RP.No.441 of 2016 in MFA.No.371/1996 & C.M.Appln.No.1596 of 2016

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **& THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **MONDAY, THE 27TH DAY OF JUNE 2016/6TH ASHADHA, 1938** ## **RP.No. 441 of 2016 () IN MFA.371/1996** **--------------------------------------AGAINST THE JUDGMENT IN MFA 371/1996 of HIGH COURT OF KERALA DATED 23.9.2004** **REVIEW PETITIONERS/LEGAL HEIRS OF 4TH RESPONDENT: --------------------------------------------------** ## **1. THAHIRA** **W/O LATE NAZAR, UTHALAPPARAMBIL, VAZHAKKALA,KAKKANAD, NOW RESIDING AT UOOTHALAYIL, CHATHANAD,PADAMUGAL, KAKKANAND.** ## **2. NOUFITHA** **D/O LATE NAZAR, UTHALAPPARAMBIL, VAZHAKKALA, KAKKANAD, NOW RESIDING AT UOOTHALAYIL, CHATHANAD, PADAMUGAL, KAKKANAD.** ## **3. NOUSIYA** **D/O LATE NAZAR, UTHALAPPARAMBIL, VAZHAKKALA, KAKKANAND, NOW RESIDING AT UOOTHALAYIL, CHATHANAND, PADAMUGAL,KAKKANAD.** ## **4. NAHAS** **S/O LATE NAZAR, UTHALAPPARAMBIL, VAZHAKKALA, KAKKANAND, NOW RESIDING AT UOOTHALAYIL, CHATHANAD, PADAMUGAL, KAKKANAD.** **BY ADVS.SRI.P.K.ABOOBACKER(EDAPPALLY) SRI.A.P.EBRAHIM** ## **RESPONDENTS/CLAIMANTS/RESPONDENTS:** **------------------------------------** **1. THE NEW INDIA ASSURANCE CO. LTD. REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. REP. BY ITS DEPUTY MANAGER** ## **RP.No. 441 of 2016 () IN MFA.371/1996** ## **2. RAMALATH** **W/O LATE ASHRAF, H.NO.7/2841, FAKEERA PARAMBU, A.R.LANE, KOCHI2** ## **3. ANEESH** **S/O LATE ASHRAF, H.NO.7/2841, FAKEERA PARAMBU, A.R. LANE, KOCHI-2** ## **4. AMEESHA** **D/O LATE ASHRAF, H.NO.7/2841, FAKEERA PARAMBU, A.R. LANE, KOCHI-2** **5. NAZAR U.M.(DIED) UTHALAPPARAMBIL, VAZHAKKALA, KAKKANAD, NOW RESIDING AT KOOTTALY, VAZHAKKALA, KAKKANAD** **6. M.R. SALIM KARIVELIPARAMBIL, PACHALAM, KOCHI-12** **R1 BY SRI.VPK.PANICKER R BY SRI.JOSE THETTAYIL** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 27-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **VPV** ## **P.N.RAVINDRAN & A.MUHAMED MUSTAQUE, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= R.P.No.441 of 2016** ## **in M.F.A.No.371 of 1996 & C.M.Appln.No.1596 of 2016 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 27[th] day of June, 2016** ## **ORDER** ## _**P.N.Ravindran, J.**_ The relief sought in R.P.No.441 of 2016 it to review and recall the judgment delivered by a Division Bench of this court on 23.9.2004 in M.F.A.No.371 of 1996. The prayer in C.M.Appln.No.1596 of 2016 is to condone the delay of 4195 days in filing the review petition. 2. The review petitioners are the legal heirs of late U.M.Nazar, the first respondent in O.P.(M.V.)No.66 of 1992 on the file of the Motor Accidents Claims Tribunal, Ernakulam, a claim petition filed by respondents 2, 3 and 4 in the review petition along with another claiming compensation for the death of late Ashraf, husband of the first claimant and father of the other claimants in a motor accident that took place on 25.12.1991. It was alleged that while the victim of the accident was transporting fish in a goods autorickshaw bearing registration No.KEE-897 owned by U.M.Nazar, it hit against a pedestrian and thereafter an electric post and in that accident Ashraf sustained grievous injuries and while undergoing treatment, ## **R.P.441/16 in M.F.A.371/96 & C.M.Appln.No.1596 of 2016** ## **-:2:-** succumbed to the injuries sustained by him in the accident. The claimants had in the claim petition averred that the accident took place solely on account of the rash and negligent driving of the second respondent before the tribunal. They contended that the motor vehicle involved in the accident was covered by a valid policy of insurance issued by the third respondent before the tribunal and that the respondents before the tribunal are jointly and severally liable to pay the compensation claimed in the claim petition. 3. Though notice was served, the owner and driver of the goods autorickshaw who were joined as respondents 1 and 2 in the claim petition did not enter appearance, with the result, they were set exparte. The third respondent, the insurer of the autorickshaw entered appearance and filed a written statement contending inter alia that though the good autorickshaw was covered by a valid policy of insurance on the relevant date, the passengers travelling in the goods autorickshaw are not covered by that policy. 