Remanded

The New India Assurance Co. Ltd. v. Anishkumar V.C

Kerala HC6 Oct 2023MACA/2174/2017

Case brief

AI extract

What is this about?

In a motor accident appeal, the High Court set aside the Tribunal's award regarding negligence due to pending adjudication in a related case from the same accident concerning Section 163A/166 conversion. The court confirmed the compensation quantum but directed the Tribunal to reconsider negligence afresh and try both pending petitions together.

What did the court decide?

The award dated 20.03.2017 is set aside to reconsider negligence; compensation quantum confirmed; parties directed to appear for joinder of related petition.

The New India Assurance Co. Ltd. Vs Anishkumar V.C — Motor Accident Claims | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

¶4

FRIDAY, THE 6TH DAY OF OCTOBER 2023 / 14TH ASWINA, 1945

¶5

MACA NO. 2174 OF 2017

¶6

[THE AWARD DATED 20.03.2017 IN OP(MV)NO.1543/2013 ON THE
FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM]
APPELLANT/S:

¶7

THE NEW INDIA ASSURANCE CO. LTD.

¶8

REGIONAL OFFICE, KANDAMKULATHY TOWERS,
M.G ROAD,ERNAKULAM, REPRESENTED BY ITS DULY
AUTHORIZED OFFICER,

¶9

BY ADV SRI.V.P.K.PANICKER

¶10

RESPONDENTS/RESPONDENTS 1 AND 2 AND PETITIONER:

¶11

1ANISHKUMAR V.C
S/O. CHANDRASHEKHARAN NAIR, VATTAMKANDATHIL
HOUSE,OORAMANA P.O, MOOVATTUPUZHA, ERNAKULAM -
686 739.

¶12

2 THE MANAGING DIRECTOR K.S.R.T.C FORT, THIRUVANANTHAPURAM - 695 001.

¶13

3 SURENDRAN C.S S/O. SREEDHARAN, CHERUKAYIL HOUSE, UDAYAMPEROOR P.O,MANAKUNNAM VILLAGE, KANAYANOOR TALUK, ERNAKULAM - 682 307.

¶14

R2 BY BY ADV ALEX ANTONY SEBASTIAN P.A.

¶15

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 06.10.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

¶16

M.A.C.A. No.2174/2017

¶17

: 2 :

¶18

JUDGMENT

¶19

This appeal arises from OP(MV) No.1543/2013 on the files of the Motor Accidents Claims Tribunal, Ernakulam.

¶20

The appellant is the 3^rd respondent in the said claim petition, which was filed by the 3^rd respondent in this appeal, seeking compensation for the injuries sustained to him in a motor accident that occurred on 08.11.2012. According to the 3^rd respondent/claimant, the accident occurred when he was travelling as a pillion rider on a motorcycle bearing registration No.KL-39D 8296 through Puthencruz – Thiruvamkulam road, it was knocked down by a KSRTC stage carriage bearing registration No.KL-15 7936. The said vehicle was being driven by the 1^st respondent herein and owned by the 2^nd respondent herein. The said vehicle was insured with the appellant herein. The claim petition was submitted in such circumstances seeking compensation.

¶21

The 1^st and 2^nd respondents did not appear and were set ex-parte. The appellant/3rd respondent filed a written statement admitting the coverage of policy in respect of the said vehicle but disputing the negligence on the part of the driver of the KSRTC bus. According to them, the accident occurred due to the negligence on the part of the rider of the motorcycle on which the 3^rd

¶22

M.A.C.A. No.2174/2017

¶23

: 3 :

¶24

respondent/claimant was travelling.

¶25

The evidence in this case consists of the oral evidence of PWs 1 and 2 and Exts.A1 to A6 from the side of the claimants. No evidence was adduced from the side of the respondents.

¶26

After examining the materials placed on record, the tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 1^st respondent in the claim petition and being the insurer of the said vehicle, the appellant was held liable to pay the compensation. The quantum of compensation was fixed as `1,32,600/- and this appeal is submitted by the appellant challenging the said award.

