High Court of KeralaSingle JudgeAppeal allowed; direction to recover from appel...

Tojo and Thomas v. Jameela W/o Late Shahul Hameed, Shahul Noufal Rawther, Khadeeja Rejimon, Fathima, Oriental Insurance Company Limited

Case / Petition Number:MACA NO. 206 OF 2022
Neutral Citation:/

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C.S.Dias
Judgment Date
2022-02-17
Court Decision / Holding
Appeal allowed; setting aside the Tribunal’s direction that the 3rd respondent/insurer recover the compensation amount from the appellants. The van had a valid fitness certificate as on the date of the accident, per Annexure-A1. The insurer is entitled to the Rs.25,000 deposited as costs, to be disbursed to the insurer in accordance with law if the insurer files an application before the Tribunal. The order reaffirms that recovery of the amount from the appellants is not sustainable given the evidence of fitness, and directs the Tribunal to proceed accordingly with disbursement of costs rather than recovery from the insureds.
Final Disposition
Appeal allowed; direction to recover from appellants set aside; insurer to receive Rs.25,000 costs deposited; further disbursement as per law by the Tribunal; neutral citation unavailable.

Parties to the Case

Appellants / Petitioners

  • Tojo
  • Thomas

Respondents

  • Jameela W/o. Late Shahul Hameed, Padickal House, Erumeli P.O., Kottayam - 686001; now residing at C/O. Sulficar, Pulickal Parambil House, Puthanangadi, Kottayam-686001
  • Shahul Noufal Rawther, S/o. Late Shahul Hameed, Padickal House, Erumeli P.O., Kottayam-686509
  • Khadeeja Rejimon, D/o. Late Shahul Hameed, Padickal House, Erumeli P.O., Kottayam, now residing at Thoppil Thazhe House, Erumeli South P.O., Kottayam-686510
  • Fathima, D/o. Late Shahul Hameed, Padickal House, Erumeli P.O., Kottayam, now residing at Pulickal Parambil House, Puthanangadi, Kottayam-686001
  • The Oriental Insurance Company Limited, Bakel Junction, Kottayam Ranni Branch, Kottayam-686001

Legal Representation & Advocates

Counsels for Petitioners

  • • A.K. Alex P. Kuruvilla Jacob

Counsels for Respondents

  • • P.K. Manojkumar

Case Synopsis & Summary

This is a Motor Accidents Claims Appeal filed in the Kerala High Court under MACA No. 206 of 2022 challenging an order of the Motor Accidents Claims Tribunal, Kottayam (O.P. MV No.1863/2017). The petition was a death claim under Section 166 of the Motor Vehicles Act, 1988, arising from a road collision on 23 March 2016 where Motheen Rawther @ Afsi, a scooter rider, died after being struck by a van. The Tribunal awarded Rs. 18,93,400 along with interest and costs to the petitioners (dependents of the deceased). It held that because the van lacked a fitness certificate, there was a fundamental breach of policy conditions and, following Pareed Pillai vs. Oriental Insurance Company Ltd., directed the insurer to pay the amount and recover it from the insured owners. The appellants (respondents 1 and 2 before the Tribunal) argued against this recovery direction, contending the vehicle did have a valid fitness certificate as on the date of the accident. They produced Annexure-A1 showing a fitness certificate valid from 04.12.2015 to 31.12.2016. The High Court found the certificate valid on the date of the accident, set aside the recovery direction, and allowed the appeal with a condition that Rs.25,000 deposited as costs be released to the insurer, subject to further disbursement rules. The decision also references Pareed Pillai (supra).

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants submit that the vehicle (van KL-62A-684) possessed a valid fitness certificate on the date of the accident (23.03.2016), as evidenced by Annexure-A1. Therefore, there was no breach of policy conditions warranting recovery from the insured. They contend that Pareed Pillai (supra) was misapplied by the Tribunal to justify recovery from them, and with the certificate produced, the impugned recovery order loses its foundation. The lack of a timely challenge by the appellants notwithstanding, they insist the Tribunal’s reasoning should be reversed and the recovery directed against them should not stand.

