Kunhiveettill Mohammed Aslam v. T. Ramesh Babu, Nazar K, and United India Insurance Co. Ltd.

MACA NO.2036 OF 2011 & CO NO.115 OF 2021 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 27[TH] DAY OF SEPTEMBER 2021 / 5TH ASWINA, 1943 MACA NO. 2036 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 1387/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , THALASSERY, KANNUR APPELLANT/S:** KUNHIVEETTIL MOHAMMED ASLAM S/O. KHADERKUTTY, KUNHIVEETTIL HOUSE, CHERUVATHALAMOTTA, MANIYOOR, KANNUR DISTRICT. BY ADV SRI.T.M.ABDUL LATHEEF ## **RESPONDENT/S:** 1 T.RAMESH BABU, S/O. KUNHAMBU, "MA" NIVAS, KOODALI P.O., KANNUR DISTRICT-670 592. 2 NAZAR K. S/O. MAYANKUTTY, KARAKANDY HOUSE, CHEKKUKULAM, P.O.MANIYOOR, KANNUR DISTRICT-670 592. 3 THE UNITED INDIA INSURANCE CO. LTD. DIVISIONAL OFFICE, KANNUR-1. BY ADVS. K.RAJESH SUKUMARAN SMT.K.K.RAZIA K.K.RAZIA P.K.SANTHAMMA THIS APPEAL HAVING COME UP FOR ADMISSION ON 27.09.2021, ALONG WITH CO.115/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO.2036 OF 2011 & CO NO.115 OF 2021 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 27[TH] DAY OF SEPTEMBER 2021 / 5TH ASWINA, 1943** **CO NO. 115 OF 2021 IN MACA 2036/2011** **AWARD DT.7.11.08 IN OP(MV) 1387/2004 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY** ## **PETITIONER/S:** T.RAMESH BABU, AGED 55 YEARS S/O. KUNHAMBU, M.A NIVAS, KOODALI P.O., KANNUR-670 BY ADVS. K.RAJESH SUKUMARAN P.K.SANTHAMMA K.K.RAZIA ## **RESPONDENT/S:** 1 KUNHIVEETTIL MOHAMMED ASLAM, S/O. KHADERKUTTY, AGED 38 YEARS, KUNHIVEETTIL HOUSE, CHERUVATHALAMOTTA, MANIYOOR, P.O. CHEKKIKULAM, KANNUR-670 592 2 NAZAR K, S/O. MAYANKUTTY, KARAKANDY HOUSE, AGED 40 YEARS, MANIYOOR, P.O. CHEKKIKULAM, KANNUR-670 592 3 THE UNITED INDIA INSURANCE CO.,DIVISIONAL OFFICE, FORT ROAD, P.O KANNUR-670 001, REP BY ITS MANAGER BY ADVS. T.M.ABDUL LATHEEF K.K.RAZIA THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 27.09.2021, ALONG WITH MACA.2036/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO.2036 OF 2011 & CO NO.115 OF 2021 3 ## **COMMON JUDGMENT** As the appeal and cross objection arise from the same impugned award in OP(MV) No.1387/2004 on the file of the Motor Accidents Claims Tribunal, Thalassery, they are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injury that he sustained in an accident on 05.01.2004. It was his case that, while he was walking along the Cheruvathalamotta road margin, a motor cycle bearing registration No.KL 13/J-8724 (motor cycle) driven by the 1[st] respondent, in a rash and negligent manner, hit the petitioner from behind. The petitioner fell down and sustained serious injuries including a fracture. He was treated as an inpatient in the AKG Memorial Hospital, Kannur till 15.01.2004. The petitioner was a carpenter by profession and earning a monthly income of Rs.5,000/-. The motor cycle was owned by the 2[nd] respondent and insured with the 3[rd] MACA NO.2036 OF 2011 & CO NO.115 OF 2021 4 respondent. The petitioner claimed a compensation of Rs.2,00,000/- from the respondents. 3. The respondents 1 and 2 though entered appearance, did not contest the proceedings. 4. The 3[rd] respondent had filed written statement admitting that the motor cycle had a valid insurance coverage. However, the 3[rd] respondent denied its liability to indemnify the 2[nd] respondent, on the ground that the 2[nd] respondent had not produced the vehicular documents for verification and as per the investigation conducted by the Chakkarakkal Police, the 1[st] respondent did not hold a valid driving license. Therefore, there was violation of the insurance policy conditions and the 3[rd] respondent had to be exonerated of its liability. 5. The petitioner got himself examined as PW1 and marked Exts.A1 to A4 in evidence. Ext.X1 disability certificate was also marked on his side. The 3[rd] respondent produced Ext.B1 copy of the charge sheet and marked it in evidence. 