The Oriental Insurance Co. Ltd. v. Devasia Mathai and others (MACA No. 2062 of 2006)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** ## **TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930** **MACA.No. 2062 of 2006()** **----------------------------------** ## **OPMV.217/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA** **....................** ## **APPELLANT/6TH RESPONDENT:** **----------------------------------------------** **THE ORIENTAL INSURANCE CO. LTD., KOTHAMANGALAM, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH,KOCHI-18** **BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** ## **RESPONDENTS/CLAIMANTS/RESPONDENT/4TH RESPONDENT:** **------------------------------------------------------------------------------------------** **1. DEVASIA MATHAI, S/O. MATHAI,** - **RESIDING AT POTTANANIYIL HOUSE, VELLIKULAM, TEEKOY, KOTTAYAM.** **2. MATHEW DEVASIA, S/O. DEVASIA,** - **RESIDING AT POTTANANIYIL HOUSE, NERIYAMANGALAM, MANIMARUTHUMCHAL.** **3. KURIACHAN DEVASIA, S/O. DEVASIA, RESIDING AT POTTANANIYIL HOUSE, KAMASHI, THANKAMANI, IDUKKI.** **4. DEVASIA DEVASIA, S/O. DEVASIA, RESIDING AT POTTANANIYIL HOUSE, CHENNADU, ERATTUPETTA, KOTTAYAM.** **5. JOSEPH DEVASIA, S/O. DEVASIA, RESIDING AT POTTANANIYIL HOUSE, VELLIKULAM, TEEKOY, KOTTAYAM.** **6. MARY GEORGE, W/O. GEORGE T.J., THUNDATHIL HOUSE, KUDIYANMALA, NADUVIL, CANNOORE.** **7. ALEYKUTTY SEBASTIAN, W/O. JOSE JACOB, CHETHIPUZHA HOUSE, MAMMOODU, CHANGANACHERRY.** **8. JOSE PAUL, KAPPIYARUMALAYIL HOUSE, PAINGOTTOOR, KOTHAMANGALAM.** **ADV. SRI.LIJU. M.P FOR R.8 SRI.BABY THOMAS FOR R1, R2, R4 SRI.LATHEESH SEBASTIAN FOR R1, R2, R4** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2008, ALONG WITH MACA NO. 2063 OF 2006 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Rs/** ## **M.N.KRISHNAN, J** ## **===================== MACA Nos.2062,2063,2064/2006 & 1698,1699,1700/2007 &W.P(C)Nos.29066, 29067, 31987 & 32145 OF 2006 =====================** **Dated this the 25th day of November 2008** ## **JUDGMENT** These appeals and writ petitions had arisen out of the award passed by the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV) Nos.217/02, 218/02,341/02,219/02 and 351/2002.MACA No.2062 of 200 is preferred against the award in O.P.(MV)No.217 of 2002. It relates to compensation on account of the death of an aged lady Thresiamma and the Tribunal has allowed the claim. The Tribunal made driver of the jeep liable for the accident and ordered the insurance company of the jeep to pay the amount. It is against that decision, the insurance company has come up in appeal. 2. The contention of the insurance company is that the vehicle involved in the accident at the time of the issuance of the policy was a private jeep whereas it is seen from the documents that it is used as a taxi and therefore the policy is not issued to a taxi vehicle and there is suppression of materials and further being a policy issued for a private MACA 2062/2006 & concases -:2:- vehicle the passengers in the jeep are gratuitous passengers not covered by the policy as the policy issued is only an Act only policy and therefore it is liable to be totally exonerated from the liability. 3. So far as service is concerned, R3 in the MACA is dead and R7 is found to be abroad. Since the matter requires reconsideration at the hands of the Tribunal, the legal representatives of R3 can be impleaded there and notice to R7 can also be issued from there for the reason that other claimants are represented by the learned counsel. 4. MACA 2063/2006 is filed against the award in O.P.(MV) No.219/2002. There the claimant is impleaded as R1 and the owner, viz., Jose Paul is impleaded as R2 and the appellant is the 6[th] respondent before the Tribunal. There also the very same contention is raised. 5.MACA 2064/2006 is preferred against the award in O.P.(MV) No.351/2002 by the 6[th] respondent insurance company impleading the claimant as R1 and the owner of the jeep as R2. Here also the service is complete. 6.MACA 1698/2007 is preferred against the award in O.P.(MV) No.351/2002 and it is filed by the 4[th] respondent Jose Paul impleading the claimant as R1 and R2 to R7 are R1,R2,R3,R5,R6 and R7 respectively. Here, R1 in the appeal has left India and the name of R3's address differs MACA 2062/2006 & concases -:3:- and R5, the driver of the jeep is not known. 