¶27

Heard Sri.V.P.K. Panicker, the learned counsel appearing for the appellant and Sri. Alex Antony Sebastian appearing for the 2^nd respondent. Even though notices to respondents 1 and 3 were served, they did not appear.

¶28

Today, when the matter came up for consideration, the learned counsel for the appellant brought the notice of this Court to the judgment passed by this Court in M.A.C.A. No.1004/2016. The said judgment was passed in an appeal filed by the appellant herein, challenging the award passed in OP(MV) No.1604/2013 dated 06.11.2015 by the Motor Accident Claims Tribunal, Ernakulam, which was filed by the rider of the motorcycle on which the 3^rd

¶29

M.A.C.A. No.2174/2017

¶30

: 4 :

¶31

respondent was travelling, seeking compensation of the injuries sustained to him in the very same accident.

¶32

The main challenge raised by the appellant in the said

¶33

appeal was against the amendment of the claim petition at the instance of the claimant therein, by converting the same into a petition under Section 163A of the Motor Vehicles Act even though the same was originally filed under Section 166 of the Motor Vehicles Act. After considering the materials placed on record, this Court allowed the said appeal, setting aside the award and the matter was remanded back to the tribunal for fresh consideration, with a direction to the tribunal to consider the question of negligence by treating it as an application under Section 166 of the Motor Vehicles Act. It is reported that the said claim petition is even now pending adjudication before the trial court.

¶34

In this case, one of the challenges is against the finding of the tribunal regarding the negligence. The claim petition in this case and the claim petition in OP(MV) 1604/2013 are arising from the very same accident. Therefore, it is pointed out that since an adjudication with respect to the negligence in respect of the very accident is now pending before the tribunal, this appeal may also be remanded back so that the said issue can be considered together in both these cases.

¶35

M.A.C.A. No.2174/2017

¶36

: 5 :

¶37

After considering all the materials placed on record, I find some force in the contentions put forward by the learned counsel for the appellant. This is particularly because any decision in this appeal may have consequences in the outcome of the claim petition in OP(MV) No 1604/2013, which is now pending before the tribunal. Therefore, it is likely to cause prejudice to the parties therein. Therefore, I am of the view that the said question be decided afresh by the tribunal after considering the evidence to be adduced.

¶38

In such circumstances, the award dated 20.03.2017 in OP(MV) No.1543/2013 passed by the Motor Accident Claims Tribunal, Ernakulam, is set aside for the limited purpose of considering the question of negligence. It is clarified that the finding of the Tribunal on the quantum of compensation fixed by the tribunal in this case is confirmed. The tribunal is directed to reconsider the question of negligence based on the evidence already adduced and to be adduced by the parties concerned, and a fresh decision be taken on the said issue in accordance with the law. It is reported that OP(MV) No.1604/2013 was posted before the tribunal on 26.10.2023. Therefore, the parties are directed to appear before the tribunal on 26.10.2023, and the tribunal shall take up the matter along with OP(MV) No.1604/2013 for further adjudication. Since respondents 1 and 3 are not appearing before this Court, notices

¶39

M.A.C.A. No.2174/2017

¶40

: 6 :

¶41

shall be served on them by the tribunal before proceeding further. As regards the amount already deposited by the insurance company, including the statutory deposit, it is clarified that such deposit shall be subject to the final outcome of the decision to be taken by the tribunal.

¶42

Sd/ZIYAD RAHMAN A.A. JUDGE

¶43

ncd

The New India Assurance Co. Ltd. v. Anishkumar V.C

Case brief

What is this about?

What did the court decide?

The New India Assurance Co. Ltd. v. Anishkumar V.C

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

Prasanna Vs Saleena

Velayudhan Vs v.Guruvayoorappan(Deleted)(*Restored)

Fazal (Legal Heir of R2) Vs Leela

Sunilkumar Vs State of Kerala

The Oriental Insurance Co. Ltd. Vs K.A. Jaison

N.v.Bicheevi Vs Moideen Haji