Kerala High Court
Salahudeen vs Devadas(Died) on 9 April, 2021
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
MACA.No.1392 OF 2012
AGAINST THE AWARD IN OPMV 1824/2004 DATED 12-06-2012 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL ,ATTINGAL
APPELLANT/APPLICANT:
SALAHUDEEN
S/O.ISMAIL,PALACHIRA.P.O,VARKALA,CHERINNIYOOR
VILLAGE,THIRUVANANTHAPURAM DISTRICT.
BY ADVS.
SRI.LALJI P.THOMAS
SRI.LALJI P.THOMAS
RESPONDENTS/RESPONDENTS:
1 DEVADAS(DIED)
S/O.KUNJURAMAN,BEENA NIVAS,MELVETTOOR.P.O,VARKALA.
2 BHADRAN
S/O.BAHULEYAN,ASWATHI BHAVAN,MELVATTOOR,VARAKALA,
PIN-695141.
3 THE BRANCH MANAGER
M/S.NEW INDIA ASSURANCE COMPANY LIMITED,NEAR
MUNICIPAL BUS STAND,MAIN ROAD,ATTINGAL-695101.
4 P.RATNAKUMAR (DIED)
S/O PURUSHOTHAMAN,ASHA BHAVAN,PALACHIRA,VARKALA.
5 SURESH BABU
S/O.DINESH BABU,KATTUVILAKATHU VEEDU,AYANTHI,VARKALA-
PIN-695141.
6 VIMALAVATHY
W/O.DEVADAS,BEENA NIVAS,MELVETTOOR.P.O,VARKALA,
PIN-695312.
7 BEENA
D/O.DEVADAS,BEENA NIVAS,MELVETTOOR.P.O,VARAKALA,
PIN-695312.
M.A.C.A.No. 1392 of 2012, Cross Objection No.66/2012 &
O.P.(MAC) No.3263/2013
2
8 BINI
D/O.DEVADAS,BEENA NIVAS,MELVETTOOR.P.O,
VARKALA,PIN-695312.
9 BAIJU
S/O.DEVADAS,BEENA NIVAS,MELVETTOOR.P.O,
VARKALA,PIN-695312.
10 LATHIKA DEVI
W/O.RATNAKUMAR,ASHA BHAVAN,PALACHIRA,
VARKALA,PIN-695143.
11 ASHA
D/O.RATNAKUMAR,ASHA BHAVAN,PALACHIRA,
VARKALA,PIN-695143.
12 ANU
D/O.RATNAKUMAR,ASHA BHAVAN,PALACHIRA,VARKALA,PIN-
695143.
13 SULOCHANA
M/O.RATNAKUMAR,ASHA BHAVAN,PALACHIRA,
VARKALA,PIN-695143.
R1 BY ADV. SRI.N.DHARMADAN SR.
R1, R3 BY ADV. SRI.LAL K.JOSEPH
R1 BY ADV. SMT.D.P.RENU
R1 BY ADV. SRI.KKM.SHERIF
R1 BY ADV. SRI.A.A.ZIYAD RAHMAN
R1, R10 BY ADV. SRI.N.DHARMADAN (SR.)
OTHER PRESENT:
SRI.LAL.K.JOSEPH, SC, SMT.D.P.RENU FOR R2
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
09-04-2021, ALONG WITH CO.66/2012, OP (MAC).3263/2013(O), THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.No. 1392 of 2012, Cross Objection No.66/2012 &
O.P.(MAC) No.3263/2013
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
CO.No.66 OF 2012 IN MACA. 1392/2012
AGAINST THE ORDER/JUDGMENT IN O.P.(MV) NO. 1824/2004 OF THE MOTOR
ACCIDENTS CLAIMS TRIBUNAL, ATTRINGAL
APPELLANTS-RESPONDENTS 10 T0 13.:
1 LATHIKA DEVI
W/O.RATNAKUMAR,ASHA BHAVAN,PALACHIRA,
VARKALA, PIN-695143.
2 ASHA
D/O.RATNAKUMAR,ASHA BHAVAN,PALACHIRA,VARKALA,
PIN-695143.
