New India Assurance Company Limited v. Thankamma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943** ## **MACA.No.196 OF 2013** **AGAINST THE AWARD IN OP(MV) 1163/2007 DATED 15-05-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA** ## **APPELLANT/3RD RESPONDENT:** **THE NEW INDIA ASSURANCE COMPANY LIMITED ETTUMANOOR NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 AND 2:** - **1 THANKAMMA W/O.VASUDEVAN, PUTHUVAL NIKARTHIL, THANNEERMUKKOM P.O., VIA.CHERTHALA, PIN-688320.** - **2 ROBY KURUVILLA S/O.KURUVILLA, THEKKETHIL VEETTIL, KAVIKKADU KARAYIL, MUTTUCHIRA P.O., VAIKOM-686318.** - **3 BIJU PAUL THEKKEVEETTIL, KALLARA P.O., VAIKOM-686315.** - Addl. **VASUDEVAN, AGED 63, PUTHUVAL NIKARTHIL, 4. THANNEERMUKKOM P.O, VIA CHERTHALA.** **5. SABITHA, AGED 31, PUTHVAL NIKARTHIL, THANNEERMUKKOMP.O, VIA CHERTHALA.** **6. SOUMYA, AGED 25, PUTHUVAL NIKARTHIL, THANNEERMUKKOM P.O, VIA CHERTHALA. ADDL.5 TO 6 ARE IMPLEADED AS PER ORDER DATEED 1.9.2016 IN I.A NO.2898/2016 R1 BY ADV. SRI.J.OM PRAKASH R1-2 BY ADV. SRI.RENNY AUGUSTINE R4-R6 BY ADV. SRI.J.OM PRAKASH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-03-2021, THE COURT ON 26-03-2021 DELIVERED THE FOLLOWING:** **MACA.No.196 OF 2013** **2** ## **JUDGMENT** ## **Dated this the 26th day of March 2021** The appellant was the 3[rd] respondent in O.P. (MV) No.1163/2007 on the file of the Motor Accidents Claims Tribunal, Alappuzha. The 1[st] respondent was the petitioner and the respondents 2 and 3 were the respondents 1 and 2 in the claim petition. The parties are, for the sake of convenience, and wherever the context so requires, referred to as per their status in the claim petition. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short ‘the Act’), claiming compensation on account of the accident that occurred on 13.12.2006. It was her case that while she was walking on the Vaikom Boat Jetty road, a private bus bearing Reg. No.KL5/L8184(offending vehicle) driven by the 1[st] respondent in a rash and negligent manner hit the petitioner. She sustained serious injuries. The **MACA.No.196 OF 2013** **3** offending vehicle was owned by the 2[nd] respondent and insured with the 3[rd] respondent. Hence, the petitioner claimed a compensation of Rs.5,21,000/from the respondents. 3. During the pendency of the proceedings, as the 1[st] respondent could not be served with notice, the petitioner relinquished her claim as against the 1[st] respondent. The 2[nd] respondent did not contest the proceedings and was set ex parte. 4. The 3rd respondent filed a written statement admitting that the offending vehicle had a valid insurance policy issued by it. However, the 3[rd] respondent denied any negligence on the part of the 1[st] respondent in causing the accident. Similarly, the 3[rd] respondent denied the validity of the driving licence and badge of the 1[st] respondent and the fitness certificate of the offending vehicle. It was specifically contended that there was a violation of the policy conditions, and therefore, the 3[rd] **MACA.No.196 OF 2013** **4** respondent was not liable to indemnify the 2[nd] respondent. The 3[rd] respondent prayed that it may be exonerated from its liability. 5. A Member of the Medical Board Dr.Sajith Hussain was examined as PW1 and Ext.C1 disability certificate was marked through him. The petitioner also marked Exts.A1 to A6 in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition by permitting the petitioner to realise an amount of Rs.,5,87,511/- with interest at the rate of 7.5% per annum from the date of petition till the date of realisation and costs of Rs.5,875/-. The 3[rd] respondent was directed to pay the compensation. 7. Aggrieved by the impugned award, the 3[rd] respondent/Insurance Company is in appeal. 8. During the pendency of the appeal, the petitioner passed away. Her legal representatives **5** ## **MACA.No.196 OF 2013** have been impleaded as respondents 4 to 6 in the appeal. 9. Heard Sri.Mathews Jacob, the learned Senior Counsel appearing for the appellant/3rd respondent, Sri.J.Om Prakash, the learned counsel appearing for the respondents 4 to 6 and Sri.Renny Augustine, the learned counsel appearing for respondents 2 and 3. 