Manikuttan v. Gireesh Kumar, The Manager, The New India Assurance Co. Ltd., and Lawrance

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 8[TH] DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943** ## **MACA NO. 2478 OF 2010** **AGAINST THE JUDGMENT IN OP(MV) 741/2003 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL ,NEYYATTINKARA** ## **APPELLANT/APPLICANT:** MANIKUTTAN, THIDUTHIDUPPANVILA VEEDU, PARANIYAM, POOVAR P.O., NEYYATTINKARA. BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL ## **RESPONDENTS/RESPONDENTS:** 1 GIREESH KUMAR, KUMARAMANGALAM, NEAR SPINNING MILL, BALARAMAPURAM P.O., NEYYATTINKARA. 2 THE MANAGER THE NEW INDIA ASSURANCE CO. LTD., SREE HARI BUILDING, NEAR BUS STAND JUNCTION, NEYYATTINKARA – 695 121. 3 LAWRANCE, S/O.KESAVAN CHERUKARIPUTHEN VEEDU, PUTHENKADA, THIRUPURAM P.O. BY ADVS. SRI.J.HARIKUMAR SMT.T.C.SOWMIAVATHY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2478 OF 2010** **2** ## **JUDGMENT** The appellant was the petitioner in O.P (MV) No.741/03 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had initially filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (for brevity referred to as 'the Act') claiming compensation on account of the injuries that he sustained in an accident on 23.10.2002. During the pendency of the claim petition, the appellant amended the claim petition and converted it one under Section 163A of the Act. It was his case in the claim petition that, on 23.10.2002, while he was travelling pillion on a scooter bearing Reg.No.KBV-8636 (scooter) from Pazhayakada to Neyyattinkara, when the scooter reached the place of accident, the driver of the scooter rode the **MACA NO. 2478 OF 2010** **3** scooter in a rash and negligent manner and hit against an ambassador car (car) which was parked on the side of the road. Due to the accident, the appellant sustained serious injuries, including a fracture. The scooter was owned by the 1[st] respondent and insured with the 2[nd] respondent. The appellant was a coolie worker and earning a monthly income of Rs.3,000/. The appellant claimed a compensation of Rs.2,01,000/- from the respondents, which was limited to Rs.1,50,000/-. 3. The 1[st] respondent had filed a written statement refuting the allegations in the claim petition. It was his specific case that, he had sold the scooter to one Lawrence on 15.5.2002. The scooter had a valid insurance coverage with the 2[nd] respondent. Hence, even if the 1[st] respondent was liable to pay the compensation, it was the 2[nd] respondent who is to indemnify his liability. 4. The 2[nd] respondent filed a written statement contending that the scooter involved in the accident was **MACA NO. 2478 OF 2010** **4** not insured by the 2[nd] respondent. The scooter was insured with the United India Insurance Co.Ltd. The FIR was lodged three months after the accident. Therefore, the claim petition is to be dismissed. Subsequently, the 2[nd] respondent filed an additional written statement admitting that the scooter had a valid insurance coverage. However, it was contended that the appellant was a gratuitous passenger and was not entitled for compensation. The accident occurred due to the negligence on the part of the driver of the car. The non-impleadment of the driver, owner and insurer of the car rendered the claim petition bad for non-joinder of necessary parties. Hence, the claim petition may be dismissed. 5. The Tribunal allowed the claim petition by permitting the appellant to realise an amount of Rs.60,200/- from the 2[nd] respondent – the insurer of the scooter. 6. The 2[nd] respondent challenged the award before **MACA NO. 2478 OF 2010** **5** this Court in MACA No.1076/2009. This Court by its judgment dated 18.11.2009, finding that the scooter belonged to one Lawrence, as per charge-sheet, set aside the award and remitted the matter back to the Tribunal and directed the appellant to implead Lawrence as an additional party in the claim petition. The Tribunal was directed to formulate proper issues, particularly with regard to the ownership of the vehicle and the liability of the insurance company, and decide the matter in accordance with law. 7. Subsequent to the remand, the appellant filed I.A 6307/09, and sought leave to implead the additional 3[rd] respondent as a party in the claim petition. The application was allowed and the additional 3[rd] respondent was impleaded. 8. The additional 3[rd] respondent filed a written statement, inter alia,contending that the scooter was owned by the 1[st] respondent. He had only taken interim **MACA NO. 2478 OF 2010** **6** custody of the scooter from the Police, with the consent of the 1[st] respondent. The scooter had a valid insurance coverage and, therefore, the 2[nd] respondent was liable to pay the compensation. 