OP (MAC) No. 8 of 2021

O.P(MAC).8/2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 5[TH] DAY OF JULY 2021 / 14TH ASHADHA, 1943** **OP (MAC) NO. 8 OF 2021** **AGAINST THE ORDER/JUDGMENT IN OPMV 2879/2018 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL ,TRIVANDRUM, THIRUVANANTHAPURAM** ## **PETITIONER/PETITIONER/APPLICANT:** PRASANTH AGED 39 YEARS S/O SADASIVAN NAIR, PRAVEEN NIVAS, PIRAPPANCODE P.O.KOLIYACODE VILLAGE, THIRUVANANTHAPURAM BY ADVS. R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH ## **RESPONDENTS/COUNTER PETITIONERS/RESPONDENTS:** 1 SHIHABUDEEN S/O SHAHUL HAMEED, JASIM MANZIL, KARAVARAM P.O.THIRUVANANTHAPURAM-695 605. 2 SHIYAS FAZIL, S/O FASIL, F.S BUILDING, CHEMMARUTHY, PALACHIRA P.O.THIRUVANANTHAPURAM-695 143. 3 THE NEW INDIA ASSURANCE CO LIMITED, NEAR MUNICIPAL BUS STAND, MAIN ROAD, ATTINGAL P.O.THIRUVANANTHAPURAM-695 101. 4 SUDHEER, S/O ABDUL HASSAN, ANUSHYA MANZIL, VETTOOR P.O.VARKALA, THIRUVANANTHAPURAM-695 312. ADDL R5 MANAGER M/S.UNITED INDIA INSURANCE CO.LTD, DIVISIONAL 2 O.P(MAC).8/2021 OFFICE, 2ND FLOOR, CWC BUILDING, LMS COMPOUND, PALAYAM, THIRUVANANTHAPURAM 695033 (IS IMPLEADED AS ADDL R5 AS PER ORDER DATED 24.03.2021 IN I.A.1/21 IN OP(MAC) 8/21) BY ADVS. SRI.A.R.NIMOD Sri.A.A.ZIYAD RAHMAN, SC, NEW INDIA ASSURANCE COMPANY LTD. SHRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION SRI.M.A.AUGUSTINE SRI.VPK.PANICKER THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 23.06.2021, THE COURT ON 05.07.2021 DELIVERED THE FOLLOWING: O.P(MAC).8/2021 3 ## **JUDGMENT** Petitioner is the claimant in O.P(M.V) No.891/2011, MACT, Thiruvananthapuram, filed by him invoking the provisions of the Motor Vehicles Act claiming compensation. According to the petitioner, while he was riding on a motor cycle, it colluded with a motor cycle driven by the second respondent herein. Both sustained injuries. Alleging that the incident occurred due to the rash and negligent driving of the second respondent, the petitioner filed O.P(M.V). 253 of 2011 before the MACT Attingal, invoking section 166 of the Motor Vehicles Act. Thereafter, the 2[nd] respondent herein filed O.P(MV).891 of 2011 before the MACT, Thiruvananthapuram invoking section 166 of the Motor Vehicles Act claiming that the incident occurred due to the rash and negligent driving of the vehicle by the petitioner. Pending the proceedings, the insurer in O.P(M.V).253 of 2011 moved the High Court and got that OP(MV) transferred from MACT, Attingal to MACT, Thiruvananthapuram to be tried along with OP(MV) 891 of 2011. It was thereafter numbered as OP(MV) 2879 of 2018. Joint trial was ordered on 19.01.2019. The petitioner in OP(MV) 891 of 2011 was examined as PW1 on 7.11.2019 and Exts.A1 to A14 were marked. 2. While so, the petitioner herein filed I.A.No.1888 of 2020 to O.P(MAC).8/2021 4 convert the claim from one under section 166 of the Motor Vehicles Act to one under S.163A of the Motor Vehicles Act. It was dismissed by the court below by an order on the ground that joint trial has been ordered , trial had commenced in OP(MV.)No.891 of 2011 and hence, in the light of the decision reported in **National Insurance Company** **Limited v. K.M.Jabbar (2007(1)KLT 331)** , the option to convert an application under section 166 to 163A or vice versa should have been exercised at any time prior to the settlement of issues. Thereafter the petitioner filed I.A.2026 of 2020 to review the above order which was also happened to be dismissed. Challenging the orders rejecting the application for amending the claim as well as the review petition, petitioner has approached this Court. 3. Heard the learned counsel for the petitioner and learned counsel for the insurance company. 4. Essential facts are not in dispute. The only question that arises is whether the court below was justified in dismissing the application for amendment and consequently the review petition. The reasoning of the court below was based on the decision of this Court in National Insurance Company's case as referred to above. Assailing the above, learned counsel for the petitioner vehemently advanced two points. Firstly that, the above decision was not applicable to the facts of the case, since though joint trial was ordered and evidence O.P(MAC).8/2021 5 had commenced in the connected OP(MV), trial had not commenced in OP(MV) 2879 of 2018 filed by the petitioner. Accordingly, notwithstanding the joint trial, it could not be said that the trial in relation to O.P(MV) 2879 of 2018 had commenced. It was further contended that, even assuming that commencement of trial in the one case would amount to commencement of trial in connected case, by virtue of the decision of the Honourable Supreme Court in **Ningamma and Another v. United India Insurance Company Limited ((2009)13 SCC 710)** , a pragmatic view was liable to be taken by the Tribunal having regard to the nature of the Act, which was essentially a welfare legislation. 