4. After considering the rival contentions, the Motor Accidents Claims Tribunal held, relying on the Police records as also the testimony tendered by PW3, an eye witness to the accident, that the accident took place on account of the rash and negligent driving of the second respondent before the tribunal. The tribunal thereafter proceeded to award the sum of Rs.2,44,500/- as compensation and ## **R.P.441/16 in M.F.A.371/96 & C.M.Appln.No.1596 of 2016** ## **-:3:-** directed the insurer, the third respondent before it, to pay the said amount together with interest and costs. The tribunal had by the said award overruled the contention of the insurer that though the victim of the accident was travelling along with the second respondent in the driver's seat, there is no evidence to show that he had caused any obstruction to the driver and that being so, it cannot be said that there was any violation of the policy conditions. The tribunal accordingly held that the insurer is liable to indemnify the owner and driver of the goods autorickshaw. 5. Challenging the said award, the third respondent before the tribunal, the insurer of the goods autorickshaw, filed M.F.A.No.371 of 1996 in this court. The said appeal was presented on 22.3.1996. The appeal was admitted and notice ordered to the respondents on 27.3.1996. The records disclose that notice was thereupon sent from this court on 8.4.1996 with the hearing date fixed as 27.5.1996. The said notice was served on U.M.Nazar, who was joined as the fifth respondent in the said appeal. The appeal was thereafter heard and allowed by a Division Bench of this court by judgment delivered on 23.9.2004. Relying on the decision of the Apex Court in **New India Insurance Co. Ltd. v. Asha Rani & Others** [(2003) 2 SCC 223] the Division Bench held that as the accident in the instant case took place prior to 14.11.1994, passengers in goods autorickshaws are not ## **R.P.441/16 in M.F.A.371/96 & C.M.Appln.No.1596 of 2016** ## **-:4:-** covered by policies issued by insurance companies and therefore, the insurer will be entitled to recover the amount paid by it under the award from the insured. 6. The legal heirs of U.M.Nazar, the fifth respondent in M.F.A. No.371 of 1996, have in the instant review petition sought a review of the impugned judgment. It is contended that U.M.Nazar, the fifth respondent in M.F.A.No.371 of 1996 and the first respondent in O.P. (M.V.)No.66 of 1992 passed away on 8.9.1997 before the judgment in M.F.A.No.371 of 1996 was delivered and therefore, the judgment to the extent it is against him and his estate is null and void and is liable to be reviewed and recalled. The review petitioners have also stated that they were unaware of the appeal and its disposal and that they came to know about it only when notice under the Kerala Revenue Recovery Act, 1968 was served on them to realise the sum of Rs.5,68,588/-, at the instance of the insurer of the goods autorickshaw. 7. We heard Sri.P.K.Aboobacker, learned counsel appearing for the review petitioners and Sri.V.P.K.Panicker, learned counsel appearing for the insurer. We have also gone through the pleadings and the materials on record. The accident in the instant case took place on 25.12.1991. The claim petition was disposed of by award passed on 21.10.1995. U.M. Nazar, the predecessor-in-interest of the ## **R.P.441/16 in M.F.A.371/96 & C.M.Appln.No.1596 of 2016** ## **-:5:-** review petitioners was alive at that point of time. He did not for reasons best known to him enter appearance and defend the claim petition, though notice was served on him, with the result, he was set exparte. The insurer had in the written statement filed by it before the tribunal specifically contended that the risk of Ashraf is not covered by the policy of insurance issued by it. The tribunal overruled that contention on the premise that though Ashraf was travelling along with the driver in the cabin of the autorickshaw, there is no evidence to show that he had caused any impediment to the driver and therefore, the insurance company cannot be exonerated. The insurer challenged the award to the extent it held it liable to pay compensation by filing an appeal in this court. That appeal was filed on 22.3.1996. It was admitted and notice ordered to the respondents including U.M.Nazar on 27.3.1996. Notice was served on him before 27.5.1996. U.M.Nazar passed