6. The Tribunal, after analyzing the pleadings and MACA NO.2036 OF 2011 & CO NO.115 OF 2021 5 materials on record, allowed the claim petition in part, by permitting the petitioner to recover an amount of Rs.1,39,500/- from the respondents 1 and 2. The 3[rd] respondent was exonerated of its liability in view of the violation of the policy conditions. 7. Aggrieved by the impugned award, the 1[st] respondent/driver has filed the appeal, and dissatisfied with the quantum of compensation and challenging the exoneration of the 3[rd] respondent/insurer, the petitioner has filed the cross objection. 8. Heard Sri. T.M. Abdul Lathiff, the learned counsel appearing for the appellant/1[st] respondent, Smt. K.K. Raziya, the learned counsel appearing for the 2[nd] respondent/owner, Smt.P.K. Santhamma, the learned counsel appearing for the 3[rd] respondent/insurer and Sri.Rajesh Sukumaran, the learned counsel appearing for the 1[st] respondent/cross objector/petitioner. 9. The questions that arises for consideration in the appeal are : 1. Whether exoneration of the 3[rd] respondent is MACA NO.2036 OF 2011 & CO NO.115 OF 2021 6 ## sustainable in law or not ? 2. Whether the appellant/1[st] respondent has made out cogent reasons to remand the case to the Tribunal for fresh consideration, to afford the appellant an opportunity to contest the case on merits. 3. Whether the cross objector/petitioner is entitled for enhancement of compensation. ## **Question No.1** 10. The bone contention of the 3[rd] respondent-insurer before the Tribunal was that, the 2[nd] respondent had violated the policy conditions by not producing the vehicular documents of the motor cycle and the 1[st] respondent did not hold a valid driving license. The contention was accepted by the Tribunal, and the 3[rd] respondent was absolved of its liability. 11. Section 149(4) of the Motor Vehicles Act, 1988 specifically provides that in case the insured has violated any of the insurance policy conditions, it is for the insurer to pay the compensation to the injured third party and recover the amount from the insured. MACA NO.2036 OF 2011 & CO NO.115 OF 2021 7 12. In the instant case, the Tribunal after finding that the 2[nd] respondent had not produced the vehicular documents and 1[st] respondent did not produce his driving license, exonerated the 3[rd] respondent from paying the compensation amount. 13. The above course adopted by the Tribunal is patently erroneous and wrong and against the above statutory provision and the decision of the Honourable Supreme Court in **Iyyapan vs. United India Insurance Co. Ltd. and another** [2013 (3) KLT SN 32] and a catena of decisions of this Court and the Honourable Supreme Court. 14. In the above factual and legal situation, I am of the considered opinion that the 3[rd] respondent/insurer is to pay the compensation amount to the petitioner as ordered by the Tribunal in the impugned award and then recover the same from the respondents 1 and 2, in case they have violated the insurance policy conditions. Thus, I answer Question No.1 and allow the cross objection to the above limited extent. ## **Question No.2** 15. The appellant/1[st] respondent has fairly conceded to MACA NO.2036 OF 2011 & CO NO.115 OF 2021 8 the fact that, although he received notice from the Tribunal, he did not contest the proceeding. It is his case that the Tribunal had wrongly assumed that he had engaged a counsel. The Tribunal on the above perception directed the 1[st] respondent to produce his driving license, but, he was unaware of the same. Consequently, the Tribunal proceeded with the matter and passed the impugned award by directing the respondents 1 and 2 to pay the compensation amount. 16. The appellant/1[st] respondent has produced before this Court photostat copies of certain documents, inter alia, to prove that, even though a charge sheet was filed, the criminal case had ended in acquittal. Therefore, the case of the petitioner is false. 