Jacob v. Sarath and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 9[TH] DAY OF NOVEMBER 2023/ 18TH KARTHIKA, 1945 ``` ## **`MACA NO. 1347 OF 2016`** ``` OP(MV) 501/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ``` ## **`IRINJALAKUDA`** ## **`APPELLANT/PETITIONER:`** ``` JACOB, S/O DEVASSY, PONTHOKKAL HOUSE, CHENGALOOR P.O. , MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ``` ``` BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 SARATH, S/O MOHANAN KARAPULLY HOUSE, SN NAGAR, IRINJALAKUDA-680121` - `2 THOBIAS ANTONY, S/O ANTONY, CHERUSSERY HOUSE,276/2, OLLUR, THRISSUR-680306` - `3 THE MANAGER, UNITED INDIA INSURANCE CO.LTD, IRINJALAKUDA BRANCH, IRINJALAKUDA-680121` - `4 E.B.ROBINSON, EDAKULATHUR HOUSE, KUTTUR P.O., THRISSUR- 680013` - `5 BIJU GEORGE, S/O GEORGE, ALUKAL HOUSE, IRINJALAKUDA-680121` ``` BY ADVS. SRI.N.AJITH SMT.E.U.DHANYA SMT.P.A.REZIYA SRI.V.BINOY RAM SRI.LINDONS C.DAVIS ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.11.2023, ALONG WITH MACA.735/2016, 1809/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. Nos.1347, 1809 & 735 of 2016 : 2 : ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY,THE 9[TH] DAY OF NOVEMBER 2023/18TH KARTHIKA, 1945 ``` ## **`MACA NO. 735 OF 2016`** ## **`OP(MV) 501/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,`** ## **`IRINJALAKUDA`** ## **`APPELLANT/ADDITIONAL RESPONDENT NO.5:`** ``` BAIJU GEORGE, S/O ALUKKAL GEORGE, IRINJALAKUDA VILLAGE AND DESOM, THRISSUR DISTRICT. ``` ``` BY ADV SRI.T.N.MANOJ ``` ## **`RESPONDENTS/PETITIONER AND RESPONDENTS 1,2,3 & 4:`** - `1 JACOB, S/O PONTHOKKAND DEVASSY, CHENGALOOR DESOM AND VILLAGE, MUKUNDAPURAM TALUK - 680 121.` - `2 SARATH , S/O. MOHANAN KARAPULLY HOUSE S.N. NAGAR, IRINJALAKUDA – 680121.` - `3 THOBIAS ANTONY, S/O.ANTONY CHERUSSRY HOUSE 276 II-OLLUR, THRISSUR DISTRICT-680307.` - `4 THE MANAGER, UNITED INDIA INSURANCE COMPANY LTD., IRINJALAKUDA BRANCH - 680 121.` ``` 5E.P. ROBINSON, EDAKALATHUR HOUSE KUTTUR P.O., TRISSUR – 680307. BY ADVS. SRI.A.N.SANTHOSH SRI.N.AJITH SMT.E.U.DHANYA SMT.P.A.REZIYA SRI.V.BINOY RAM SRI.LINDONS C.DAVIS ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.11.2023, ALONG WITH MACA.1347/2016 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. Nos.1347, 1809 & 735 of 2016 : 3 : ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY,THE 9[TH] DAY OF NOVEMBER 2023/18TH KARTHIKA, 1945 ``` ``` MACA NO. 1809 OF 2016 ``` ## **`OP(MV) 501/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,`** ## **`IRINJALAKUDA`** ## **`APPELLANT/2ND RESPONDENT:`** ``` THOBIAS ANTONY, S/O.ANTONY, CHERUSSERY HOUSE, 216 II, OLLUR, THRISSUR DISTRICT. BY ADVS. SRI.LINDONS C.DAVIS SMT.E.U.DHANYA ``` ## **`RESPONDENTS/PETITIONER/RESPONDENTS 1,3,4 & 5:`** ``` 1JACOB, S/O.DEVASSY, PONTHOKARAN OUSE,CHENGALOOR VILLAGE, MUKUNDAPURAM TALUK,THRISSUR DISTRICT, PIN 680 581. ``` ``` 2SARATH, S/O.MOHANAN, KARUPULLY HOUSE,S.N.NAGAR, IRINJALAKUDA, THRISSUR DISTRICT, PIN 680 121 ``` - `3 THE MANAGER, UNITED INDIA INSURANCE CO. LTD., IRINJALAKUDA BRANCH, THRISSUR DISTRICT, PIN 680 121` - `4 E.P.ROBINSON, EDAKALATHUR HOUSE, KUTTUR.P.O., THRISSUR DISTRICT, PIN 680013` ``` 5BAIJU GEORGE, S/O.GEORGE, ALUKKAL HOUSE, IRINJALAKUDA VILLAGE, THRISSUR DISTRICT, PIN 680 121. ``` ``` BY ADVS. SRI.A.N.SANTHOSH SRI.N.AJITH SRI.K.N.ABHILASH SRI.V.BINOY RAM SRI.T.N.MANOJ SRI.T.J.LAKSHMANAN IYER ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.11.2023, ALONG WITH MACA.1347/2016 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. Nos.1347, 1809 & 735 of 2016 : 4 : ## **`JUDGMENT`** ## **`[MACA Nos.1347/2016, 735/2016, 1809/2016]`** All these appeals arise from the award passed by the Motor Accident Claims Tribunal, Irinjalakkuda in O.P.(M.V.) No.501/2004. The said claim petition was submitted by the petitioner therein, who is the appellant in M.A.C.A. No.1347/2016, seeking compensation for the injuries sustained to him in a motor accident that occurred on 16.02.2002. For convenience, the parties herein are referred to as per their respective ranks in the claim petition. 