away only on 8.9.1997 after notice was served on him. He had not entered appearance in this court also. It was in such circumstances that this court disposed of the appeal unaware of his death. Though we find merit and force in the contention of the review petitioners that they were unaware of the proceedings in this court, as U.M.Nazar was served in the appeal during his lifetime and he had not chosen to enter appearance either before the tribunal or before this court, his legal heirs cannot be heard to set up a different plea. In any view of the ## **R.P.441/16 in M.F.A.371/96 & C.M.Appln.No.1596 of 2016** ## **-:6:-** matter, as the policy in the instant case was issued prior to 14.11.1994 namely prior to the amendment of the Motor Vehicles Act, 1988 by Act 54 of 1994, the owner of the goods carried in the goods vehicle or his authorised representative are not covered by act only policies issued by the respective insurers. It was only with the amendment to the Motor Vehicles Act, 1988 by Act 54 of 1994 that the owner of the goods carried in a goods vehicle and his authorised representative were covered. The Apex Court has in such circumstances held in **New India Insurance Co. Ltd. v. Asha Rani & Others** (supra) that the insurance company has no liability to cover the risk of passengers in a goods vehicle prior to 14.11.1994. The accident in the instant case took place on 25.12.1991. The policy issued in the instant case, was one which was issued prior to 14.11.1994. It was relying on the decision of the Apex Court in **New India Insurance Co. Ltd. v. Asha Rani & Others** (supra) that the Division Bench held that the insurer will be entitled to recover the amount paid by it under the award from the insured. Such being the situation, even if U.M.Nazar had entered appearance through counsel or the legal representatives of U.M.Nazar had been impleaded in time by the insurer, the outcome of the appeal would not have been different. Such being the situation, merely for the reason that the legal heirs of U.M.Nazar had not been brought on record, we find no reason or justification to review and recall the ## **R.P.441/16 in M.F.A.371/96 & C.M.Appln.No.1596 of 2016** ## **-:7:-** impugned judgment. Such being the situation, we are of the opinion that no purpose will be served by issuing notice to the other respondents in the review petition for the purpose of considering the application to condone delay. The application to condone delay in filing the review petition as also the review petition are accordingly dismissed. However, even while dismissing the review petition, we deem it appropriate to grant as requested by the learned counsel for the review petitioners an opportunity to pay the amount demanded by the insurer in 12 equal monthly installments. We accordingly direct that the revenue recovery proceedings initiated at the instance of the insurer in the instant case namely New India Insurance Co. Ltd., Ernakulam shall stand deferred by a period of one year subject to the condition that the review petitioners shall pay the amount demanded in 12 equal monthly installments commencing from 1[st] of August, 2016. The succeeding installments shall be paid on or before the 1[st] of each succeeding English calendar month. If the 1[st] of any English calendar month happens to be a holiday, payment shall be made on the next working day. Such payment shall be made at the regional office of the New India Insurance Co. Ltd. at Ernakulam. In the event of the review petitioners committing default in remitting any three consecutive installments, this opportunity to pay the amount due in installments **R.P.441/16 in M.F.A.371/96 & C.M.Appln.No.1596 of 2016** ## **-:8:-** shall stand recalled and it will be open to the insurer to forthwith proceed to realise the amount due in lump and in that eventuality the revenue recovery proceedings shall stand revived from the stage at which it was deferred. In the event of the review petitioners discharging the entire debt in 12 installments as mentioned above, the insurer shall take steps to withdraw the revenue recovery proceedings initiated by it and shall file a memo in the Motor Accidents Claims Tribunal to the effect that the entire amount due to it has been realised. Sd/- ## **P.N.RAVINDRAN JUDGE** Sd/- ## **A.MUHAMED MUSTAQUE JUDGE** /true copy/ P.A. To Judge ## **vpv**