IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2137 of 2005(Y)
1. NATIONAL INSURANCE COMPANY LIMITED,
... Petitioner
Vs
1. K.J.SANTHOSH KUMAR, S/O.K.J.JOSEPH,
... Respondent
For Petitioner :SRI.MATHEWS JACOB (SR.)
For Respondent :SRI.VIVEK VARGHESE P.J.
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :22/10/2009
O R D E R
P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ.
...............................................................................
M.A.C.A.Nos. 2137 OF 2005
&
1791 OF 2006
.........................................................................
Dated this the 22nd October, 2009
J U D G M E N T
Ramachandra Menon, J:
A Scooter and a Maruti car collided with each other
on 10.04.1997 at about 1.00 a.m in the night on the Edappally-
Aluva National Highway, causing serious injuries to the rider as
well as the pillion rider of the Scooter, which led to separate
claim petitions. In both the claim petitions (O.P.(MV)Nos. 3080
of 1997 and 560 of 2000), negligence was attributed on the
driver of the car, seeking compensation from the owner, driver
and insurer of the car. In the Claim Petition filed by the rider of
the scooter, owner as well as the insurer of the scooter were
brought in as the additional respondents 3 and 4 respectively,
though the pleadings remained to be the same.
2. The claimants in both the cases were examined as P.W1
M.A.C.A.Nos. 2137 OF 2005 &
1791 OF 2006
2
and P.W.2 and Exts. A1 to A19 were marked on the side of the
claimants, while Exts. B1 to B3 were marked on the part of the
Insurer of the car. The contention raised by the Insurance
Company was that the said Company had issued a policy in
respect of the car which was a valid one as on the date of the
accident; but the negligence attributed on the driver of the car
was not correct, asserting that the accident was only because of
the negligence of the rider of the Scooter. On conclusion of the
trial, the Tribunal arrived at a clear finding that the accident was
only because of the negligence on the part of the rider of the
scooter i.e., the claimant in O.P.(MV) 562 of 2000. Accordingly,
the claim preferred by the rider against the parties of the car
was held as not sustainable and the same was dismissed.
3. However, coming to the Claim Petition preferred by the
pillion rider, after fixing total compensation payable as
Rs1,71,500/- with interest at the rate of 7.5%, the liability was
fastened on the shoulders of the Insurance Company, observing
in paragraph No.10 of the Award that even though the Insurer
M.A.C.A.Nos. 2137 OF 2005 &
1791 OF 2006
3
of the Scooter was not separately impleaded by the
claimant/pillion rider, since the Insurer was one and the same
(being National Insurance Company Ltd.), it was held that as
joint trial was being held, non-impleadment of the owner and
insurer of the offending scooter in O.P.(MV) No.3080 of 1997 was
not crucial. The said finding is subjected to challenge in
M.A.C.A.No. 2137 of 2005, preferred by the Insurer of the car,
whereas the other appeal has been preferred by the claimant in
O.P.(MV). 3080 of 1997,i.e, the pillion rider, seeking for
enhancement of the compensation.
4. The learned Sr. Counsel appearing for the Insurance
Company submits that the reasoning given by the Tribunal is not
at all correct or palatable under any circumstance; for the
obvious reason that the Appellant Insurer did not get any
opportunity to have disputed the facts and figures, with regard
to the coverage of the Scooter; particularly for the reason that it
was never made a party to the proceedings in O.P(MV) 3080 of
1997, whereas the Company was arrayed only in the capacity as
M.A.C.A.Nos. 2137 OF 2005 &
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4
Insurer of the car. In view of the finding rendered by the
Tribunal that the driver of the car was not negligent, the
Insurance Company cannot be directed to have satisfied the
award, it is submitted.
5. The learned Counsel appearing for the appellant in
M.A.C.A. No.1791 of 2006 (claimant/pillion rider) seeks to
sustain the finding of the Tribunal, stating that since the Insurer
of both the vehicles was the very same Company and since
joint trial was admittedly ordered in both the cases, no prejudice
has been caused to the said Company. However, we find that the
Insurer of both the vehicles, though is one and the same
Company, the concerned policies are stated as issued from
different branches. Since there was absolutely no case as to the
negligence of the rider of the scooter involved in the accident, no
opportunity was actually provided to have disputed the factual
position, which was essential, to have fixed the liability upon the
owner of the scooter and in turn to have it shifted to its insurer.
This being the position, the finding arrived at by the Tribunal,
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5
that non-impleadment of the owner and insurer in O.P.(MV)
No.3080 of 1997 was not crucial, does not appear to be correct
or sustainable and hence the same is hereby set aside.
6. However, in view of the undisputed facts and figures,
with regard to the occurrence of the accident and also as to the
extent of injuries and eligibility for compensation, the same has
been found in favour of the claimant by the Tribunal. We find it
only fit and proper to have the matter re-considered by the
Tribunal with opportunity to the parties concerned to mould
their pleadings and adduce evidence. The learned Sr. Counsel for
the appellant/Insurance Company in M.A.C.A. No. 2137 of 2005
submits that even though the said Company had issued a policy
in respect of the scooter earlier, the same had expired and no
further policy was issue/renewed. In any view of the matter,
this aspect has to be considered by the Tribunal at the first
instance, on the basis of the relative pleadings and evidence to
be raised/adduced.
M.A.C.A.Nos. 2137 OF 2005 &
1791 OF 2006
6
7. In the above circumstances, we remit the matter to the
Tribunal for fresh consideration with regard to the liability, if at
all any on the part of the owner and insurer of the scooter. In
order to facilitate the same, the first respondent in M.A.C.A.No.
2137 of 2005, who is the appellant in M.A.C.A.No.1791 of 2006
and claimant in O.P.(MV)No.3080 of 1997 is permitted to implead
the concerned parties in the party array and also with liberty to
have the pleadings amended, if so desired. On impleading, the
Tribunal shall issue notice to the particular Branch of the
Insurance Company, who is stated as the Insurer of the Scooter
and the Insurance Company will be entitled to rebut the
pleadings by filing appropriate written statement . Both the sides
will be at liberty to adduce evidence to substantiate their
pleadings, based on which, the matter shall be considered and
disposed of by the Tribunal as expeditiously as possible, at any
rate within three months from the date of receipt of a copy of the
judgment. Since the issue is more than one decade old, we
direct the parties already on record to appear before the Tribunal
M.A.C.A.Nos. 2137 OF 2005 &
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7
on 23.11.2009. It is also made clear that since the claimant in
O.P. (MV) 3080 of 1997 did not choose to implead the owner and
Insurer of the scooter, before the Tribunal, at any point of time,
the claimant will not be entitled to get interest , if at all, any
compensation is awarded by the Tribunal, fixing liability on the
the Insurer of the scooter, based on the pleadings and evidence
to be adduced. It will be open to the Insurer of the car to
withdraw the amount in deposit.
The Appeals are disposed of as above.
P.R. RAMAN,
JUDGE.
P.R. RAMACHANDRA MENON,
JUDGE.
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