2. According to the petitioner, the accident occurred when the motorcycle bearing registration No.KL 8 T 6335, the vehicle on which the petitioner was a pillion rider, collided with another motorcycle bearing Registration No.KL 8 J 3566. The case of the petitioner was that the accident was due to the rash and negligent driving of the motorcycle bearing Registration No.KL 8 J 3566, by the 1[st] respondent. The 2[nd] respondent owned the said motorcycle and it was insured with the 3[rd] respondent. Subsequently, respondents 4 and 5 were impleaded, M.A.C.A. Nos.1347, 1809 & 735 of 2016 : 5 : as they were the insured and the RC owner of the said vehicle. The said impleadment was consequent to the contentions raised by the Insurance Company. 3. The respondents 1 and 2 remained ex parte. The 3[rd] respondent Insurance company filed a written statement admitting the coverage of policy in respect of the motorcycle bearing Registration No.KL 8 J 3566 but contended that the insured and the registered owner of the vehicle were not made parties. 4. Supplementary 4 and 5 respondents filed a separate written statement contending that the vehicle already sold away prior to the accident and that they had no connection with the vehicle on the date of the accident. 5. Initially, the trial was conducted in which Exts.A1 to A9 were marked from the side of the claimant. From the side of the respondents Ext.B1 policy was marked. After the said trial, the Tribunal passed an award, holding the respondents 1, 4 and 5 liable to pay the compensation. The quantum of compensation was fixed as Rs.88,000/-, and the same was recoverable from respondents 1, 4 and 5 with interest @ 7% per annum. The 3[rd] respondent Insurance Company was exonerated on the ground M.A.C.A. Nos.1347, 1809 & 735 of 2016 : 6 : that, the 1[st] respondent drove the said motorcycle without any valid driving license. The said award was challenged by the 4[th] respondent, before this Court by filing M.A.C.A. No.2568/2009. The said M.A.C.A. was allowed, as per judgment dated 15.02.2013, by setting aside the award and remanding the matter back to the Tribunal for fresh disposal. The main contention raised in the said appeal by the 4[th] respondent was that he had already sold the said vehicle to a third party, and he had no liability in respect of the accident. 6. After the remand, the Tribunal passed the award which is impugned in this appeal, wherein the 4[th] respondent was exonerated from the liability and the liability was imposed upon the respondents 1, 2 and 5. The quantum of the award remained the same, which is Rs.88,000/-. 7. M.A.C.A. No.1347/2016 is filed by the claimant in the claim petition, challenging the exoneration of the Insurance Company from the liability and also seeking enhancement of compensation. M.A.C.A. No.735/2016 is filed by the additional 5[th] respondent, challenging the liability imposed upon him. M.A.C.A. No.1809/2016 is filed by the 2[nd] respondent, challenging M.A.C.A. Nos.1347, 1809 & 735 of 2016 : 7 : the liability imposed upon him. 8. Heard Sri. A.N.Santhosh, learned counsel appearing for the petitioner, Smt.Dhanya E.U., learned counsel appearing for the 2[nd] respondent, Smt.P.A. Reziya and Sri.T.J. Lakshmanan Iyer, appearing for the 3[rd] respondent and Sri.T.N. Manoj, learned counsel appearing for the additional 5[th] respondent. 9. One of the main disputes in this case relates to the exoneration of the Insurance Company from liability. It is discernible from the award that one of the main contentions raised by the Insurance Company was that the insured had violated the policy conditions as the insured permitted the 1[st] respondent to ride a motorcycle without any valid driving license. The contention was accepted by the Tribunal when the initial award was passed, and in the subsequent award also, the said contention was upheld. As far as the 1[st] respondent/rider is concerned, he never appeared in any round of the litigations and did not deny the allegation of driving the vehicle without license. Thus, it is established that he drove the vehicle at the relevant time without a valid driving license and therefore, there was violation