V.K. Sreedharan v. P.V. Jose, Suresh Sureshan K., Oriental Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 27TH DAY OF NOVEMBER 2020 / 6TH AGRAHAYANA, 1942** ## **MACA.No.1604 OF 2014(C)** **AGAINST THE AWARD IN OPMV 229/2011 DATED 22-05-2014 OF DISTRICT COURT & SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA** ## **APPELLANT/S:** **V.K.SREEDHARAN VIYOOR KULANGARA HOUSE, KOLLAM, QUILANDY, CALICUT.** **BY ADVS. SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI** ## **RESPONDENT/S:** **1 P.V.JOSE AGED 33 YEARS S/O. VARGHESE, PUNNKKATTIL HOUSE, POST VYTHIRI, NARAGHAKUNNU, WAYANAD DISTRICT. 2 SURESH SURESHAN K. AGED 32 YEARS S/O. KUPPANDY, VADAKKETHARA HOUSE, THAILAKKUNNU, VYTHIRI POST, WAYANAD DISTRICT. 3 ORIENTAL INSURANCE COMPANY LIMITED MAVOOR ROAD, KOZHIKODE, POLICY NO. 441003/31/2007/9194 R1 BY ADV. .. R1, R3 BY ADV. SRI.P.JACOB MATHEW R1-2 BY ADV. SRI.S.M.PRASANTH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26-11-2020, THE COURT ON 26-11-2020 DELIVERED THE FOLLOWING:** MACA.No.1604 OF 2014(C) **==> picture [18 x 7] intentionally omitted <==** ## **JUDGMENT** ## **Dated this the 26[th] day of November, 2020** The 3[rd] respondent in O.P.(M.V.) No.229 of 2011 of the Motor Accidents Claims Tribunal, Wayanad (in short Tribunal) is the appellant. The 1[st] respondent in the appeal was the claimant and respondents 2 and 3 were the respondents 1 and 2 in the claim petition. The parties are, for the sake of convenience, referred to as per their litigate status in the claim petition. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming a compensation of Rs.5,00,000/- on account of the injuries that he sustained in an alleged accident that took place on 19.11.2007. 3. The case of the petitioner, in brief, in the claim petition was that, on 19.11.2007, while he was crossing MACA.No.1604 OF 2014(C) **==> picture [17 x 9] intentionally omitted <==** the road on the National Highway – 212 at Vythiri, the auto rickshaw bearing Regn. No. KL-18/A-5771 (hereinafter referred to as "vehicle") driven and owned by the 1[st] respondent, in a rash and negligent manner, hit the petitioner and he sustained injuries. The petitioner was admitted and treated in a nearby hospital. The 2[nd] respondent was the insurer of the vehicle and the 3[rd] respondent was the insured. The respondents are jointly and severally liable to pay the compensation. 4. The 1[st] respondent filed a written statement, inter alia, contending that the claim petition was not maintainable. The accident did not occur due to the rash and negligent driving of the vehicle by the 1[st] respondent. The compensation claimed was exorbitant. The vehicle was insured with the 2[nd] respondent, who was liable to ― ― indemnify the 3[rd] respondent the insured the owner of the vehicle. MACA.No.1604 OF 2014(C) **==> picture [18 x 9] intentionally omitted <==** 5. The 2[nd] respondent filed a written statement, inter alia, admitting that the vehicle was insured with the 2[nd] respondent, but the vehicle was insured by V.K. Sreedharan (the 3[rd] respondent) at the time of accident, who was a necessary party to the proceeding. 6. The 3[rd] respondent filed a written statement, inter alia, contending that he was not the owner of the vehicle, at the time of the accident. The vehicle was sold by him to the 1[st] respondent on 10.10.2007. If at all the petitioner was entitled to compensation, it was only the respondents 1 and 2 who were liable to pay the same. 7. The petitioner produced and marked Exhibits A- 1 to A-7 (series) in evidence. The respondents produced and marked Exhibits B-1 to B-5 in evidence. The disability certificate issued by the District Medical Board, Mananthavadi was marked as Exhibit C-1. 8. After considering the pleadings and materials MACA.No.1604 OF 2014(C) **==> picture [17 x 8] intentionally omitted <==** on record, the Tribunal by the impugned award, allowed the claim petition, in part, by directing the respondents to pay the petitioner a compensation of Rs.80,434/- with interest at the rate of 9% per annum and costs. The 2[nd] respondent was directed to pay the compensation and recover the amount from the 3[rd] respondent, who in turn was given the liberty to realize the amount from the 1[st] respondent. 9. Aggrieved by the impugned award passed by the Tribunal, the 3[rd] respondent has preferred this appeal. 10. Heard the learned senior counsel appearing for the appellant, the learned counsel appearing for respondents 2 and 3. Although notice was served on the 1[st] respondent, there is no appearance for him. 11. The sole question that emerges for consideration in this appeal is whether the compensation awarded by the Tribunal is justifiable or not? MACA.No.1604 OF 2014(C) **==> picture [18 x 8] intentionally omitted <==** 12. The specific case of the petitioner in the claim petition was that he got injured in the accident on account of the rash and negligent driving of the vehicle ― by the 1st respondent. Accordingly, the 1[st] respondent ― nd the driver cum owner of the vehicle and the 2 respondent were impleaded as parties. Subsequently, on the 2[nd] respondent contending that the vehicle was owned and insured by the 3[rd] respondent, the 3[rd] respondent was also impleaded as an additional respondent. 