Tom Liys Joy v. Smt. Sindhu, Krishna Saleesh (Minor), Naivadhya Saleesh (Minor) and Abhijith, The Manager, National Insurance Co. Ltd., and Mr. Anjalo

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 02ND DAY OF JULY 2019 / 11TH ASHADHA, 1941** ## **OP (MAC).No.68 of 2019** **AGAINST THE ORDER/JUDGMENT IN OPMV 1889/2015 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **PETITIONER:** **TOM LIYS JOY, AGED 25 YEARS, S/O.C.A.JOY, CHEMMALA HOUSE, VILANGU KARA, KIZHAKKAMBALAM, VILANGU PO, PIN-683 561, REPRESENTED BY POWER OF ATTORNEY HOLDER MR.C.A.POULOSE, AGED 60 YEARS, S/O.ALIAS, CHAMMALA HOUSE, VILANGU P.O., PIN-683 561.** **BY ADVS. SRI.N.M.MOHAMMED AYUB SRI.P.V.SHAMSUDDIN** ## **RESPONDENTS:** |**1**|**SMT. SINDHU,**| |---|---| ||**AGED 41 YEARS,**| ||**W/O.LATE SALEESH, MANAKULANGARA,**| ||**THOPPIL JUNCTION,**| ||**THRIKKAKKARA P.O., PIN-682 021.**| |**2**|**KRISHNA SALEESH (MINOR),**| ||**AGED 16 YEARS,**| ||**D/O.LATE SALEESH, MANAKULANGARA, THOPPIL JUNCTION,**| ||**THRIKKAKKARA P.O., PIN-682 021,**| ||**REPRESENTED BY THE MOTHER, NEXT FRIEND AND 1ST**| ||**RESPONDENT SMT.SINDHU, W/O.LATE SALEESH,**| ||**MANAKULANGARA, THOPPIL JUNCTION,**| ||**THRIKKAKKARA P.O., PIN-682 021.**| |**3**|**NAIVADHYA SALEESH (MINOR),**| ||**AGED 11 YEARS,**| ||**D/O.LATE SALEESH, MANAKULANGARA, THOPPIL JUNCTION,**| ||**THRIKKAKKARA P.O., PIN-682 021,**| ||**REPRESENTED BY THE MOTHER, NEXT FRIEND AND 1ST**| ||**RESPONDENT SMT.SINDHU, W/O.LATE SALEESH,**| ||**MANAKULANGARA, THOPPIL JUNCTION,**| ||**THRIKKAKKARA P.O., PIN-682 021.**| **OP (MAC).No.68 of 2019 2** **4 ABHIJITH, AGED 25 YEARS, S/O.JOY, KOIKKARA HOUSE, KIZHAKKAMBALAM, VILANGU P.O., PIN-683 561. 5 THE MANAGER, NATIONAL INSURANCE CO. LTD., KOLENCHERY P.O., PIN-683 561. 6 MR.ANJALO, AGED 25 YEARS, S/O.BENNY JOSEPH, THAYANKERI HOUSE, NEAR MARKET, KIZHAKKAMBALAM P.O., PIN-683 562.** **SRI.LAL GEORGE, SC** **THIS OP (MAC) HAVING COME UP FOR ADMISSION ON 02.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OP (MAC).No.68 of 2019 3** ## **JUDGMENT** The petitioner is arrayed as the 1[st] respondent in O.P(M.V) No.1889 of 2015 on the file of the Motor Accidents Claims Tribunal, Ernakulam, which is a claim petition filed by respondents 1 to 3 herein, being the legal representatives of one Saleesh, who died in a motor accident, which occurred on 01.08.2015, involving a motor cycle bearing Registration No.KL-40/J-3842, owned by the petitioner and ridden by the 4[th] respondent herein. At the place of accident, the said motor cycle hit a scooter bearing Registration No.KL-07/CA-2361, ridden by the deceased, who succumbed to injuries. Claiming a total compensation of Rs.15,00,000/- under different heads, respondents 1 to 3, who are the widow and minor children of the deceased filed a claim petition before the Tribunal. 2. The document marked as Ext.P1 is a copy of the claim petition and Ext.P2 is the written statement dated 15.06.2017 filed by the petitioner herein. In the written statement, the petitioner contended that, on the date of accident, he had handed over possession of the vehicle to one Angelo, the 6[th] respondent herein, who entrusted the vehicle to the 4[th] respondent herein, without the **OP (MAC).No.68 of 2019 4** knowledge and consent of the petitioner. The 4[th] respondent was not holding a valid driving licence and as such, the 5[th] respondent insurer has taken a contention that they are not liable to indemnify the petitioner, as there is violation of policy conditions. 3. The petitioner moved Ext.P3 application, i.e., I.A. No.747 of 2018 in O.P.(M.V) No.1889 of 2015 before the Tribunal seeking an order to implead the said Angelo as the additional 6[th] respondent. Such an application has been filed under Order I, Rule 10(2), read with Section 151 of the Code of Civil Procedure, 1908. In the said application, the 5[th] respondent insurer filed Ext.P5 counter affidavit. The document marked as Ext.P6 in this original petition is the statement given by the petitioner before the Police in Crime No.31 of 2015 of Thadiyittaparamba Police Station and Ext.P7 is the statement given by the said Angelo before the Police. 