of policy conditions. However, in the award passed by M.A.C.A. Nos.1347, 1809 & 735 of 2016 : 8 : the Tribunal, the Insurance Company was exonerated from the liability, and the liability was imposed upon the owner and the driver of the said vehicle. As far as the exoneration of the Insurance Company is concerned, the same can be done only in cases where there was no policy to cover the risk, which is the subject matter of the claim petition. In this case, the coverage of the policy is already admitted by the Insurance company; therefore, even if there is any violation of policy conditions, the Insurance Company would be liable to pay compensation to a third party. The only remedy available to the Insurance Company is to recover the amount awarded by the Tribunal from the owner or driver of the vehicle in question, after satisfying the award at the first instance. Thus, the complete exoneration of the Insurance Company on the grounds of violation of policy conditions was unwarranted and therefore, it requires to be interfered with. Thus, the finding of the Tribunal exonerating the Insurance Company is set aside subject to the condition that the Insurance Company shall be at liberty to recover the said compensation from the owner and the rider of the said motorcycle. M.A.C.A. Nos.1347, 1809 & 735 of 2016 : 9 : 10. The next aspect that arises for consideration is from whom the insurance company can affect the recovery after satisfying the award. In these appeals, serious disputes relating to the said question have been raised at the instance of the 2[nd] and additional 5[th] respondents. As far as the 2[nd] respondent is concerned, he was originally impleaded in the party array of the claim petition in his status as the registered owner of the said vehicle. Subsequently, a written statement has been filed by the insurance company wherein they raised a contention that the policy issued to the vehicle stands in the name of the 4[th] respondent and the vehicle at the relevant time was owned by the 5[th] respondent. The claimant impleaded the 4th and 5th respondents consequent to the contention raised by the insurance company. The 4[th] respondent raised a specific contention that, he had already transferred the vehicle even prior to the accident and as on the date of the accident, which was on 16.02.2002, the vehicle stood registered in the name of the 2[nd] respondent. In the award passed by the tribunal after the remand by the court, the said contention was accepted by the tribunal, and the 4[th] respondent was exonerated from liability. M.A.C.A. Nos.1347, 1809 & 735 of 2016 : 10 : Consequently, the liability to pay the compensation was imposed upon the 1[st] respondent, being the rider of the vehicle, and the 2[nd] respondent, being the registered owner of the vehicle. Even though the liability was imposed upon the 5[th] respondent as per the award passed, there is no specific finding in the award passed by the tribunal after the remand as to the reason why liability was imposed upon him. 11. The relevance of the contentions raised by the 2[nd] respondent is in relation to the said aspect. The specific contention put forward by the 2nd respondent in his written statement is that he had transferred the vehicle as early as the year 1999 to one Seetharam Motors at Thrissur, and he also executed the necessary documents for transferring the vehicle. It was specifically contended that as on the date of the accident, the 2[nd] respondent was not in possession of the said vehicle and therefore, no liability could be imposed upon him. Apart from submitting the written statement with the said contention, no evidence was adduced in support of the same before the Tribunal. However, in MACA No.1809/2016, which is the appeal filed by the 2[nd] respondent, Annexure-A was produced in support M.A.C.A. Nos.1347, 1809 & 735 of 2016 : 11 : of the said contention. Annexure-A is a kacheet, claimed to have been executed by the additional 5[th] respondent before the Judicial First Class Magistrate’s Court, Irinjalakuda for the release of the vehicle, which was seized as part