Eandi Vasu v. Ashraf and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 WP(C).No. 3375 of 2009(B) ------------------------OPMV.564/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... PETITIONER(S): --------------- EANDI VASU, S/O.KRISHNANKUTTY, PADINHAREKKARA POST, PURATHUR AMSOM, TIRUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.C.M.MOHAMMED IQUABAL RESPONDENT(S): --------------- 1. ASHRAF, S/O.MUHAMMED, PALAKKA VALAPPIL HOUSE, PADINHAREKKARA POST, PURATHUR AMSOM, TIRUR TALUK, MALAPPURAM DISTRICT. 2. M.ALI, S/O.AHAMMED, MULAKKAL HOUSE, KOOTTAYI POST, TIRUR TALUK, MALAPPURAM DISTRICT. 3. UNITED INDIA INSURANCE CO. LTD., SABKA BUILDING, THAZHEPPALAM, TIRUR, MALAPPURAM DISTRICT. - *4. PALLIVALAPPIL MANI, S/O.VELAYUDHAN @ VELAI, ASHANPADI, KOOTTAYI POST, TIRUR TALUK, MALAPPURAM DISTRICT. Deleted. 5. P.C.ABOOBACKER, S/O.MOIDEENKUTTY, PALAKKAVALAPPIL CHERIYA OTTAYIL VEEDU, POST KOOTTAYI, TIRUR TALUK, MALAPPURAM DISTRICT. *NAME OF THE 4[th] RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 5.1.2011 IN I.A.NO.17483/10. ADV. SRI.A.A.MOHAMMED NAZIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N.RAVINDRAN, J. ----------------------------------------W.P(C).No.3375 of 2009 ----------------------------------------Dated this the 31[st] day of January, 2011** ## **JUDGMENT** The petitioner is the father of a boy aged 14, who while on his way to school sustained fatal injuries in a motor accident on 25.5.1996. The petitioner along with his wife, the mother of the deceased boy, has filed O.P.(MV) No.564 of 2006 in the Motor Accidents Claims Tribunal, Tirur claiming payment of the sum of Rs.5 lakhs as compensation. In the claim petition, the owner, driver and insurer of the vehicle in which the claimants’ son was travelling and the driver and owner of the goods vehicle which was also involved in the accident are parties. The claim petition is styled as one filed under sections 140, 163-A and 166 of the Motor Vehicles Act, 1988. The pleadings disclose that while the vehicle in which the deceased boy was travelling was insured by the third respondent herein under a valid policy of insurance, the other vehicle involved in the accident was not insured during the relevant time. After the trial of the case was over, the claimants filed I.A.No.3062 of 2008 to amend the claim petition by deleting ## **W.P(C).No.3375 of 2009** -:2:- the reference to sections 140 and 166 from the heading of the application. They also prayed for incorporating the following averments in column 28 of the claim petition:- _“2) The petitioners are claiming compensation u/s 163(A) of M.V.Act. The accident occurred due to the use of the motor vehicle as trekker bearing register No.KL 9.9379 and mini lorry bearing register No.KL 10A 7417. As per our information the mini lorry was not insured at the time of accident. As per 163(A) of the M.V.Act the petitioners are entitled to claim the compensation from the owner and authorized insurer of either of the vehicle involved in the accident._ _3) Petitioners are the legal heirs of the deceased and are entitled to claim compensation making respondents No.2 and 3 jointly and severally liable to pay compensation as prayed for herein.”_ The claimants also prayed for deleting the last paragraph in column 28 as it originally stood. The third respondent filed a counter affidavit objecting to the proposed amendments. The main contention raised was that the application is belated. By Ext.P5 order passed on 19.11.2008 the Motor Accidents Claims Tribunal, Tirur dismissed I.A.No.3062 of 2008. The Tribunal held ## **W.P(C).No.3375 of 2009** ## -:3:- that the claimants had not opted to be governed by section 163-A of the Motor Vehicles Act before the issues were settled and therefore the application filed by them to amend the claim petition, after evidence was recorded, cannot be entertained. Ext.P5 is under challenge in this writ petition. 2. I heard Sri.C.M.Mohammed Iquabal, learned counsel appearing for the petitioner and Sri.A.A.Mohammed Nazir, learned counsel appearing for the 3[rd] respondent insurer. I have also considered the pleadings and the materials on record. The learned counsel appearing for the petitioner contended that as the claim petition was filed as one under sections 140, 163-A and 166 of the Motor Vehicles Act, 1988 the Tribunal ought to have allowed the application for amendment and permitted the claimants to seek compensation under section 163-A of the Motor Vehicles Act. The learned counsel also submitted that the Tribunal had not before the issues were settled, directed the claimants to opt to be governed either by section 163-A or section 166 of the Motor Vehicles Act and such a procedure having not been adopted, the Tribunal erred in rejecting the application on that ground. Per contra Sri.Mohammed Nazir, the learned counsel appearing for the insurer, contended relying on the decision of a ## **W.P(C).No.3375 of 2009** -:4:- learned single Judge of this Court in _**National Insurance Co. Ltd. v. Jabbar**_ , 2007 (1) KLT 331 that in view of the provisions contained in section 163-B of the Motor Vehicles Act, the claimants ought to have elected or opted to proceed either under section 163-A or under section 166 of the Act and as the claimants did not exercise the option in time, the belated request for amendment of the claim was rightly rejected by the Tribunal. 