decision in granting the appellant an additional opportunity in this regard.

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In the afore circumstances, these appeals are ordered in the following manner:

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a. The appellant will deposit the entire amount in both these appeals before the Tribunal in favour of the claimants, within a period of four months from the date of receipt of a copy of this judgment.

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b. If the appellant complies with the direction, then the order of the Tribunal, to the extent to which it exonerates the

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MACA.No.1457 & 1465 of 2019

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Insurance Company, will stand set aside and the Original Petitions will stand remanded to it for a fresh decision in this regard, after affording necessary opportunity to the appellant and to the Insurance Company – both to lead fresh/additional evidence and of hearing; thus culminating in a new Award in this regard as expeditiously as is possible, but not later than six months from the date on which the appellant deposits the amount in terms of direction (a) above.

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c. It is needless to say that, in the event, the appellant deposits the amount in terms of direction (a) above before the learned Tribunal, the claimants will be at liberty to receive the same on proper application.

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DEVAN RAMACHANDRAN, JUDGE

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ACR

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TO BE SPOKEN TO ON 24.02.2023

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These matters have been listed today for being ‘spoken to’ at the request of Sri.P.A.Mohammed Shah – learned counsel for the appellant, who submitted that, even with every ef f ort

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MACA.No.1457 & 1465 of 2019

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being taken by his client, he will not be able to garner resources to deposit the full amount as ordered by the Tribunal. He, therefore, prayed that his client be allowed to prosecute the Original Petition, consequent to the remand, on payment of Rs.10,00,000/-.

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2 . Sri.Binoy Vasudevan – learned counsel appearing for the claimants, however, submitted that his clients have been awaiting justice for the last several years; and therefore, an amount lesser than one half of what has been ordered by the Tribunal may not be considered. He added that, he is making this submission because, if the Tribunal is to f i nd that the Insurance Company is liable to pay, then it would also help his clients, since otherwise, recovery from the appellant may not be feasible.

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3 . Sri.P.K.Manoj Kumar – learned Standing Counsel for the Insurance Company, did not oppose the afore request of Sri.Binoy Vasudevan.

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In the afore circumstances, I modify the directions in the judgment, by reducing the amount to be deposited by the appellant - as a condition for remand - to be one half of the compensation ordered by the Tribunal, along with costs and interest.

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MACA.No.1457 & 1465 of 2019

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I, however, make it clear that, since I want the claimants to recover the amounts at the earliest, the learned Tribunal will dispose of the matter within the time frame f i xed above, if required, by including it in the special list for disposal, without asking for extra time.

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Axiomatic to the afore indulgence to the appellant, the time frame for deposit is reduced to three months, from four months as ordered in the judgment.

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It goes without saying that, if the deposit is made, then the Tribunal will proceed to act as per the order of remand of this Court.

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Sd/-

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DEVAN RAMACHANDRAN, JUDGE

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Michael Sebasitan @ Santhosh v. United India Insurance Co.Ltd.

Case brief

What is this about?

What did the court decide?

Michael Sebasitan @ Santhosh v. United India Insurance Co.Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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