3 ANU
D/O.RATNAKUMAR,ASHA BHAVAN,PALACHIRA,VARKALA,
PIN-695143.
4 SULOCHANA
M/O.RATNAKUMAR,ASHA BHAVAN,PALACHIRA,VARKALA,
PIN-695143.
BY ADVS.
SRI.N.DHARMADAN (SR.)
SMT.D.P.RENU
RESPONDENTS-APPELLANT & RESPONDENTS 1 TO 9:
1 SALAHUDEEN
S/O.ISMAIL, UAZHAVILA VEEDU,
PALACHIRA.P.O,VARKALA,CHERINNIYOOR
VILLAGE,THIRUVANANTHAPURAM DISTRICT. 695 141.
2 DEVADAS DIED
S/O.KUNJURAMAN,BEENA NIVAS,MELVETTOOR.P.O,
VARKALA. PIN- 695 141.
M.A.C.A.No. 1392 of 2012, Cross Objection No.66/2012 &
O.P.(MAC) No.3263/2013
4
3 BHADRAN
S/O.BAHULEYAN,ASWATHI BHAVAN,MELVATTOOR,VARAKALA,
PIN-695141.
4 THE BRANCH MANAGER
M/S.NEW INDIA ASSURANCE COMPANY LIMITED,NEAR
MUNICIPAL BUS STAND,MAIN ROAD,ATTINGAL-695101.
5 P.RATNAKUMAR DIED
S/O PURUSHOTHAMAN,ASHA BHAVAN,PALACHIRA, VARKALA.
PIN- 695 141.
6 SURESH BABU
S/O.DINESH BABU,KATTUVILAKATHU VEEDU,AYANTHI,
VARKALA-695312.
7 VIMALAVATHY
W/O.DEVADAS,BEENA NIVAS,MELVETTOOR.P.O,VARKALA, PIN-
695312.
8 BEENA
D/O.DEVADAS,BEENA NIVAS,MELVETTOOR.P.O,VARAKALA, PIN-
695312.
9 BINI
D/O.DEVADAS,BEENA NIVAS,MELVETTOOR.P.O,VARKALA, PIN-
695312.
10 BAIJU
S/O.DEVADAS,BEENA NIVAS,MELVETTOOR.P.O,VARKALA, PIN-
695312.
THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON
09-04-2021, ALONG WITH MACA.1392/2012, OP (MAC).3263/2013(O), THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.No. 1392 of 2012, Cross Objection No.66/2012 &
O.P.(MAC) No.3263/2013
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
OP (MAC).No.3263 OF 2013(O)
AGAINST THE ORDER/JUDGMENT IN OPMV 691/2004 DATED 16-06-2012 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL ,ATTINGAL
PETITIONER/:
LATHIKA DEVI
W/O LATE RATNAKUMAR, ASHA BHAVAN, PALACHIRA, VARKALA
BY ADVS.
SRI.N.DHARMADAN (SR.)
SMT.D.P.RENU
RESPONDENTS:
1 SALAHUDEEN
S/O ISMAIL, UAZHAVILA VEEDU, PALACHIRA P.O, VARKALA,
CHERINNIYOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT
PIN-695143
2 BHADRAN
S/O BAHULEYAN, ASWATHI BHAVAN, MELVATOOR, VARKALA
PIN-695312
3 SURESH BABU
S/O DINESH BABU, KATTUVILAKATHU VEEDU, AYANTHI
VARKALA PIN-695314
4 VIMALAVATHY
W/O DEVADAS, BEENA NIVAS, MELVETTOOR P.O, VARKALA,
PIN-695312
5 BEENA
D/O DEVADAS, BEENA NIVAS, MELVETTOR P.O, VARKALA,
PIN-695312
M.A.C.A.No. 1392 of 2012, Cross Objection No.66/2012 &
O.P.(MAC) No.3263/2013
6
6 BINI
D/O DEVADAS, BEENA NIVAS, MELVETTOR P.O, VARKALA,
PIN-695312
7 BAIJU
S/O DEVADAS, BEENA NIVAS, MELVETTOR P.O, VARKALA,
PIN-695312
8 THE BRANCH MANAGER
M/S NEW INDIA ASSURANCE COMPANY, NEAR MUNICIPAL BUS
STRAND, MAIN ROAD, ATTINGAL, PIN-695101
R1 BY ADV. SRI.LAL K.JOSEPH
R1 BY ADV. SRI.A.K.MOHAMED ALI
R1 BY ADV. SRI.KKM.SHERIF
R1 BY ADV. SRI.A.A.ZIYAD RAHMAN
THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 09-04-2021, ALONG
WITH CO.66/2012, MACA.1392/2012, THE COURT ON THE DAME DAY
DELIVERED THE FOLLOWING:
M.A.C.A.No. 1392 of 2012, Cross Objection No.66/2012 &
O.P.(MAC) No.3263/2013
7
P.V.KUNHIKRISHNAN, J
--------------------------------
M.A.C.A.No. 1392 of 2012,
Cross Objection No.66/2012 &
O.P.(MAC) No.3263/2013
-------------------------------
Dated this the 9th day of April, 2021
JUDGMENT
All these cases are connected and therefore, I am disposing these cases by a common judgment.
