High Court of KeralaSingle Judge2019-11-16Disposed of by remitting inter-se liability to ...

MACA No. 2893 of 2009 & O.P.(MAC) Nos.2929 & 2939 of 2012

Case / Petition Number:MACA No. 2893 of 2009; O.P.(MAC) Nos.2929 & 2939 of 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Anil K. Narendran
Judgment Date: 2019-11-16
Court Decision / Holding: The appeal and the original petitions are disposed of by remitting the inter-se liability between the vehicle owner and the insurer to the Motor Accidents Claims Tribunal, Thodupuzha, with directions to (i) determine whether the vehicle was used as a private vehicle or for hire; (ii) assess any policy breach; (iii) determine seating capacity and, in case of overload, apportion the amount as per National Insurance Co. Ltd. v. Anjana Shyam and direct the owner to pay the balance. If the insurer deposited the entire amount, the excess may be realized from the owner. The findings on inter-se liability in the impugned awards are set aside.
Final Disposition: Disposed of by remitting inter-se liability to the Tribunal with directions to determine vehicle use, policy breach, seating capacity, and apply apportionment; prior inter-se findings set aside.

Parties to the Case

Appellants / Petitioners

Shiby S/o Thomas

Respondents

Thambi S/o Poulose
Oriental Insurance Company Ltd.
Aliyas @ Joy
Eldouse S/o Aliyas
Snoby D/o Aliyas
Jancy W/o Baby P.K.
Baby P.K.

Legal Representation & Advocates

Counsels for Petitioners

• C.S. Manilal
• S. Nidheesh

Counsels for Respondents

• P. Jacob Mathew
• George Cherian Thiruvalla
• T. J. Michael
• Shaji Kuriyan

Case Synopsis & Summary

This Kerala High Court judgment deals with a motor vehicle accident involving a jeep (KL-08/E-8501) owned by the appellant and insured. The Tribunal awarded compensation to multiple claimants in various MV cases, and an inter se liability issue arose between the vehicle owner and the insurer. The insurer sought to recover amounts from the owner based on breach of policy conditions and the vehicle’s use. The court references a 02.11.2010 decision in MACA No.3147/2009 and connected matters and calls for remitting the inter-se liability to the Tribunal with detailed directions. It also cites the principle from National Insurance Company Ltd. v. Anjana Shyam (2007) 7 SCC 445 that liability of the insurer may be restricted to seating capacity, with excess liability apportioned. The judgment ultimately disposes of the appeal by remitting the inter-se liability issue to the Tribunal and directing it to (i) determine whether the vehicle was used as private or for hire, (ii) check policy breaches, (iii) determine seating capacity and apportion liability if overloaded, with the owner liable for any balance. The order appears to be framed to ensure proper apportionment and recovery from the appropriate party.

Legal Doctrines & Maxims

Anjana Shyam principle (insurer’s liability limited to seating capacity; excess liability to be apportioned)

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that the Tribunal’s findings on inter-se liability between the jeep owner and insurer require re-examination in light of evidence on use, hire status, seating capacity, and policy breach. Relying on the principle in National Insurance Co. Ltd. v. Anjana Shyam (2007) 7 SCC 445 and the Kerala High Court’s 02.11.2010 judgment in MACA 3147/2009 and connected matters, they urge apportionment of liability between owner and insurer, with any excess paid by the owner. They also seek a remand to implement the specified apportionment framework.