of the investigation in the crime registered in connection with the incident, which is the subject matter of the claim petition. In Annexure-A, the 5[th] respondent had stated that the vehicle was in his possession. By placing reliance upon Annexure-A, it was contended by the 2[nd] respondent that the said document would clearly establish the fact that the vehicle was not in his possession at the time of the accident and, therefore, no liability could be imposed upon him. However, the learned counsel for the 5[th] respondent places reliance upon the decision rendered by the Hon’ble Supreme Court in Naveen Kumar v. Vijay Kumar and others [(2018) 3 SCC 1], wherein after elaborately discussing the legal provisions in the Motor Vehicles Act, it was held that, even if the vehicle was transferred, the registered owner would continue to be liable to pay the compensation arising from a motor accident so long as the registration stands in his name. M.A.C.A. Nos.1347, 1809 & 735 of 2016 : 12 : 12. Thus, in the light of the categorical observations made by the Hon’ble Supreme Court in Naveen Kumar ’s case, the 2[nd] respondent cannot be absolved from the liability as he continues to be the registered owner of the vehicle even as on the date of the accident. It is an undisputed fact. However, the learned counsel for the 2[nd] respondent places reliance upon a decision rendered by this Court in Sreekumar v. Abdeen and others [2013(3) KLT 542] wherein this Court considered a similar issue and held that even though the primary liability would be upon the registered owner, he can get the compensation recovered from the transferee of the said vehicle after satisfying the award. 13. Thus, the legal position, that is, discernible from the aforesaid decision, is to the effect that the registered owner will be responsible for paying the compensation so long as his name is shown as the owner of the vehicle as per the records relating to the registration of the said vehicle. But that would not preclude such registered owner from getting the said amount recovered from the person in possession of the said vehicle at the relevant time by way of transfer of the vehicle effected before the date of the accident. The basic liability in a claim for a motor accident is M.A.C.A. Nos.1347, 1809 & 735 of 2016 : 13 : a tortious liability, which has to be mulcted upon the person who was party to such tortious act. Therefore, the person who was in possession of the vehicle and had permitted another person to ride the motorcycle cannot escape from the said liability. However, in this case, even though the said contentions were raised, there was nothing on record before the tribunal to adjudicate upon the question of transfer of the said vehicle in favour of the 5[th] respondent. Despite such documents, a conclusion was arrived at, imposing a liability upon the 5[th] respondent along with respondent Nos.1 and 2. 14. On the other hand, the 2[nd] respondent, even though he raised a specific contention that he transferred the vehicle before the date of the accident and as on the date of the accident, he did not have possession of the vehicle, he also did not adduce any evidence in support of the said contention. The explanation offered by the 2[nd] respondent in this regard is that, as he transferred the said vehicle as early as in the year 1999 to one Seetharam Motors at Thrissur, he was not in possession of any of the documents indicating the details of the person who was in actual possession of the said vehicle. It was pointed out that only M.A.C.A. Nos.1347, 1809 & 735 of 2016 : 14 : after the award was passed, he could obtain Annexure A document, which indicates the role of the 5[th] respondent as far as the vehicle is concerned. Apparently, the 2[nd] respondent was not in a position to adduce evidence due to the reasons mentioned above, which is a matter to be considered while adjudicating this aspect. Therefore, I am of the view that, even though the 2[nd] respondent has to be mulcted with the liability to pay the compensation being the registered owner of the said vehicle, his