13. Interestingly, after the evaluation of the pleadings, evidence and materials on record, particularly Exhibits A-1 and A-2, the Tribunal arrived at a finding on Issue No.1 that the accident was not caused due to the rash and negligent driving of the vehicle by the 1[st] respondent. Nevertheless, despite arriving at the said conclusion, the Tribunal by the impugned award based, on surmises and conjectures or rather on a misplaced MACA.No.1604 OF 2014(C) **==> picture [17 x 8] intentionally omitted <==** sympathy that the petitioner sustained injuries, mulct the liability on the respondents. In light of the emphatic finding of the Tribunal on Issue No: 1, that the 1[st] respondent was not rash and negligent in driving the vehicle and had not caused the accident, the Tribunal could not have by any stretch of imagination saddled the liability on the respondents. In view of the Tribunal's own finding on Issue No.1, I set aside the Tribunal's finding on Issue No.2. 14. Now, coming to Issue No:3 in the impugned award. The Tribunal after finding that the vehicle was not having a fitness certificate, has held that the insurance company was liable to indemnify the insured, as the petitioner was a third party. The Tribunal even after relying on Sections 66 and 56 of the Motor Vehicles Act, has rendered the said finding. The law on the point is no longer res-integra in light of categoric declaration by the MACA.No.1604 OF 2014(C) ..8.. Larger Bench of this Court in **Pareed Pillai Vs. Oriental Insurance Company Ltd** [(2018) 4 KLT 792 (LB)]. It is succinctly laid down in paragraph 17 of the decision that, when a transport vehicle does not possess a fitness certificate, it would be deemed to having no certificate of registration, as it is a fundamental breach. Consequently, the insurer would stand exonerated from indemnifying the insured. Thus, going by the materials on record and the law laid down in **Pareed Pillai, t** he Tribunal ought not to have directed the 2[nd] respondent to pay the compensation to the petitioner and recover the same from the 3[rd] respondent. Hence, the said finding is also erroneous and untenable, and is thus set aside. 15. The graver misappreciation of the evidence is the finding on Issue No:3, that no documentary evidence was put forth by the 3[rd] respondent to substantiate that he had transferred the vehicle to the 1[st] respondent. On a MACA.No.1604 OF 2014(C) **==> picture [18 x 9] intentionally omitted <==** perusal of Exhibit B-4, it is unambiguous that the vehicle was transferred by the 3[rd] respondent to the 1[st] respondent on 10.10.2007. Undisputedly, the accident occurred only on 19.11.2007, i.e., subsequent to the transfer of the vehicle. The appellant has produced Annexures A and B before this Court, to corroborate the endorsement on Exhibit B-4. 16. The learned counsel appearing for the 3[rd] ― ― respondent insurance company in the appeal submitted that the entire compensation was deposited and withdrawn by the petitioner from the Tribunal, which may be the reason that he has shown lack of interest in contesting the appeal. 17. Furthermore, the petitioner had not produced the final report, which would have prima – facie established the cause of the accident as laid down by the Division Benches of this Court in **New India Assurance** MACA.No.1604 OF 2014(C) ..10.. **Company Ltd. v. Pazhaniammal** [2011 (3) KLT 648] and **National Insurance Company Ltd. v. Ramla and others** [2016 (4) KHC 891]. The non-production of a vital document casts a cloud of suspicion in my mind as to the real cause of the accident. The Tribunal ought not to have allowed the claim petition on a bald assertion in the claim petition regarding the cause of accident, without the production of the final report. The cavil finding that as an accident had taken place the respondents are liable, is unsustainable in law and quite naive. In fact, adverse inference ought to have been drawn against the petitioner, especially after finding Issue No.1 against the petitioner. 18. The learned counsel for the 1[st] respondent submitted that the application for renewal of permit was submitted on time, therefore, it is to be deemed that the vehicle had a valid fitness certificate; which was also not MACA.No.1604 OF 2014(C) **==> picture [20 x 7] intentionally omitted <==** considered by the Tribunal. If that was the case, then the insurance company would become liable to pay the compensation. 19. On an overall re-appreciation of the facts and materials on record and the findings arrived at above, I am of firm opinion that the original petition is to be remitted back to the Tribunal for a fresh consideration, after affording all the parties a fresh opportunity to render additional evidence and being heard. In the result, this appeal is allowed by setting aside the award dated 22.05.2014 passed in O.P.(M.V.) No.229 of 2011. The original petition is remitted back to the Tribunal for fresh consideration. The Tribunal shall, after keeping in mind the findings in this judgment, afford all the parties an opportunity to adduce additional evidence, if they choose so, and being heard and decide the original petition in accordance with law. Considering the fact MACA.No.1604 OF 2014(C) **==> picture [22 x 7] intentionally omitted <==** that the original petition is of the year 2011, the Tribunal shall make every endeavour to dispose of the original petition as expeditiously as possible. The Tribunal shall also decide whether the amount deposited by the appellant before the Tribunal has to be refunded to him or not. The parties are directed to appear before the Tribunal on 18.01.2021. Service of notice on the counsel who were appearing for the respective parties before the Tribunal, would be deemed sufficient service of notice. **Sd/-** **C.S.DIAS JUDGE** kkj