New India Assurance Co. Ltd v. Kalliyani

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 1[ST] DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943 MACA NO. 765 OF 2008** ## **AGAINST THE ORDER/JUDGMENT IN OPMV 737/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL VADAKARA, KOZHIKODE** ## **APPELLANT/S:** THE NEW INDIA ASSURANCE COMPANY LTD REP.BY THE MANAGER, REGIONAL OFFICE, M.G.ROAD,, KOCHI-11. BY ADV SMT.RAJI T.BHASKAR 1 KALLIYANI, D/O.POKKEN AGED 57 YEARS CHANGAT HOUSE, P.O.KADEMERI, VADAKARA. 2 MR.K.K.ABOOBACKER HAJI MEENAKSHI SHOPPING COMPLEX, MANOOR ROAD, KOZHIKKODE DIST-, 673 001. 3 SHAKEER S/O.KUNHAMMED, KARUVAN,KONDIYIL HOUSE, P.O.PONMERIPARAMBIL, VILLIAPPALLY. BY ADV SRI.ZUBAIR PULIKKOOL ## **RESPONDENT/S:** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME** **UP FOR ADMISSION ON 01.09.2021, ALONG WITH CO 47/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.765 of 2008 and Cross Objection No.47 of 2021 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 1[ST] DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943** **CO NO. 47 OF 2021** **IN** ## **MACA 765/2008** **AGAINST THE AWARD IN OP(MV) 737/2004 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, VADAKARA** ## **PETITIONER/S:** KALLIYANI,AGED 69 YEARS D/O POKKEN, CHANGAT HOUSE, KADAMERI P.O.VADAKARA, PIN-673 542 BY ADV ZUBAIR PULIKKOOL ## **RESPONDENT/S:** 1 NEW INDIA INSURANCE CO. LTD. REP BY THE MANAGER, AI MUBARAK BUILDING EDODI, VADAKARA-673 101. 2 MR. K K ABOOBACKER HAJI, MEENAKSHI SHOPPING COMPLEX, MAVOOR ROAD, KOZHIKODE DISTRICT-673 001. 3 SHAKEER,S/O KUNHAMMED, KARUVAN KONDIYIL HOUSE, P.O.PONMERIPARAMBIL, VILLIAPALLY, KOZHIKODE DISTRICT-673 524. BY ADV RAJI T.BHASKAR ## **THIS CROSS OBJECTION/CROSS APPEAL HAVING COME** **UP FOR ADMISSION ON 01.09.2021 ALONG WITH MACA 765/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 MACA No.765 of 2008 and Cross Objection No.47 of 2021 ## **C.S.DIAS, J.** ## **====================== MACA No.765 of 2008 and Cross Objection No.47 of 2021** **====================== Dated this the 1[st] day of September, 2021.** ## **COMMON JUDGMENT** The appeal and Cross Objection are filed against the award in OP(MV) 737/2004 of the Motor Accidents Claims Tribunal, Vadakara. 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 Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of her son Sajeevan (deceased) on 25.4.2004. 3. The facts in brief, relevant for determination of the appeal, are: On 25.4.2004, while the deceased was travelling in a Jeep bearing registration No.KL/11 A 5400 (Jeep) from Valayam to Kadameri, when the Jeep passed 4 MACA No.765 of 2008 and Cross Objection No.47 of 2021 the Valayam town, it hit on a tree. The deceased was seated on the rear seat of the Jeep. He fell on the road and his head hit against the ground. He was rushed to the C.M Hospital, Vatakara and, thereafter, to the Medical College Hospital, Kozhikode. However, he lost his life on 28.4.2004. The deceased was a Tailor and earning a monthly income of Rs.3,000/-. The accident occurred due to the negligence of the second respondent who drove the Jeep in a rash manner. The first respondent was the owner and the third respondent was the insurer of the Jeep. As the petitioner was the dependent of the deceased, she claimed an amount of Rs.6,00,000/- as compensation from the respondents. 4. The first respondent entered appearance but did not file any written-statement. The second respondent did not contest the proceeding and was set ex parte. 5. The third respondent filed a written-statement admitting that the Jeep had a valid insurance policy. 5 MACA No.765 of 2008 and Cross Objection No.47 of 2021 However, the third respondent disputed the age, income and avocation of the deceased. It was also contended that the first respondent had violated the insurance policy conditions. Therefore, the third respondent was not liable to indemnify the first respondent of his liability. Hence, the claim petition as against the third respondent be dismissed. 6. The petitioner produced and marked Exts A1 to A4 in evidence. The third respondent produced Ext B1 insurance policy and marked it in evidence. Ext X1 case record was marked as a third party Exhibit. 7. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioner to realise an amount of Rs.1,88,600/- with interest and costs from the third respondent. 8. Aggrieved by the impugned award, the third respondent – insurer has filed the appeal. Dissatisfied 6 MACA No.765 of 2008 and Cross Objection No.47 of 2021 with the quantum of compensation awarded by the Tribunal, the petitioner has filed the Cross Objection. 9. Heard; Smt.Raji T.Bhaskar, the learned counsel appearing for the appellant/insurer and Sri.Zubair Pulikkool, the learned counsel appearing for the first respondent/claimant. 10. Smt.Raji T.Bhaskar argued that the Tribunal has gone wrong on two grounds (i) Ext B1 insurance policy clearly substantiates that it is an 'Act Policy'. The deceased was a gratuitous passenger in the Jeep. Therefore, the third respondent is not liable to pay any amount as compensation in view of the policy conditions. She relied on the decision of the Hon'ble Supreme Court in **New India Assurance Co. Ltd v. Asha Rani [2003 (1) KLT 165(SC)]** and the decision of this Court in **New India Assurance Co. Ltd v. Daisy Paul [2021 (2) KHC 449]** to fortify her contentions; (ii) the third respondent had specifically averred in the written-statement that the 7 MACA No.765 of 2008 and Cross Objection No.47 of 2021 second respondent did not hold a valid driving licence and badge to drive the Jeep. Even though the third respondent had filed an application to direct the second respondent to produce his driving licence and badge, the same was not produced. Therefore, the Tribunal ought to have drawn adverse inference against the second respondent and exonerated the third respondent, if not permitted the third respondent to pay and recover the compensation amount from the first respondent. Despite the said contention being taken, the Tribunal has directed the third respondent to pay the compensation amount which is erroneous and wrong. She also contended that as the third respondent has only disputed its liability in the appeal, therefore, the Cross Objection for enhancement of compensation is not maintainable in the light of the law laid down this Court in **Kumar vs.