right to get the amount recovered from the person in possession of the vehicle, cannot be denied in case, the 2[nd] respondent is able to establish that the vehicle was indeed transferred to some other person. As observed above, due to the reasons mentioned above, the 2[nd] respondent could not adduce evidence. Therefore, I am of the view that, even while holding him responsible for paying the compensation, he has to be granted an opportunity to adduce evidence to establish his contention that he had transferred the vehicle prior to the date of the accident, for the limited purpose of getting the amount of award recovered from such transferee. 15. In M.A.C.A.1347/2016, which is the appeal filed by the M.A.C.A. Nos.1347, 1809 & 735 of 2016 : 15 : petitioner in the claim petition, they have raised mainly two contentions that the exoneration of the insurance company from the liability was not justifiable, and they also sought enhancement of compensation. As far the 1[st] issue is concerned, this Court has already decided the same and set aside the exoneration of the insurance company from the liability subject to the right of recovery of the insurance company from the owner and rider of the motor cycle. As regards the second question, the crucial aspect to be noticed is that, in M.A.C.A. 2568/09, which was filed against the initial award passed, the said award was set aside by this Court and the matter was remanded back to the tribunal for fresh consideration. Therefore, the quantum of compensation fixed as per the same was also set aside. As far as the 2[nd] award is concerned, even though the quantum was fixed as Rs.88,000/-, the main focus of adjudication was on the question of the liability of the 4[th] respondent to pay the compensation. The matters which formed the basis for fixation of the amount as Rs.88,000/is not discernible from the same. Therefore, I am of the view that the tribunal can consider the question as to whether any higher amount needs to be granted as compensation to the petitioner. M.A.C.A. Nos.1347, 1809 & 735 of 2016 : 16 : To be precise, even while directing the tribunal to reconsider the quantum of compensation, I find that the amount of compensation already fixed by the tribunal can be deposited by the insurance company in the first instance. In the light of the aforesaid observations and findings, all these appeals are disposed of in the following manner: (1) The finding of the tribunal in the award dated 28.02.2014 exonerating the insurance company from the liability is hereby set aside. It is declared that the insurance company shall be liable to pay the compensation at the first instance, and upon satisfaction of the award, they shall be at liberty to recover the said compensation from the registered owner and rider of the motorcycle. (2) The 2[nd] respondent, being the registered owner of the motorcycle, is held responsible to pay the compensation to the insurance company. But he shall be at liberty to recover the compensation from the 5[th] respondent if he is able to show that the vehicle was indeed transferred to the 5[th] respondent. (3) As far as the liability of the 5[th] respondent is concerned, the tribunal has to adjudicate the said question afresh, and the respective parties shall be at liberty to adduce evidence in support of their contentions. (4) The tribunal shall also be at liberty to reassess the compensation in the light of the contentions raised by the petitioner and the M.A.C.A. Nos.1347, 1809 & 735 of 2016 : 17 : evidence, if any, adduced by them. With the aforesaid observations, these appeals are disposed of by remanding back to the tribunal for fresh adjudication on the issues mentioned above. The parties are directed to appear before the tribunal on 11.12.2023. The appellants in MACA No.1809/2016 and MACA No.735/2016 shall be entitled to get the statutory deposit made by them released upon submitting appropriate applications before the tribunal. It is clarified that this court has not interfered with the findings of the tribunal exonerating the 4[th] respondent. Sd/ZIYAD RAHMAN A.A. JUDGE ncd/scs