10. The learned Senior Counsel appearing for the appellant/3rd respondent challenged the impugned award on the following three grounds, namely: (i) As the petitioner had relinquished her claim as against the 1[st] respondent- driver, the claim petition itself is not maintainable. (ii) Even though as per Ext.C1 disability certificate, the petitioner had sustained only 40% permanent disability, the Tribunal has assessed the functional disability at 100%. **MACA.No.196 OF 2013** **6** (iii) Although the appellant had specifically contended in the written statement that the offending vehicle had no fitness certificate, the Tribunal did not grant the appellant the right to pay and recover the compensation as laid down by the larger Bench decision of this Court in **Pareed Pillai v. Oriental Insurance Co.Ltd** [2018 (4) KLT 792] read with Section 149 of the Act. He therefore, prayed that the appeal be allowed and the claim petition be dismissed. 11. Per contra, Sri.J.Om Prakash, the learned counsel appearing for the respondents 4 to 6 contended that the petitioner did not relinquish her claim as against the 1[st] respondent. As the whereabouts of the 1[st] respondent was not known and the notice in the claim petition was not getting served against the 1[st] respondent, the petitioner was constrained to delete the 1[st] respondent from the party array, taking note of the fact that the vehicle **MACA.No.196 OF 2013** **7** was owned by the 2[nd] respondent, which was covered by a valid insurance policy issued by the 3[rd] respondent. Therefore, at any rate only the 3[rd] respondent will be held liable to pay the compensation as the 2[nd] respondent is vicariously liable for the negligence of the 1[st] respondent. Similarly, he contended that the Tribunal fixed the functional disability of the petitioner based on Ext.A15 disability certificate issued by a competent Medical Board of the same hospital, which has certified that the petitioner to be unfit to continue her profession as a coir worker. Therefore, he contended that there is no scope for any interference with the impugned award passed in favour of the petitioner and the appeal be dismissed. 12. Sri.Renny Augustine, the learned counsel appearing for respondents 2 and 3 contended that the respondents 2 and 3 may be given one more opportunity to prove that the offending vehicle had a **MACA.No.196 OF 2013** **8** valid fitness certificate and that the 1[st] respondent had the valid driving licence and badge. There is no violation of policy conditions as contended by the learned Senior Counsel. Hence, the impugned award passed by the Tribunal is correct and justifiable. 13. The questions that emanate for consideration in the appeal are: (i) Whether the relinquishment of claim by the petitioner would exonerate the appellant/3rd respondent from paying compensation to the petitioner? (ii) Whether the functional disability assessed by the Medical Board would establish that the petitioner was no longer capable of doing her work? (iii) Whether the appellant is entitled for an order of pay and recovery as contemplated under Section 149 of the Act? 14. Ext.A2 charge-sheet filed by the Police after investigation substantiates that the accident occurred on account of the negligence on the part of the 1[st] respondent who drove the vehicle in a rash and negligent manner. Exts.A3 and A4 wound certificates **MACA.No.196 OF 2013** **9** prove that the petitioner had sustained serious injuries, as a result of the accident. It is an undisputed fact that the offending vehicle driven by the 1[st] respondent was owned by the 2[nd] respondent and insured with the 3[rd] respondent. Therefore, the respondents 2 and 3 are vicariously liable to compensate the petitioner for the negligent act of the 1[st] respondent. 15. The specific case of the petitioner was that as the whereabouts of the 1[st] respondent was unknown and summons could not be served on him, the petitioner deleted the 1[st] respondent from the party array, in order to proceed with the claim petition. The deletion of the 1[st] respondent, especially in light of Ext.A2 charge-sheet that the 1[st] respondent was negligent in causing the accident and that the 3[rd] respondent had issued a valid insurance policy cannot tantamount to relinquishment of the claim. **MACA.No.196 OF 2013** **10** 16. The said legal position is no longer resintegra in view of the law declared by Division Benches of this Court in **Oriental Insurance Co. Ltd.