Contentions of Respondents

The respondents urge remand to the Tribunal to determine inter-se liability consistent with prior directives and the cited authorities, particularly focusing on whether the vehicle was used privately or for hire, possible policy breaches, seating capacity, and proportional liability for overload, with applicable apportionment following the Anjana Shyam framework.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
National Insurance Co. Ltd. v. Anjana Shyam	(2007) 7 SCC 445	Positive	Judicial principle used to limit insurer liability to seating capacity and apportion excess liability.
MACA 3147/2009	MACA 3147/2009	Positive	Kerala High Court decision cited as controlling authority directing remand for inter-se liability matters.
MACA 3141/2009	MACA 3141/2009	Mentioned Only	Referenced in the 02.11.2010 judgment; not directly controlling the present disposal.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **SATURDAY, THE 16TH DAY OF NOVEMBER 2019 / 25TH KARTHIKA, 1941** **MACA.No.2893 OF 2009** **AGAINST THE AWARD IN OPMV 187/2002 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL,THODUPUZHA** ## **APPELLANT/2ND RESPONDENT IN O.P.(MV):** **SHIBY S/O.THOMAS, AGED 40, KUNJANKUDIYIL, MACHIPLAVU P.O., ADIMALI,IDUKKI DISTRICT.** **BY ADV. SRI.C.S.MANILAL** ## **RESPONDENTS/RESPONDENTS 1 & 3 AND PETITIONERS:** |**1**|**THAMBI,**| |---|---| ||**S/O.POULOSE,**| ||**CHENNATTU HOUSE,**| ||**MACHIPLAVU P.O.,ADIMALI.**| |**2**|**ORIENTAL INSURANCE COMPANY LTD.,**| ||**KOTHAMANGALAM.**| |**3**|**ALIYAS @ JOY,**| ||**S/O.VARGHESE, AGED 36,**| ||**KUNNATHU HOUSE,**| ||**IRUMBUPALAM, VALARA,**| ||**CHILLITHODUBHAGOM,**| ||**ADIMALI.**| |**4**|**ELDOUSE,**| ||**S/O.ALIYAS, AGED 9, MINOR**| ||**REPRESENTED BY FATHER AND GUARDIAN, JOY,**| ||**S/O.VARGHESE,**| ||**KUNNATHU HOUSE,**| ||**IRUMBUPALAM, VALARA,**| ||**CHILLITHODUBHAGOM,**| ||**ADIMALI.**| MACA NO.2893 OF 2009 & O.P.(MAC) NOS.2929 & 2939 OF 2012 -2- **5 SNOBY, D/O.ALIYAS, AGED 5 YEARS, MINOR REPRESENTED BY FATHER AND GUARDIAN, JOY,S/O.VARGHESE, KUNNATHU HOUSE, IRUMBUPALAM, VALARA, CHILLITHODUBHAGOM,ADIMALI.** **R2 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.JOSEPH SEBASTIAN PURAYIDAM R2 BY ADV. SRI.MATHEWS JACOB SR. R3-R5 BY ADV. SRI.T.J.MICHAEL R3-R5 BY ADV. SRI.SHAJI KURIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.11.2019, ALONG WITH OP (MAC).2929/2012(O), OP (MAC).2939/2012(O), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO.2893 OF 2009 & O.P.(MAC) NOS.2929 & 2939 OF 2012 -3- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **SATURDAY, THE 16TH DAY OF NOVEMBER 2019 / 25TH KARTHIKA, 1941** ## **OP (MAC).No.2929 OF 2012** **AGAINST THE AWARD IN OPMV 254/2002 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL,THODUPUZHA** **PETITIONER:** **SHIBY, S/O. THOMAS, AGED 40 YEARS, KUNJANKUDIYIL, MACHIPLAVU P.O., ADIMALI, IDUKKI DISTRICT. BY ADVS. SRI.C.S.MANILAL SRI.S.NIDHEESH** ## **RESPONDENTS:** |**1**|**THAMBI,**| |---|---| ||**S/O. POULOSE,**| ||**CHENNATTU HOUSE,**| ||**MACHIPLAVU P.O., ADIMALI-685561.**| |**2**|**ORIENTAL INSURANCE COMPANY LTD.,**| ||**KOTHAMANGALAM-686691.**| |**3**|**JANCY,**| ||**W/O. BABY P.K., AGED 39 YEARS,**| ||**PAREKUDIYIL HOUSE,**| ||**KONNATHADY P.O., KAMBILIKANDAM,**| ||**PARATHODE VILLAGE-685563.**| **R2 BY ADV. SRI.P.JACOB MATHEW R2 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA** **THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 16.11.2019, ALONG WITH MACA.2893/2009, OP (MAC).2939/2012(O), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO.2893 OF 2009 & O.P.(MAC) NOS.2929 & 2939 OF 2012 -4- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **SATURDAY, THE 16TH DAY OF NOVEMBER 2019 / 25TH KARTHIKA, 1941** ## **OP (MAC).No.2939 OF 2012** **AGAINST THE AWARD IN OPMV 253/2002 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA** **PETITIONER:** |||**SHIBY,**| |---|---|---| |||**S/O.THOMAS, AGED 40 YEARS**| |||**KUNJANKUDIYIL,**| |||**MACHIPLAVU P.O., ADIMALI,**| |||**IDUKKI DISTRICT.