Contentions of Respondents

The 3rd respondent insurer contends that the van did not have a valid fitness certificate on the date of the accident and that the petitioners were not dependents as claimed. It argues that the Tribunal was justified in applying the Pareed Pillai ratio to permit payment by the insurer and recovery from the insured due to breach of policy conditions. It also notes the appellants failed to produce the fitness certificate earlier and that the deposit before the Tribunal should be considered as cost.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Pareed Pillai vs. Oriental Insurance Company Ltd.2018 (5) KHC 1Mentioned OnlyCited by the Tribunal as the basis for recovery against the insured upon breach of policy conditions; High Court’s decision hinges on evidence of fitness certificate and does not apply Pareed Pillai to sustain recovery in this case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

MACA NO. 206 OF 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 17[TH] DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943** **MACA NO. 206 OF 2022** **AGAINST THE ORDER/JUDGMENT IN OPMV 1863/2017 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANTS/RESPONDENTS 1 AND 2:** 1 TOJO, AGED 39 YEARS S/O. THOMAS, KIDANGAYIL HOUSE, KISUMAM, KOLLAMULA, THULAPALLY (VIA), ERUMELI. 2 THOMAS, S/O. MATHEW, KIDANGAYIL HOUSE, KISUMAM, KOLLAMULA, THULAPALLY (VIA), ERUMELI. BY ADVS. A.K.ALEX P.KURUVILLA JACOB ## **RESPONDENT/S:** 1 JAMEELA W/O. LATE SHAHUL HAMEED, PADICKAL HOUSE, ERUMELI P.O., KOTTAYAM, NOW RESIDING AT C/O. SULFICAR, PULICKAL PARAMBIL HOUSE, PUTHANANGADI, KOTTAYAM -686001. 2 SHAHUL NOUFAL RAWTHER, S/O. LATE SHAHUL HAMEED, PADICKAL HOUSE, ERUMELI P.O., KOTTAYAM-686509. 3 KHADEEJA REJIMON, D/O. LATE SHAHUL HAMEED, PADICKAL HOUSE, ERUMELI P.O., KOTTAYAM, NOW RESIDING AT THOPPIL THAZHE HOUSE, ERUMELI SOUTH P.O., KOTTAYAM-686510. 4 FATHIMA, D/O. LATE SHAHUL HAMEED, PADICKAL HOUSE, ERUMELI P.O., KOTTAYAM, NOW RESIDING AT PULICKAL PARAMBIL HOUSE, PUTHANANGADI, KOTTAYAM-686001. MACA NO. 206 OF 2022 **==> picture [7 x 9] intentionally omitted <==** 5 THE ORIENTAL INSURANCE COMPANY LIMITED, BAKEL JUNCTION, KOTTAYAM RANNI BRANCH, KOTTAYAM686001, REPRESENTED BY ITS MANAGER. BY ADV P.K.MANOJKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 206 OF 2022 3 ## **JUDGMENT** The appellants were the respondents 1 and 2 in O.P (MV) No.1863/2017 on the file of the Motor Accidents Claims Tribunal, Kottayam. The respondents 1 to 4 in the appeal were the petitioners and the 5[th] respondent was the 3[rd] respondent before the Tribunal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short, 'Act'), claiming compensation on account of the death of Motheen Rawther @ Afsi (deceased), the son of the 1[st] petitioner and brother of the petitioners 2 to 4. It was their case that, on 23.03.2016, while the deceased was riding his scooter bearing registration No.KL-34C 5924 through the KarinkallummoozhyErumely road, a van bearing registration No.KL-62A-684, driven by the 1[st] respondent in a negligent manner, hit the scooter of the deceased. The van was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The deceased was running a restaurant. The petitioners were the dependents of the deceased. Hence, they claimed a compensation of Rs.25,00,000/- from the MACA NO. 206 OF 2022 4 respondents. 3. The respondents 1 and 2 did not file any written statement. 4. The 3[rd] respondent had filed a written statement, contending that the petitioners were not the dependents of the deceased. The 3[rd] respondent also disputed the age, income and occupation of the deceased. It was also stated that the accident was caused due to the negligence of the deceased. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioners to recover from the 3[rd] respondent an amount of Rs.18,93,400/- with interest and cost. However, since the 2[nd] respondent did not produce the fitness certificate of the van, the Tribunal following the principles laid down by a larger Bench of this Court in **Pareed Pillai vs. Oriental Insurance Company Ltd.