The Oriental Insurance Company Ltd. v. A. Ashok Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 14[TH] DAY OF DECEMBER 2021 / 23RD AGRAHAYANA, 1943** ## **MACA NO. 2498 OF 2012** **AGAINST THE AWARD DATED 01.09.2012 IN OPMV 170/2011 OF THE MOTOR** ## **ACCIDENT CLAIMS TRIBUNAL, KASARAGOD** ## **APPELLANT/ 3RD RESPONDENT:** THE ORIENTAL INSURANCE COMPANY LTD. PALGHAT, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADVS. GEORGE CHERIAN (SR.) K.S.SANTHI ## **RESPONDENT/CLAIMANT:** A.N.ASHOK KUMAR S/O. N. LAKSHMANA RESIDING AT KRISHNA NILAYAM, BANK ROAD, KASARAGOD, KASABA VILLAGE AND POST OF KASARAGOD TALUK, AND DISTRICT. BY ADV SRI.SURESH KUMAR KODOTH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2498 OF 2012 2** ## **Dated this the 14[th] day of December, 2021.** ## **JUDGMENT** The appellant was the 3rd respondent-insurer in OP(MV) No. 170/2011 on the file of the Motor Accidents Claims Tribunal, Kasaragod. The respondent in the appeal was the petitioner before the Tribunal. As the appellant had admitted the insurance policy and its liability, the appellant has not impleaded respondents 1 and 2 as parties in the appeal. Therefore, for the sake of convenience, the parties are referred to as per the status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the damages sustained to his motorcycle bearing registration No.KL 14H 7796 ## **MACA NO. 2498 OF 2012 3** (motorcycle). It was his case that, while his son was driving the motorcycle from Kasaragod to Vidyanagar, a tipper lorry bearing registration No. KL 14J 1589 (lorry), driven by the first respondent in a negligent manner, hit the motorcycle. The petitioner’s son sustained serious in the accident and the was injuries motorcycle substantially damaged. The lorry was owned by second respondent and insured with the third respondent. Hence, the petitioner had claimed an amount of Rs.50,005/- from the respondents as damages. 3. The respondents 1 and 2 had filed a written statement, inter alia, contending that the accident happened due to the negligence of the driver of the motorcycle. However, it was stated that as the lorry was insured with the third respondent, the third respondent is to indemnify the liability of the second respondent. 4. The third respondent had filed a written statement contending that, as per the investigation ## **MACA NO. 2498 OF 2012 4** conducted by the third respondent, the accident occurred due to the rider of the motorcycle - son of the petitioner, who was a minor and did not hold a valid driving license. Therefore, the third respondent was not liable to pay any amount as compensation. Likewise, the damage caused to the motorcycle was not major as claimed in the claim petition. The motorcycle was insured with the National Insurance Company by a comprehensive policy, so the remedy of the petitioner was to claim reimbursement from his insurer. The third respondent also put the petitioner to a strict proof to prove the cost of the repairs, labour charges, purchase of parts and the damage caused to the motorcycle. The third respondent hence prayed the claim petition be dismissed. 5. The petitioner’s son, who was injured in the accident, along with the petitioner filed O.P.(M.V) No.169/2011 before the same Tribunal, against the respondents, seeking compensation for the injuries ## **MACA NO. 2498 OF 2012 5** sustained in the accident. 6. The Tribunal consolidated and jointly tired the two claim petitions. 7. The petitioner produced and marked Exhibits A1 to A12 in evidence. The third respondent produced Exhibits B1 to B4 in evidence. 8. The Tribunal, by its common award allowed the captioned claim petition, by permitting the petitioner to recover from the third respondent an amount of Rs.29,938/- with interest at the rate of 8% per annum from the date of petition till the date of realisation and proportionate cost. 9. Aggrieved by the impugned award, the third respondent is in appeal. 10. Heard; Smt. K.S. Santhi, the learned counsel appearing for the appellant/third respondent-insurer and Sri.Suresh Kumar Kodoth, the learned counsel appearing for the respondent/petitioner. ## **MACA NO. 2498 OF 2012 6** 11. The questions that arise for consideration in this appeal are (i) whether the impugned award passed by the Tribunal is sustainable in law or not? (ii) whether there are cogent reasons to remit the matter back to the Tribunal for fresh consideration. 12. The definite case of the petitioner was that his motorcycle was damaged in the accident on 25.02.2010 and he had suffered a loss of Rs.50,005/-. In order to prove his case, the petitioner had produced Exhibit A10 survey report, Exhibit A11 cash bill issued by the Surveyor and Exhibit A12 quotation. 13. Indisputably, the petitioner did not examine the Surveyor and had also not produced the invoices showing the actual expenditure incurred by him to repair the motorcycle. 14. This Court in **Associated Transport Corporation (P) Ltd. v. National Insurance Company** **Ltd.** [1989 (1) KLT 386] has succinctly held that the onus **MACA NO. 2498 OF 2012 7** of proof is on the plaintiff to prove the quantum of damages suffered. It is also held that, it is imperative for the plaintiff to examine the Surveyor and prove the survey report, and the Surveyor has to give notice to the person from whom the damages is sought to be claimed. 15. In the instant case, it can be gathered from Exhibit A10 survey report, the Surveyor has only estimated the damages incurred by the petitioner. The actual expenditure incurred by the petitioner to purchase the spare parts and for the labour charges is not forthcoming. Likewise, the Surveyor was not examined and the Surveyor had not given notice to the third respondent before carrying out the inspection. In the above legal and factual matrix, I am of the definite view that the Tribunal went wrong in allowing the claim petition without sufficient material as per the principles laid down in **Associated Transport Corporation** (supra). Nevertheless, I am of the considered opinion that ## **MACA NO. 2498 OF 2012 8** both parties have to be given a further opportunity to prove their respective stands. 16. On a comprehensive re-appreciation of the pleadings, materials on record, the law on the point and after considering the rival contentions, not-withstanding the mandate under Order XLI Rule 23A of the Code of Civil Procedure, 1908 to meet the ends of justice, I find cogent reasons to remit the matter back to the Tribunal for fresh consideration. In the result, the appeal is allowed by remand. The the impugned award in O.P.(M.V) No.170/2011 is set aside. The parties are directed to appear before the Tribunal on 10.01.2022, either in person or through counsel. The Tribunal shall permit both the petitioner and the third respondent to let in additional evidence and prove their respective stands. Considering the fact that the claim petition is of the year 2011, the Tribunal shall make every endeavour to dispose of O.P(M.V) **MACA NO. 2498 OF 2012 9** No.170/2011, as expeditiously as possible and in accordance with law. Sd/- **C.S.DIAS, JUDGE** rmm14/12/2021