**| |||**BY ADVS.**| |||**SRI.C.S.MANILAL**| |||**SRI.S.NIDHEESH**| |**RESPONDENTS**<br>**:**||| |**1**||**THAMBI,**| |||**S/O.POULOSE,**| |||**CHENNATTU HOUSE,**| |||**MACHIPLAVU P.O., ADIMALI, PIN-685 561.**| |**2**||**ORIENTAL INSURANCE COMPANY LTD.,**| |||**KOTHAMANGALAM, PIN-686 691.**| |**3**||**BABY P.K.,**| |||**S/O.KORA,**| |||**PAREKUDIYIL HOUSE,**| |||**KONNATHADY P.O., KAMBILLKANDAM,**| |||**PARATHODE VILLAGE, PIN-685 503.**| **R2 BY ADV. SRI.P.JACOB MATHEW R2 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA** **THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 16.11.2019, ALONG WITH MACA.2893/2009, OP (MAC).2929/2012(O), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA NO.2893 OF 2009 & O.P.(MAC) NOS.2929 & 2939 OF 2012 -5- ## **JUDGMENT** This appeal and the original petitions arise out of a motor accident, which occurred on 30.12.2001 involving a jeep bearing registration No.KL-08/E-8501 owned by the appellant, who was arrayed as the 2[nd] respondent in O.P. (MV) No.187 of 2002 and connected matters, on the file of the Motor Accidents Claims Tribunal, Thodupuzha. In the accident, the passengers in the said jeep sustained injuries. O.P.(MV) No.187 of 2002 is one filed by the legal representatives of the deceased passenger. On the other hand, O.P.(MV) Nos.253 and 254 of 2002 are filed by the injured passengers. 2. The Tribunal passed a common award dated 01.02.2005 in O.P.(MV) Nos.187, 253, 254, 255, 256, 257, 258, 667, 669, 1242 and 1245 of 2002, awarding compensation to the respective claimants and the 3[rd] respondent insurer is granted recovery right to proceed against the appellant in MACA No.2893 of 2009 and the petitioner in O.P.(MAC) Nos.2929 and 2939 of 2012 on a MACA NO.2893 OF 2009 & O.P.(MAC) NOS.2929 & 2939 OF 2012 -6- finding as to violation of the conditions of the policy. The said finding as to violation of the conditions of policy and the consequential recovery right granted in O.P.(MV) No.187 of 2002, 253 of 2002 and 254 of 2002 are under challenge in this appeal and the connected original petitions. 3. Today, when these cases are taken up for consideration, the learned counsel for the appellant in MACA No.2893 of 2009/petitioner in O.P.(MAC) Nos.2929 and 2939 of 2012 would point out the judgment of this Court dated 02.11.2010 in MACA Nos.3147, 3146, 3126, 3141, 3142, 3218, 3022 of 2009 and 24 of 2010. The said judgment reads thus; “All these appeals are preferred by the owner of the vehicle involved in the accident. A party was going to attend betrothal ceremony and while so proceedings on account of the rash and negligent driving of the driver of the jeep met with an accident resulting in the death of a person and injuries to various other persons. The tribunal awarded compensation in all the cases. The claimants contended that the vehicle was being taken with the permission of the owner of the vehicle for the purpose of betrothal. The husband of MACA NO.2893 OF 2009 & O.P.(MAC) NOS.2929 & 2939 OF 2012 -7- the deceased gave a statement to the effect that the vehicle was taken for hire. Admittedly, the vehicle is not a taxi vehicle. The Tribunal held that the vehicle was used on the basis of hire. The Insurance Company contended when the policy is issued as a private vehicle and it is used as public service vehicle for hire there is breach of policy condition and therefore, Insurance Company is bound to get reimbursement of the amount from the owner. So the question that arises for determination actually is whether the vehicle was taken by the persons travelling on the friendship basis or on hire. Similarly, the jeep admittedly was carrying 12 persons. Whether it is private vehicle or public vehicle it cannot carry 12 persons. Unless it is specifically provided in the documents. When it is so it has been held by the Supreme Court _Anjana Shyam's_ case that the liability of the Insurance Company has to be restricted to the number of the passengers permitted to be carried in the vehicle and the methodology to be adopted is to take highest of the said awards and award proportionately so as to make Insurance Company liable in each cases for a specific amount and balance amount has to be realise from the owner. It appears that the whole amount is directed to be paid the insurance company. Even if insurance company is found liable with respect to the excess amount order has to be passed against the owner. Therefore, awards under challenge so far as, it relates MACA NO.2893 OF 2009 & O.P.