Sasikumar s/o Narayanan v. Ambika, Aswathy, Ananthu, Ammukkutty and New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **& THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 8TH DAY OF FEBRUARY 2016/19TH MAGHA, 1937** ## **MACA.No. 3346 of 2015 ()** **------------------------AGAINST THE AWARD IN OP(MV) NO.1543/2006 OF M.A.C.T., ATTINGAL DATED 10-07-2015** ## **APPELLANT(S)/1ST RESPONDENT: ----------------------------** **SASIKUMAR S/O.NARAYANAN, TC 1/253-1, ULLOOR MEDICAL COLLEGE PO, THIRUVANANTHAPURAM.** **BY ADVS.SRI.D.KISHORE SMT.MINI GOPINATH** **RESPONDENT(S)/APPLICANTS 1 TO 4 AND 2ND RESPONDENT.:** **----------------------------------------------------** **1. S.AMBIKA, AGED 37 YEARS W/O.VENU, PANNIYOTTUKONATHU THADATHARIKATHU VEEDU KOLLAMKAVU, PAZHAKUTTY PO, NEDUMANGADU-695 561.** **2. ASWATHY, AGED 17 YEARS (MINOR) REPRESENTED BY HER MOTHER AMBIKA RESIDING AT PANNIYOTTUKONATHU THADATHARIKATHU VEEDU KOLLAMKAVU, PAZHAKUTTY PO, NEDUMANGADU-695 561.** **3. ANANTHU, AGED 15 YEARS (MINOR) REPRESENTED BY HIS MOTHER AMBIKA RESIDING AT PANNIYOTTUKONATHU THADATHARIKATHU VEEDU KOLLAMKAVU, PAZHAKUTTY PO, NEDUMANGADU-695 561.** **4. AMMUKKUTTY, AGED 74 YEARS, W/O.BHASKARAN RESIDING AT PANNIYOTTUKONATHU THADATHARIKATHU VEEDU KOLLAMKAVU, PAZHAKUTTY PO, NEDUMANGADU-695 561.** **5. THE DIVISIONAL MANAGER** - **NEW INDIA ASSURANCE CO. LTD., KOTTARATHIL BUILDINGS ANNEXE, PALAYAM, THIRUVANANTHAPURAM-695 001.** **R5 BY ADV. SRI.P.JACOB MATHEW R1-R4 BY ADV. SRI.R.T.PRADEEP R1-R4 BY ADV. SRI.J.ROBINSON R BY SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MACA.No. 3346 of 2015 ()** ## **-------------------------** ## **APPENDIX** ## **APPELLANT'(S) EXHIBITS:** **ANNEXURE-1 COPY OF THE COMMUNICATION ISSUED BY THE POLICE SUB INSPECTOR, VATTAPPARA POLICE STATION TO SUDEVAN.** - **ANNEXURE-2 COPY OF THE REPLY GIVEN BY SUDEVAN TO ANNEXURE-1** - **ANNEXURE-3 COPY OF THE RECEIPT GIVEN BY SUDEVAN AFTER TAKING DELIVERY OF THE VEHICLE.** **ANNEXURE-4 REGISTRATION PARTICULARS OF THE VEHICLE BEARING REGISTRATION NO.KL-01-L-9652.** ## **RESPONDENT'(S) EXHIBITS: NIL** ## **//TRUE COPY//** **PA TO JUDGE** **bka/-** ## **P.R. RAMACHANDRA MENON, & ANIL K. NARENDRAN, JJ.** -------------------------------------------------M.A.C.A. No. 3346 of 2015 -------------------------------------------------Dated this the 8[th] day of February, 2016 ## **J U D G M E N T** ## P.R. Ramachandra Menon, J. The award passed by the MACT, Attingal, granting a total compensation of 8,39,000/-, fixing the entire extent₹ of liability upon the shoulders of the appellant herein, who was the previous registered owner of the vehicle, despite the crystal clear facts brought on record, particularly, as per the police records, to the effect that the present registered owner was none other than the brother-in-law of the deceased, who was riding the two wheeler at the relevant time, with the deceased on the pillion, is under challenge. The turn of events, according to the appellant, was quite a planned one, intending to play fraud on the Tribunal by not impleading the actual rider/registered owner in the party array, i.e., the M.A.C.A. No. 3346 of 2015 **==> picture [20 x 8] intentionally omitted <==** brother-in-law of the deceased, while seeking to fix negligence on him. 2. The sequence of events is as follows; on 20.07.2006 at about 8.30 pm, the deceased Venu, aged 32 years, was travelling as a pillion rider on a motor cycle, bearing Reg.No.KL-01/L-9652 from Vattapara to Vembayam. While so, the motor cycle hit against a pillar standing on the side of the road, as a result of which, the deceased fell down on the road, who sustained serious injuries; and he, ultimately, bid farewell to this world. This led to the claim petition preferred by the legal representatives; the widow, two minor children and mother of the deceased, wrongly showing the appellant herein as the registered owner of the vehicle and the 2[nd] respondent as the insurer. 3. It is seen from the award that, notice sent to the appellant/1[st] respondent, was not properly responded, as a result of which, he was declared ex parte. The insurer took up a contention that the policy issued in M.A.C.A. No. 3346 of 2015 **==> picture [20 x 8] intentionally omitted <==** respect of the vehicle was only a “Liability only policy”, which did not provide for any coverage to the pillion rider and thus, disowned the coverage. The evidence adduced before the Tribunal consists of Exts.A1 to A5 produced from the part of the respondents/claimants and Ext.B1 policy produced from the part of the insurance company. 4. In spite of the fact that the rider of the motor cycle was never brought into the party array, the Tribunal simply chose to fix negligence on him, answering issue No.1 in favour of the claimants, as could be discerned from para 7 of the award. Thereafter, the Tribunal proceeded to fix compensation reckoning the monthly income, multiplier and such other traits, granting a total compensation of 8,39,000/-, which was directed to be₹ satisfied by the 1[st] respondent (the appellant herein), as the insurance company was exonerated from the liability, for want of coverage. This made the appellant feel aggrieved, who in turn has approached this Court with the present appeal, also producing some additional M.A.C.A. No. 3346 of 2015 **==> picture [20 x 8] intentionally omitted <==** documents along with IA No.4278/2015 in support of his contention that he was never the registered owner of the vehicle on the date of accident as discernible from the police records produced before the Tribunal, which had not been adverted to by the Tribunal while fixing the liability upon the appellant. Thus, he seeks for immediate interference of this Court to set thing right. 