** [2018 (5) KHC 1] permitted the 3[rd] respondent to pay the compensation amount and recover it from the respondents 1 and 2. 6. Aggrieved by the direction in the impugned award, permitting the 3[rd] respondent to recover the compensation amount from the respondents 1 and 2, the respondents 1 and 2 MACA NO. 206 OF 2022 5 are in appeal. 7. Heard; Sri. A.K. Alex, the learned counsel appearing for the appellants/respondents 1 and 2 and Sri. P.K. Manojkumar, the learned counsel appearing for the 5[th] respondent-insurer. As the appeal is filed only with regard to right of recovery granted to the 5[th] respondent, service of notice on the respondents 1 to 4 was dispensed with. 8. The point that arises for consideration in this appeal is whether the direction in the impugned award, permitting 5[th] respondent/insurer to recover the compensation amount from the appellants/respondents 1 and 2, is sustainable in law or not? 9. The specific contention of the 3[rd] respondent was that the van did not have a fitness certificate as on the date of accident. Even though the respondents 1 and 2 had entered appearance, they did not file any written statement and contest the proceeding. They also did not produce the fitness certificate of the vehicle, despite there being a contention raised by the 3[rd] respondent and the Tribunal directing the production of the said document. 10. It was in the above circumstances, that the Tribunal following the ratio laid down in **Pareed Pillai** (supra), found that 6 MACA NO. 206 OF 2022 there was a fundamental breach of the insurance policy conditions. Accordingly, the Tribunal permitted the 3[rd] respondent to pay the compensation amount and recover it from the appellants/respondents 1 and 2. 11. The appellants have now produced Annexure-A1 certificate issued by the Sub Regional Transport Officer, Ranni which certifies that the vehicle bearing registration No.KL-62A0684 – the van in question - had a valid fitness certificate for the period from 04.12.2015 to 31.12.2016. Thus the appellants have proved that the van had a valid fitness certificate as on the date of accident i.e., 23.03.2016. 12. In the light of Annexure-A1, I am satisfied and convinced that the van had a fitness certificate as on the date of accident. Thus the appellants have disproved the allegation of the 3[rd] respondent, that the van did not have a valid fitness certificate as on the date of accident. However, in view of the fact that the appellants/respondents 1 and 2 were not diligent in prosecuting the claim petition before the Tribunal, by not producing the fitness certificate and have now unnecessarily dragged the 3[rd] respondent to this Court, I am of the firm view that the appeal can be allowed, by setting aside the direction, permitting the 3[rd] 7 MACA NO. 206 OF 2022 respondent to recover the compensation amount from the appellants, but subject to the condition that the amount deposited by the appellants as a pre-condition to file the appeal, has to be released to the 3[rd] respondent/insurer as cost of the proceedings before the Tribunal and this Court. In the result, the appeal is allowed, by setting aside the direction in the impugned award, permitting the 3[rd] respondent to recover the compensation amount from the appellants/respondents 1 and 2, but, subject to the condition that the 3[rd] respondent/insurer would be entitled to the amount of Rs.25,000/-, that was deposited before the Tribunal as per receipt bearing No.RCD/875/21.22 dated 09.02.2022, as cost stated above. If the 3[rd] respondent files an application before the Tribunal, the same shall be allowed and above said amount shall be disbursed to the 3[rd] respondent/insurer in accordance with law. Sd/- **C.S.DIAS JUDGE** rkc/17.02.2022 MACA NO. 206 OF 2022 8 ## **APPENDIX** ## **APPELLANTS' ANNEXURES** ANNEXURE -1: CERTIFIED COPY OF THE CERTIFICATE ISSUED BY THE SUB REGIONAL TRANSPORT OFFICE, RANNI [IA NO.2/2022] ANNEXURE -1: THE ORIGINAL RECEIPT SHOWING THE DEPOSIT OF RS.25000/BEFORE THE MACT, KOTTAYAM IN OP(MV) 1863/2017.