17. The learned counsel appearing for the appellant also invited the attention of this Court to the FIR and contended that the person named in the FIR was not the appellant/1[st] respondent. Hence it was prayed that the matter be remitted back to the Tribunal so that the appellant/1[st] respondent could substantiate his defence before the Tribunal in accordance with law. MACA NO.2036 OF 2011 & CO NO.115 OF 2021 9 18. Notwithstanding the mandate under Order LXI rule 23A of the Code of Civil Procedure, that a case shall not be remanded without cogent reasons, on a consideration that the appellant/1[st] respondent was not given sufficient opportunity to contest the case on merits, and has now produced certain materials before this Court to substantiate his defence, I am of the considered opinion that the appellant has to be provided one more opportunity to contest the case on merits, to meet the ends of justice. Hence, I find cogent reasons to remand the claim petition back to the Tribunal, but subject to the stringent conditions that the appellant has compensate the petitioner by paying a substantial amount as cost for not contesting the case before the Tribunal and now dragging the petitioner to this Court. 19. It is on record that the appellant has deposited Rs.25,000/- before the Tribunal as a pre-requisite for filing the appeal. I hold that the said amount can be released to the petitioner as costs, for remanding the matter back to the Tribunal. Hence, I direct the Tribunal to forthwith release to the petitioner the amount of Rs.25,000/-, deposited by the MACA NO.2036 OF 2011 & CO NO.115 OF 2021 10 appellant/1[st] respondent by demand draft dated 11.08.2011, as cost of this proceeding. I answer Question No.2 accordingly. ## **Question No.3** 20. In the light of the fact that O.P.(MV) No.1387/2004 is remanded back to the Tribunal for fresh consideration, I hold that the appellant’s right to seek for further enhancement of compensation can be left open. The Tribunal shall along with the question of liability, that is whether the 1[st] respondent was negligent in causing the accident and whether the 2[nd] respondent has violated the policy conditions, also decide whether the petitioner is entitled to further compensation as per the precedents that are in vogue. The said course is dehors the right of the petitioner to seek for enhancement of compensation after the passing of the award. With the above reservation, the cross objection is disposed, but by reiterating the 3[rd] respondent/insurer to pay the entire compensation amount due to the petitioner as per the impugned award, with the right of recovery, if the 2[nd] respondent has violated the policy conditions. Question No.3 MACA NO.2036 OF 2011 & CO NO.115 OF 2021 11 is also answered as mentioned above. 21. In the result, I allow the appeal by remanding OP(MV) No.1387/2004 to the Tribunal for fresh consideration in accordance with law and untrammeled by any observation in this judgment. The Tribunal shall forthwith release the amount of Rs.25,000/- deposited by the appellant/1[st] respondent as compensatory cost to the cross objector/petitioner. The cross objection is also allowed to the limited extent ordered above by directing the 3[rd] respondent/insurer to pay the compensation amount awarded by the Tribunal as per the impugned award to the cross objector/petitioner within a period of 60 days from the date of receipt of a certified copy of the judgment, subject to the right of the 3[rd] respondent to recover the compensation amount from the insured, in case the Tribunal finds that the insured has violated the policy conditions. The parties are directed to appear before the Tribunal on **25.10.2021** either in person or through counsel. Keeping in mind the fact that the claim petition is of the year 2004, the Tribunal shall make every endeavor to MACA NO.2036 OF 2011 & CO NO.115 OF 2021 12 consider and dispose of the claim petition as expeditiously as possible. All interlocutory applications shall stand closed. The Registry shall forthwith transmit the lower court records to the Tribunal. Sd/- **C.S.DIAS JUDGE** rkc