** by **Manoj Subramanian** [2010 (2) KLT 893]. She prayed that the appeal be allowed and the Cross Objection be dismissed. 8 MACA No.765 of 2008 and Cross Objection No.47 of 2021 11. Sri Zubair Pulikkool defended the impugned award passed by the Tribunal. He argued that the third respondent had not raised the contention that the insurance policy was an 'Act Policy' in the writtenstatement. He also contended that if at all the second respondent had violated the terms of the policy, this Court can very well direct the third respondent to pay compensation amount and recover it from the second respondent. Hence, he prayed that the appeal be dismissed confirming the findings of the Tribunal, even if the Cross Objection is not maintainable. 12. After considering the rival contentions, the following questions emerge for consideration: - (i) Whether the impugned award passed by the Tribunal is sustainable or not, - (ii) Whether there are cogent reasons to remand the matter back to the Tribunal, and (iii) Whether the Cross Objection is maintainable in law. 9 MACA No.765 of 2008 and Cross Objection No.47 of 2021 13. The third respondent had specifically pleaded in the written-statement that the first respondent had violated the conditions in Ext B1 insurance policy, and therefore, the third respondent may be exonerated of its liability. It was also contended that the petitioner had colluded with respondents 1 and 2 and foisted a false case, which has rendered the insurance policy void. The insurance policy was produced and marked as Ext B1 policy. 14. On going through Ext B1, it is clearly mentioned that it is an 'Act Policy'. 15. This Court in Daisy Paul (supra), after considering the entire spectrum of decisions of the Hon'ble Supreme Court and this Court, has held that an insurer is not liable to indemnify the owner of the vehicle of his liability arising out of an accident to a gratuitous passenger travelling in a vehicle covered by 'Act Policy'. 16. Now whether the deceased was a gratuitous 10 MACA No.765 of 2008 and Cross Objection No.47 of 2021 passenger or not is not pleaded in the claim petition or in the written-statement. Therefore, for want of material, it is not possible for this Court to decide the said question and arrive at a conclusion on the said question. 17. Similarly, the third respondent had specifically pleaded that the second respondent did not hold a valid driving licence or badge. Even though the third respondent filed an application to direct the respondents 1 and 2 to produce the vehicular and other documents, the respondents 1 and 2 did not produce the same. Despite the non production of the documents, the Tribunal did not draw adverse inference against the respondents 1 and 2. Instead, the Tribunal directed the third respondent to pay the compensation amount, without reserving the right of the third respondent to recover the amount from the first respondent – owner of the vehicle. This is in clear violation of Sec.149(2) of the Motor Vehicles Act, 1988. 18. If the respondents 1 and 2 had failed to produce 11 MACA No.765 of 2008 and Cross Objection No.47 of 2021 documents that were sought for, it was the bounden duty of the Tribunal to have drawn adverse inference against the first respondent and permit the third respondent to pay and recover the amount from the first respondent. 19. On a comprehensive reappreciation of the pleadings, materials on record, and on a consideration of the rival contentions and the law on the point, I am of the definite opinion that the Tribunal has passed the impugned award without considering the pleadings and materials on record in its proper perspective. Notwithstanding the mandate under Order XLI Rule 23A of the Code of Civil Procedure, in the light of the cogent reasons mentioned above and to subserve justice and also to afford both sides a further opportunity to substantiate their respective contentions, I hold that there are grounds warranting the matter to be remanded back to the Tribunal for fresh consideration. The petitioner and the third respondent shall be afforded an opportunity to 12 MACA No.765 of 2008 and Cross Objection No.47 of 2021 adduce additional evidence, including amendment of pleadings, if felt necessary. 20. In view of the law laid down by this Court in Manoj Kumar (supra), I hold that the Cross Objection is not maintainable. In the result, the appeal is disposed of by setting aside the impugned award and remitting the matter back to the Motor Accidents Claims Tribunal, Vadakara, for fresh consideration in accordance with law. The Tribunal shall reconsider the claim petition after adverting to all the legal contentions raised by both sides and the law on the point. Keeping in mind that the claim petition is of the year 2004, I direct the Tribunal to make every endeavour to dispose of the claim petition, as expeditiously as possible. The petitioner and the third respondent shall appear before the Tribunal on 4.10.2021. The Tribunal shall issue notice to the respondents 1 and 2 for their appearance. 13 MACA No.765 of 2008 and Cross Objection No.47 of 2021 The Cross Objection is dismissed in light of the law laid down in **Manoj Kumar vs. Subramanian** [2010 (2) KLT 893]. The parties shall bear their respective costs. Sd/- sks/1.9.2021 **C.S.DIAS, JUDGE**