4. The Tribunal by Ext.P8 order dated 03.06.2019 rejected I.A. No.747 of 2018. Paragraph 5 of the said order reads thus; “5. Admittedly petitioner is the owner of the offending vehicle. He has also admitted that he handed over the vehicle to a third party for his personal use. The case of the petitioner is that the person to whom the vehicle was handed over has entrusted another to drive the vehicle. Even if the contention of the petitioner is true petitioner cannot evade **OP (MAC).No.68 of 2019 5** from his responsibility as petitioner parted with possession of the offending vehicle to third party knowing the consequences thereof. In my view proposed 6[th] respondent cannot be dragged in the present proceedings. The application is devoid of merit.” 5. Feeling aggrieved by Ext.P8 order, the petitioner is before this Court in this original petition, invoking the supervisory jurisdiction under Article 227 of the Constitution of India. 6. Heard the learned counsel for the petitioner and also the learned Standing Counsel appearing for the 5[th] respondent insurer. 7. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P8 order dated 03.06.2019 of Motor Accidents Claims Tribunal, Ernakulam in I.A.No.747 of 2018, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 8. I.A.No.747 of 2018 is one filed by the petitioner, invoking the provisions of Order I Rule 10(2), read with Section 151 of the Code of Civil Procedure, 1908 seeking an order to implead the 6[th] respondent herein as additional respondent in that claim petition. Such an application has been filed relying on Ext.P7 statement made by the said respondent before Police, wherein he **OP (MAC).No.68 of 2019 6** has stated that on the date of accident, the petitioner had entrusted him possession of motor cycle bearing Registration No. KL-40/J-3842 and it is he who had entrusted that vehicle to the 4[th] respondent, who was riding that motor cycle at the time of accident. 9. In the context of Clause (30) of Section 2 of the Motor Vehicles Act, the Apex Court in **Naveen Kumar v. Vijaykumar [(2018) 3 SCC 1]** , held that in view of the definition of the expression 'owner' in clause (30) of Section 2 of the Motor Vehicles Act, 1988, it is the person in whose name the motor vehicle stands registered, who, for the purpose of the said Act would be treated as the owner and that in a claim petition filed under Section 166 or under 163 A of the Motor Vehicles Act, the claimant is entitled to claim the compensation from the registered owner of the motor vehicle. 10. In **Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar [AIR 1963 SC 786]** , the Apex Court has drawn a distinction between necessary party and proper party and laid down the principle that, a necessary party is one without whom no order can be made effectively; a proper **OP (MAC).No.68 of 2019 7** party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceedings. 11. The averments made in the affidavit accompanying to I.A. No.747 of 2018 would not make out a case that the 6[th] respondent herein, who is sought to be impleaded as an additional respondent in O.P.(M.V) No.1889 of 2015, is either the registered registered owner or the de-facto owner of the offending motor cycle, on the date of accident. In such circumstances, the reasoning of the Tribunal in Ext.P8 cannot be termed as perverse or patently illegal, warranting an interference under Article 227 of the Constitution of India. In the result, this original petition fails and the same is accordingly dismissed. **Sd/-** **ANIL K.NARENDRAN JUDGE** sru **OP (MAC).No.68 of 2019 8** ## **APPENDIX** **PETITIONER'S EXHIBITS:** - **EXHIBIT P1** - **TRUE COPY OF THE ORIGINAL PETITION IN OP(MV) NO.1889 OF 2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM.** - **EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST RESPONDENT IN OP(MV) NO.1889/2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM.** - **EXHIBIT P3 TRUE COPY OF IMPLEADING PETITION, I.A.NO.747/2018 IN OP(MV) NO.1889/2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM.** - **EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT BY 6TH RESPONDENT IN I.A.NO.747/2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM.** - **EXHIBIT P5 TRUE COPY OF THE COUNTER AFFIDAVIT BY 5TH RESPONDENT IN I.A.NO.747/2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM.** - **EXHIBIT P6 TRUE COPY OF THE STATEMENT GIVEN BY MR.TOM LIYS JOY IN CRIME NO.31/2015 OF THADIYITTAPARAMBU POLICE STATION.** - **EXHIBIT P7 TRUE COPY OF THE STATEMENT GIVEN BY MR.ANJALO IN CRIME NO.31/2015 OF THADIYITTAPARAMBU POLICE STATION.** - **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 03.06.2019 IN I.A.NO.747/2018 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM.** **RESPONDENT'S EXHIBITS:NIL**