7. MACA 1699/2007 is preferred against the award in O.P.(MV) No.219/2002 and it is also filed by the 4[th] respondent with the other respondents as in the other cases. 8.MACA 1700/2007 is preferred against the award in O.P.(MV) No.217/2002. It is filed by R4 in the claim petition impleading R1 to R7 as claimants and also R8 to R13 as other respondents in the claim applications. 9.W.P.(C)No.29067/2007 is preferred against the award in O.P.(MV) No.218/2002 and the writ petitioner therein is the 4[th] respondent in the claim applications. R1 is the claimant and R2 to R7 are respectively R2 to R4 and R5 to R7. He has also impleaded as R8 Jossy Varghese as a party. 10.WP(C)No.29066/2007 is preferred against the award in O.P.(MV) No.341/2002 and a writ petition is also filed by R4. There also R1 is the claimant. R2 to R8 are R1 to R3 and R5 to R8 respectively. 11.W.P.(C)31987/2006 is filed against the award in O.P.(MV) No.218/2002 and the petitioner therein is the 6[th] respondent, who has chosen to file appeal against the claimant as R1. R2 is the 4[th] respondent in the O.P. (MVs.). 12.W.P.(C)No.32145/2006 is preferred against the award in O.P. (MV)No.341/2002 by the 6[th] respondent in O.P.(MV) against the claimant MACA 2062/2006 & concases -:4:- as R1 and R2 is the 4[th] respondent. 13. It is true that service is not complete with respect to one or two persons but it is all dispensed with the reason that the entire matter requires reconsideration at the hands of the Tribunal and directions are being issued to take out notice to all parties concerned for a fresh trial of the cases. The person responsible for all the confusion is the 4[th] respondent in the claim petitions and he may have to take steps for serving notice on all. 14. Now let me consider about the questions involved in the writ petitions and in the appeals. At the outset, I may state about the maintainability of the writ petitions. Under Section 173(2) of the Motor Vehicles Act, when the awarded compensation is less than Rs.10,000/- it bars an appeal. When an appeal is barred whether writ petitions can be entertained had been the subject matter of discussion in many cases. Views are taken to the effect that if there is application of the provision of revision in motor accident claims cases in such cases writ petitions need not be entertained. So far as Kerala is concerned, going by Rule 395 of the Kerala Motor Vehicles Rules, Section 115 is not extended to Motor Accidents Claims Tribunal. So when an error is committed by the court below then necessarily the jurisdiction under Article 226 or Article 227 has to be exercised to correct the mistake. Further there will be difficulty in MACA 2062/2006 & concases -:5:- proceeding with other cases as well because if some are appealable and others are non-appealable, the question whether the non filing of appeal in one matter will estop the other party from filing a regular appeal will always arise for consideration. But substantial justice requires consideration of these materials and I think it fit to invoke the jurisdiction under Articles 226 & 227 of the Constitution to entertain these writ petitions. 15. Now let me consider about the facts in short. Claimants in O.P. (MV)No.351, 219, 341 and 218 of 2002 along with Thressiamma were passengers in a jeep bearing Regn.No.KL-6A/2117. The said jeep was driven by the 5[th] respondent in the claim applications, viz., Jose George. Unfortunately, when the vehicle reached the place of accident it collided with a bus bearing Regn.No.KL-6/5043 driven by R2 which came from the opposite direction. As a result of the impact, Thressiamma died and the others sustained injuries. The legal representatives of Thressiamma had filed O.P.(MV)No.217/2002 for compensation. 16.Though a charge sheet was filed against the driver of the bus, the Tribunal found the driver of the jeep totally negligent and directed the owner, driver and the insurance company of the jeep to pay the compensation. The Tribunal recorded that the road at the place of accident was having a width of 5.01 metres and the accident had taken place 1.91 MACA 2062/2006 & concases -:6:- metres west of the eastern tar end. It also noted that the road was having a straight vision of 30 metres to the south and 100 metres to the north. Just on the basis of that scene mahazar the Tribunal jumped into the conclusion regarding the negligence of the jeep driver. I think the matter cannot be decided purely on the basis of a scene mahazar when the very same investigating agency after conducting investigation had laid a charge sheet against the bus driver. So, I vacate the finding on the question of negligence and it is to be reconsidered by permitting all to adduce evidence. 