9. The Tribunal on a re-consideration of the matter – pursuant to the remand and the impleadment of the additional 3[rd] respondent – held that the appellant had not succeeded in proving that the 1[st] respondent or the 3[rd] respondent were the owners of the scooter. Consequently, the claim petition was dismissed. 10. Aggrieved by the dismissal, the petitioner is again in appeal. 11. Heard; Sri.R.T.Pradeep, the learned counsel appearing for the appellant/petitioner, Sri.J.Harikumar, the learned counsel appearing for the 1[st] respondent and Smt.T.C.Sowmiavathy, the learned counsel appearing for the 2[nd] respondent. 12. Sri.R.T.Pradeep, strenuously argued that in a **MACA NO. 2478 OF 2010** **7** claim under Section 163A of the Act, the Tribunal/Courts need not look into the aspect of ownership as well as negligence, since the provision opens with a non-obstinate clause. He contended that in view of the language used in Section 163A of the Act, this Court can direct the insurer to pay the compensation amount de hors the conditions in the insurance policy, even if it is only an 'Act Policy'. Hence, he prayed that the claim petition be allowed by directing the insurer to pay the compensation amount. 13. Sri.J.Harikumar, the learned counsel appearing for the 1[st] respondent, contended that this Court had in its earlier judgment in MACA No. 1076/2009, found that the 1[st] respondent is the owner of the vehicle. The said finding operates as res judicata. Hence the 1[st] respondent may be exonerated. 14. Smt.T.C.Sowmiavathy, the learned counsel appearing for the 2[nd] respondent – insurer, argued that as the insurance policy is an 'Act Policy', the 2[nd] respondent **MACA NO. 2478 OF 2010** **8** is not liable to indemnify the 1[st] respondent. Therefore, the appeal as against the 2[nd] respondent may be dismissed. 15. The question that arises for consideration in the appeal is whether the impugned award passed by the Tribunal is correct or not? 16. The sheet anchor of Sri.R.T.Pradeep was that as Section 163A of the Act commences with a non-obstinate clause, the insurer is liable to pay compensation, even if the claimant was a gratuitous passenger or the policy is an 'Act Policy'. The said contention is no longer res integra in view of the law laid down by this Court in **New India Assurance Co.Ltd v. Thomas** [2014 (3) KLT 119] ,wherein this Court considered the very same contention, and held that, if the vehicle is covered by an Act only policy, the insurer is not liable to pay compensation, even in a claim petition filed under Section 163A of the Act. I fully agree and endorse with the finding. Therefore, the above contention fails and is found against the appellant. **MACA NO. 2478 OF 2010** **9** 17. Now coming to the next contention i.e, whether the appellant has proved that the 3[rd] respondent is the owner of the vehicle. 18. This Court had in the earlier round of litigation found that in Ext.A1 charge-sheet filed by the Police, it was the 3[rd] respondent who was the owner of the vehicle. 19. The appellant did not discredit the charge-sheet by examining himself or witnesses, as laid down by this Court in **New India Assurance Co. Ltd v. Pazhaniammal** [2011 (3) KLT 648]. Therefore, the charge-sheet has relevance and is significant. 20. Even though the appellant had impleaded the additional 3[rd] respondent as a party in the claim petition, he did not carry out any consequential amendment in the claim petition, alleging that the 3[rd] respondent was the owner of the vehicle and that the 3[rd] respondent was vicariously liable to pay the compensation on account of the injuries sustained to the appellant. Instead, the 3[rd] **10** ## **MACA NO. 2478 OF 2010** respondent bluntly denied the ownership of the motorcycle. The appellant also did not let in any evidence to prove that the vehicle belonged to the 3[rd] respondent. Surprisingly, the appellant did not name or implead the alleged driver of the motorcycle or the car involved in the accident, even though he was given one more opportunity by this Court. 21. It is settled that negligence need not be proved in a claim under Section 163A of the Act, but that does not mean that an insurer or owner of an alleged offending vehicle can be directed to pay compensation merely because a claim petition is filed without any pleading or proof. The onus is always on the claimant to prove and establish the ownership and liability even in a claim under Section 163A of the Act. 22. On a comprehensive re-appreciation of the pleadings and materials on record, I am of the considered opinion that the findings of the Tribunal that the appellant **MACA NO. 2478 OF 2010** **11** has miserably failed to prove that the 3[rd] respondent was the owner of the vehicle is correct and justifiable. Hence, I answer the question against the appellant. In the result, the appeal fails and is hence dismissed. The parties shall bear their respective costs. ma/09.09.2021 Sd/- **C.S.DIAS, JUDGE** /True copy/