5. Heard the learned counsel appearing for the appellant, the learned counsel appearing for the respondents/claimants as well as the learned counsel appearing for the insurance company. 6. The learned counsel for the appellant points out that the claim petition was originally filed, claiming compensation of ₹5,00,000/-. The learned counsel pointed out that the matter was actually entrusted with a lawyer, but, under some unfortunate circumstance, there was no representation for him and the appellant was declared 'ex-parte'. The claimants wanted to make use of the opportunity; and accordingly, they filed IA M.A.C.A. No. 3346 of 2015 **==> picture [20 x 8] intentionally omitted <==** No.4921/2014, seeking to enhance the claim from ₹5,00,000/- to 15,00,000/-, which was allowed by the₹ Tribunal without notice to the appellant herein. The learned counsel also points out that the move from the part of the claimants was a conscious one, in so far as they wanted to protect the brother-in-law of the deceased, who was actually riding the vehicle at the relevant time, also in his capacity as the registered owner of the motorcycle as on the date of accident. The name of the rider was also not given and the liability was sought to be mulcted upon the shoulders of the appellant and the insurer of the vehicle. 7. In support of the above contention, the learned counsel for the appellant makes a reference to Annexure1 produced along with IA No.4278/2015, which is a notice issued by the Sub Inspector of Police, Vattappara Police Station to the person, by name, **Sudevan** , who was stated as the RC owner of the vehicle on the date of the accident. As per the said proceeding, the police informed M.A.C.A. No. 3346 of 2015 **==> picture [20 x 8] intentionally omitted <==** the person concerned as to the necessity to proceed with further steps in respect of Crime No.230/2006, registered against him under Sections 279 & 304(A) IPC and asked him to produce the driving licence and such other vehicle records immediately. But, on receipt of notice, the - person, by name, **Sudevan** submitted Annexure 2 reply before the Police conceding that the vehicle was in his ownership, that he was riding the vehicle at the relevant time and that he was having a valid driving licence for the period from 24.09.2005 to 31.05.2018. Annexure-3 is a copy of the 'kychit', whereby, the motorcycle, after examination by the concerned AMVI, was released to the person, by name, **Sudevan** on 17.08.2006, on an undertaking that the vehicle would be produced by him as and when required, in connection with the case registered against him. Annexure-4 is the registration particulars of the vehicle, bearing Reg.No.KL-01-L-9652, wherein it is stated that the transfer of ownership was registered in the name of **Sudevan** from 29.08.2005. M.A.C.A. No. 3346 of 2015 **==> picture [20 x 8] intentionally omitted <==** 7. The accident, admittedly, was on 20.07.2006. This being the position, it is quite evident that the appellant was not the registered owner of the vehicle on the relevant date, nor was he having any connection, whatsoever, in relation to the vehicle and the ownership remained with the person, by name, **Sudevan** . This being the position, if the contents of Annexures 1 to 3 are correct, it is a matter to be looked into seriously. 8. Yet another aspect to be noted is that the rider of the vehicle was never brought into the party array. If the person, by name, **Sudevan** , was the brother-in-law of the deceased and if the vehicle was standing in the registered ownership of the said person, by name, **Sudevan** , and the vehicle was produced before the Police and was subsequently, taken on 'kychit' by the aforesaid person, **Sudevan** , how the parties can plead ignorance regarding the actual state of affairs is a mystery. That apart, how negligence could be fixed upon a person, who was riding the vehicle, without impleading him in the M.A.C.A. No. 3346 of 2015 ..8.. party array, is also a matter of concern; and on what basis, the Tribunal proceeded to arrive at such a finding is not known. The factual particulars as to registered ownership, possession, taking the vehicle on 'kychit' etc. were discernible from police records, which were produced before the Tribunal and were evident from Ext.A3 charge sheet. Despite this, why a reference was not made by the Tribunal to these facts and figures virtually pricks the conscience of this Court. It is a matter, which has to be enquired whether any fraud was played upon the Tribunal from the part of anybody and if any such instance is there, the same requires to be proceeded against by way of appropriate proceedings, as the stream of justice is not liable to be poisoned by anybody. It is settled that fraud and justice never co-exist, as held by the Hon'ble Supreme Court in **United India Insurance Co. Ltd.** v. **Rajendra Singh & Others** [2000 (3) SCC 581]. 9. In the above circumstances, we do not require M.A.C.A. No. 3346 of 2015 **==> picture [20 x 8] intentionally omitted <==** any second thought to hold that the award under challenge requires to be set aside; and we do so. The matter is remitted to the Tribunal for fresh consideration in the light of the above observations, with liberty to the parties to raise appropriate/additional pleadings and let in evidence. The parties shall appear before the Tribunal on **08.03.2016** . It is made clear that the appellant would be entitled to get refund of the statutory deposit already effected. Sd/- **P.R. RAMACHANDRA MENON JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** bka/-