5. It is true that if the trial is considered as commenced in both cases by virtue of the commencement of trial, in OP(MV) 891 of 2011, by adopting a narrow interpretation, the decision in K.M. Jabbar's case referred to above will not apply. On the other hand, if a wider interpretation is taken by holding that trial in O.P(MV)2879/2018 filed by the petitioner herein had not commenced even with the commencement of trial in the connected case, the decision in Jabbar's case will be applicable. Either way, Ningamma's case should hold the field, was the contention of the learned counsel for the petitioner. 6. Being a welfare legislation, I feel that, normally an O.P(MAC).8/2021 6 interpretation in favour of the claimant should be adopted. Thus, adopting a wider view, it cannot strictly be stated that settlement of issues had occurred in the case of claim petition filed by the petitioner herein. However, even in K.M.Jabbar's case, this Court relied on the decision of the Supreme Court in **Deepal Girishbhai Soni v. United India Insurance Co. Ltd. (2004(5) SCC 385)** wherein the Supreme Court had held that being a welfare legislation, the petitioner should have an option to invoke either section 166 or 163A of the Motor Vehicles Act. This Court in Jabbar's case, extending the principle, held that this option should normally be chosen before the settlement of issues. A close reference to the decision shows that, Court has specifically stated that, normally, this should be the principle. Jabbar's case did not say that, invariably, it should be the rule in all the cases. It was held by this Court that propriety would require that the election of the claim under either two of the different proceedings of S.166 and S.163A should be made on or before the settlement of issues. Definitely, a more pragmatic approach, having regard to the view taken by the Supreme Court in Ningamma's case (supra) which was based on just compensation could have been adopted. It is true that, the insistence for strict compliance of K.M.Jabbar's case, should not be at the cost of denial of justice. In Ningamma's case, the Supreme Court had held that, undoubtedly S.166A of the Motor vehicles Act O.P(MAC).8/2021 7 deals with just compensation and even if in the pleadings, no specific claim was done under Section 166 of the MV Act, a party should not deprived from getting just compensation in case the claimant is able to make out a case under any provision of law. It was reiterated that, Motor vehicles Act is a beneficial welfare legislation, and the Court was bound to grant just compensation whether or not any plea in that behalf is raised by the claimant or not. 7. Considering the peculiar circumstances arising in this case, I feel that, the court below could have allowed the application in the larger interest of the claimant. However, accordingly, I feel that the impugned orders are liable to be set aside. In the result, the original petition stands allowed. Impugned orders Exts.P3 and P4 in I.A.Nos.1888 of 2020 and I.A.2026 of 2020 of the MACT, Thiruvananthapuram stands set aside. I.A.No.1888 of 2020 stand allowed. It is made clear that, this is without prejudice to the right of the respondent to file written objection to amended claim. The court below shall proceed in accordance with law. **Sd/SUNIL THOMAS JUDGE** **Sbna/** O.P(MAC).8/2021 8 ## **APPENDIX OF OP (MAC) 8/2021** PETITIONER ANNEXURE EXHIBIT P1 TRUE COPY OF APPLICATION DATED 14.3.2011 IN OP(MV0 NO 253/2011 BEFORE MOTOR ACCIDENT CLAIMS TRIBUNAL ATTINGAL EXHIBIT P2 TRUE COPY OF APPLICATION DATED 27.7.2011 IN OP(MV) NO 891/2011 BEFORE MOTOR ACCIDENTS CLAIMS TRIBUNAL THIRUVANANTHAPURAM EXHIBIT P3 TRUE COPY OF ORDER DATED 5.11.2020 IN IA NO 1888/2020 IN OP(MV) NO 2879/2018 BY THE 11ND ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM EXHIBIT P4 TRUE COPY OF 1 ORDER DATED 5.11.2020 IN IA NO 2026/2020 IN OP(MV) NO 2879/2018 BY THE 11ND ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL THIRUVANANTHAPURAM