17.The other major question is regarding the ownership of the jeep. The Tribunal found that R4 in the claim petitions is the owner of the jeep. The said 4[th] respondent had filed MACAs and writ petitions contending for the position that he has nothing to do with the vehicle on the date of accident. According to him, he purchased the vehicle from one Jose Jacob on 8.3.2001 and sold it to Josy Varghese who is impleaded as 8[th] respondent in some of the OP(MVs) on 26.11.2001. In the writ petitions he had produced materials which would indicate that even the registration has been changed into the name of this Josy Varghese on 26.11.2001 itself. Ext.B1 policy is an Act only policy. Ext.B2 is a permit relating to the jeep from 30.11.2001 to 29.12.2006. The accident had taken place on 20.12.2001. So from these materials it can be seen that the vehicle on the date of accident MACA 2062/2006 & concases -:7:- was being plied as a taxi vehicle. From these materials one has to find out who was the owner of the vehicle on the date of accident. Unfortunately this Jose Paul did not raise this contention at all before the Tribunal and now by virtue of the documents available before the transport department there is an indication that he was not the owner of the vehicle. The ascertainment of the owner of the jeep on the date of the accident also assumes importance. So the matter requires reconsideration on that angle also. 18.The next question is regarding liability. Admittedly the jeep had a policy issued by the insurance company. According to the insurance company, the policy was taken for a private vehicle, i.e. a private jeep. But, at the time of accident, it is seen that the vehicle was being plied as a taxi. So the learned counsel for the insurance company would contend that at any rate, the policy is taken either by suppressing material facts or subsequent to the taking of the policy the vehicle has been converted. If it is so, since the vehicle is covered only by a policy with respect to private persons, it cannot be extended to a taxi vehicle. Learned counsel would further contend that in the light of the fact that the policy is only an Act only policy, applying the dictum laid down in New India Assurance Co.Ltd. v. Asha Rani(2003(1)KLT 165(SC) and in United India Insurance Co.Ltd. v.Tilak Singh(2006(2) KLT 884(SC), the persons travelling in the car are MACA 2062/2006 & concases -:8:- equated or will have the status of gratuitous passengers not covered by the policy and therefore the insurance policy does not cover the risk of passengers travelling in such vehicle. It is a matter that requires consideration and one has to ascertain the nature of the policy whether there is any fraud or misrepresentation on anybody, etc.. 19.So from these discussions, all the awards under challenge are set aside and the matter is remitted back to the Tribunal for the following:(1)In all these cases the 4[th] respondent, viz., Jose Paul is directed to take steps to implead Josy Varghese as a supplemental respondent.(2) Jose Paul is directed to take out notice to all concerned in all these O.P.(MVs) for the purpose of further adjudication.(3) The Tribunal shall permit all the parties to file their pleadings, additional pleadings and produce documentary as well as oral evidence and decide the question of negligence afresh.(4) The Tribunal is directed to consider the question regarding the nature of the policy, the coverage of the policy and whether there is any fraud or misrepresentation with regard to the issuance of the policy and whether the insurance company of the jeep is liable at all for compensation.(5) The Tribunal shall also decide who was the owner of the jeep on the date of the accident and also decide whether the 4[th] respondent in the claim petition who is liable. Parties are directed to appear before the Tribunal on MACA 2062/2006 & concases -:9:- 30.12.2008. Appeals and the writ petitions are disposed of accordingly. ## **M.N.KRISHNAN, JUDGE** **Cdp/-**