(MAC) NOS.2929 & 2939 OF 2012 -8- to the interse liability between the Insurance Company and the owner is concerned is set aside and the matter is remitted back to the Tribunal with a specific direction to consider the following namely; i) Whether the vehicle involved in the accident was used as a private vehicle at the time of the accident or whether it was taken up for hire ? ii) If so, whether there is any breach of policy conditions iii) What is the seating capacity of the vehicle and in case of overload apportion the amount as laid in _Ajnjana Shyam's_ case and direct the owner to pay the balance. In case insurance company had deposited the entire amount let the excess amount so deposited also be permitted to be realised from the owner. Parties are directed to appear before the Tribunal on 15-12-2010.” 4. It is submitted by the learned counsel for the 2[nd] respondent insurer that in view of the judgment of this Court dated 02.11.2010 in MACA No.3147 of 2009 and connected matters, the awards, which are impugned in MACA No.2893 of 2009 and O.P.(MV) Nos.2929 and 2939 of MACA NO.2893 OF 2009 & O.P.(MAC) NOS.2929 & 2939 OF 2012 -9- 2012, may be set aside in so far as it relates to _inter se_ liability between the owner of the jeep and the insurer and the matters be remitted back to the Tribunal with a specific direction to consider the matters enumerated in the judgment dated 02.11.2010 in MACA No.3147 of 2009 and connected cases. 5. Having considered the submissions made by the learned counsel on both sides, this appeal and original petitions are disposed of by remitting the matter back to the Tribunal to decide the _inter se_ liability between the owner and the insurer in O.P.(MV) Nos.187 of 2002, 253 of 2002 and 254 of 2002. The findings in the impugned awards on the _inter-se_ liability between the owner and insurer is set aside and the matter is remitted back to the Tribunal with a specific direction to consider the following matters; i) Whether the vehicle involved in the accident was used as a private vehicle at the time of the accident or whether it was taken up for hire ? ii) If so, whether there is any breach of policy MACA NO.2893 OF 2009 & O.P.(MAC) NOS.2929 & 2939 OF 2012 -10- conditions iii) What is the seating capacity of the vehicle and in case of overload apportion the amount as laid in **National Insurance Company Ltd. v. Anjana Shyam [(2007) 7 SCC 445]** and direct the owner to pay the balance. In case insurance company had deposited the entire amount let the excess amount so deposited also be permitted to be realised from the owner. Both sides shall appear before the Tribunal on ## **05.12.2019** . Sd/- **ANIL K. NARENDRAN JUDGE** bpr MACA NO.2893 OF 2009 & O.P.(MAC) NOS.2929 & 2939 OF 2012 -11- ## **APPENDIX OF OP (MAC) NO.2929/2012** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **AGAINST THE AWARD IN OP(MV) NO.254/2002 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA** **EXHIBIT P2** **TRUE COPY OF THE JUDGMENT DATED 02/11/2010 IN R.P.NO.918/2010 IN MACA 3141/2009** MACA NO.2893 OF 2009 & O.P.(MAC) NOS.2929 & 2939 OF 2012 -12- ## **APPENDIX OF OP (MAC)NO.2939/2012** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 AGAINST THE AWARD IN O.P.(MV) NO.253/2002 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 02/11/2010 IN R.P.NO.918/2010 IN MACA NO.3141/2009 OF HIGH COURT OF KERALA**