3. A learned single Judge of this Court has in _**National Insurance Co. Ltd. v. Jabbar**_ taken note of the fact that claim petitions would have been filed invoking both the provisions, that such claim petitions may be pending and therefore the parties should be given an opportunity to opt to proceed either under section 163-A or under section 166 of the Act. The learned single Judge has, in the aforesaid decision held as follows:- _“14. The provisions under S.163-A and S.166 being different, one cannot pursue the remedies under both the provisions simultaneously. He has to opt/elect to go either for proceedings under S.163-A or those under S.166. Construed so, it could well be pointed out that it is appropriate and optimal that the option or election is exercised by the claimant while invoking the Tribunal's jurisdiction, that is, at the institution of the application._ ## **W.P(C).No.3375 of 2009** -:5:- _15. Having regard to the social welfare concept behind constituting the Tribunals and the fact that litigations of such nature relating to claim for compensation on account of death or bodily injury, would have already been filed invoking both the provisions and may be pending, the point of time for the claimant to exercise option to confine under Ss.163-A or 166 could be during the pendency of the matter before the Tribunal, without affecting the rights of parties to a fair trial and within the framework of the law, as laid in Deepal Girishbhai (supra). Propriety would require that the election by the claimant as between the two different proceedings under Ss.163-A and 166 is to be made at or before the settlement of issues. If option is exercised at least at that stage, the opposite party could be granted, if necessary, a further opportunity to place further pleadings on record before the parties go to trial, after the settlement of issues. Such trial will not deflect the course of justice, but will lead to an end of the lis, on a complete adjudication of the issues that would arise on the rival contentions. No injustice would be caused by such an approach. On the one hand, would be the claimant, a victim of a motor accident or his dependents, while on the other, would be the entitlement of the driver, owner or insurer to a just and fair trial to contest, either in an adjudication under_ ## **W.P(C).No.3375 of 2009** -:6:- _S.166 or for an immediate relief under S.163-A. Viewed in this angle, it is just and proper to extend to the claimant an opportunity, at or before the framing of the issues, to opt among the two proceedings. Upon such choice being exercised, the respondents would be entitled to place such further pleadings that may be necessary on the facts and circumstances of the case. If a choice is not so made, it would entail disposal of the claim petition, unless the Tribunal gives an opportunity to exercise option, may be on such terms as to costs, as it may deem fit.”_ The learned single Judge has in the aforesaid decision held that the option to choose between the two different proceedings should be made at or before framing of issues so that the opposite side is not prejudiced and that no injustice would be caused to the opposite side or to the claimant by stipulating that an option should be exercised to choose either of the two procedures before the trial starts. In the instant case, the insurer does not have a case that before the issues were settled the claimants were made aware of the necessity to make an election. The Tribunal also does not state in Ext.P5 order that such an opportunity was given to the petitioners at that stage. In the instant case, the claimants are the parents of a boy, who was ## **W.P(C).No.3375 of 2009** ## -:7:- aged 14 at the time of the accident. Having regard to the purpose underlying the enactment of section 163-A of the Motor Vehicles Act and the fact that the claimants had filed the claim petition styling it as one under sections 140, 163-A and 166 of the Motor Vehicles Act, I am of the opinion that the Tribunal ought to have allowed the application for amendment. In the result I allow the writ petition, quash Ext.P5 and allow I.A.No.3062 of 2008. The claimants shall carry out the amendment and shall serve copies of the amended claim petition on the learned counsel appearing for the opposite parties within two weeks from the date of receipt of a certified copy of this judgment. The Tribunal shall afford the opposite parties an opportunity to file additional pleadings and shall dispose of the claim petition expeditiously and in any event within six months from the date of receipt of a copy of this judgment. **P.N.RAVINDRAN, Judge.** **ahg.** **P.N.RAVINDRAN, J. --------------------------W.P(C).No.3375 of 2009 ----------------------------** ## **JUDGMENT** **31[st] January, 2011**