** **v. Shobana Omanakuttan and others** [2015 KHC 406] and **Anuradha Varma v. State of Kerala** [1993 (2) KLT 777] . 17. Hence, I hold that the deletion of the 1[st] respondent is not fatal to the petitioner and does not dis-entitle her from claiming compensation as against the respondents 2 and 3. Accordingly, question No.1 is answered in favour of the petitioner. 18. Coming to the next question with regard to the functional disability of the petitioner. 19. It is seen that the petitioner was first examined by a competent Medical Board of three Doctors of the General Hospital, Alappuzha. The Medical Board by certificate dated 10.2.2011, which was marked as Ext.A15 found that the petitioner was unfit to continue her work as a coir worker due to ## **MACA.No.196 OF 2013** **11** the fact that she is suffering from post-osteolylitis residual damage of the knee, tibia and ankle. Accordingly, it was held that the petitioner was 100% functionally disabled from carrying on her avocation. 20. Subsequent to the assessment in Ext.A15, the petitioner was again subjected to an examination by another Medical Board of the Government T.D.Medical College, Hospital on 17.12.2011. The said Board also found that the petitioner had a permanent disability of 40% as she was suffering from the same ailment as certified in Ext.A15 certificate. 21. Thus, in my considered opinion, Ext.A11 and Ext.C1 will have to be read together, to assess the functional disability and permanent disability of the petitioner. In was in such circumstances that the Tribunal came to the conclusion that the petitioner was unable to carry on with her avocation, even though she had only 40% permanent disability. The **MACA.No.196 OF 2013** **12** finding of 100% functional disability cannot be found fault with. Thus, I answer question No. (ii) also in favour of the petitioner. 22. Coming to the last question, whether the appellant is entitled for an order of pay and recovery as against the 2[nd] respondent for violation of the policy conditions. 23. It was the specific case of the appellant in the written statement that the offending vehicle did not have a valid fitness certificate. It was also contended that the 1[st] respondent did not possess a valid driving licence or badge to drive the vehicle. 24. A larger Bench of this Court in **Pareed Pillai** (supra), has held that if the offending vehicle does not have a valid fitness certificate, it is a major infraction of Section 149 of the Motor Vehicles Act, 1988, giving liberty to the Insurance Company to pay the compensation amount and recover the same from the owner of the offending vehicle. **MACA.No.196 OF 2013** **13** 25. Undisputedly, even though the appellant had filed an application for production of the said documents, the 2[nd] respondent did not care to contest the proceedings or produce the relevant documents to disprove the assertion of the appellant. Therefore, the said question is only to be answered in favour of the appellant. 26. The learned counsel appearing for the respondents 2 and 3 made a fervent plea before this Court that the respondents 2 and 3 may be given a further opportunity to produce the relevant documents to disprove the assertion of the appellant. The said submission cannot be accepted because the claim petition was filed in the year 2007 and the appeal has been pending before this Court from the year 2013 onwards. At this distance of time, I do not find any ground to give any further opportunity to the respondents 2 and 3 to produce the above documents. Hence, I am of the considered opinion **14** ## **MACA.No.196 OF 2013** that the appellant is entitled for an order for paying the compensation to the respondents 4 to 6/legal representatives of the petitioner and recovering the compensation amount from the 2[nd] respondent. In light of the aforesaid findings, the appeal is disposed of confirming the impugned award passed by the Tribunal, but giving liberty to the appellant to pay the compensation a to the respondents 4 to 6 and recover the same from the 2[nd] respondent, in accordance with law. Ma/26.6.2021 Sd/- **C.S.DIAS, JUDGE** /True copy/