M.A.C.A.No.1392/2012 is filed by the petitioner in O.P.(MV) No. 1824/04 on the file of the Motor Accidents Claims Tribunal, Attingal. The legal heirs of fourth respondent before the Tribunal filed Cross Objection No.66/2012. O.P.(MAC) No.3263/2013 is filed by the first petitioner in Cross Objection No. 66/2012 challenging Ext.P1 order passed by the Tribunal. (Hereinafter, the parties are mentioned in accordance to their M.A.C.A.No. 1392 of 2012, Cross Objection No.66/2012 & O.P.(MAC) No.3263/2013 8 rank before the Tribunal in O.P.(MV) No.1824/2004).
2. The case of the petitioner is like this: He is a person aged 75 years. He was a pedestrian walking through Kallambalam-Varkala public road, and when he reached a place Orukkini petrol pump, Palachira, a motorcycle bearing registration No. KL-01/S-3489 ridden by the second respondent with excessive speed and in a rash and negligent manner hit against another motorcycle bearing registration No. KL-01/N- 9921 ridden by the fifth respondent resulting in the death of the fourth respondent, pillion rider of the motorcycle bearing registration No. KL-01/N-9921. It is the further case of the petitioner that, the motorcycle bearing registration No.KL- 01/N-9921 after being hit by the other motor cycle bearing registration No.KL-01/S-3489 hit against the petitioner- claimant by its handle bar resulting the petitioner claimant being thrown off, sustaining grievous bodily injuries, including fracture of both bones of his right leg below the knee. The first respondent (Devadas) is the registered owner of the M.A.C.A.No. 1392 of 2012, Cross Objection No.66/2012 & O.P.(MAC) No.3263/2013 9 motorcycle bearing registration No. KL-01/S-3489 and he died during the pendency of the petition. Hence, his widow and children were impleaded as additional respondents Nos.6 to
9. The fourth respondent, the registered owner of the motorcycle bearing registration No. KL-01/N-9921 died on 12.2.2004 and his widow, mother and two children were impleaded as additional respondents Nos.10 to 13 before the Tribunal.
3. The third respondent insurance company resisted the claim petition invoking Section 170 of the Motor Vehicles Act. According to the third respondent, the petitioner/claimant has no cause of action against the third respondent insurance company in as much as the motorcycle bearing registration No.KL-01/S-3489 is not involved in the accident. One Ratnakumar (R4) who was riding the motorcycle bearing registration No. KL-01/N-9921 along the Kallambalam-Varkala public road knocked down him causing grievous bodily injuries to him. No other vehicle is involved in the accident and the M.A.C.A.No. 1392 of 2012, Cross Objection No.66/2012 & O.P.(MAC) No.3263/2013 10 petitioner/claimant colluded with the relatives of the deceased Ratnakumar had concocted a false case influencing the police with malafide intention to extract money from the third respondent. This is the sum and substance of the contention of the third respondent.
4. According to the third respondent, the claim petition was filed by the petitioner at the instance of respondent Nos. 1 and 2 who also colluded with the police. The deceased Ratnakumar was not having an effective and valid driving licence to ride the motorcycle bearing registration No. KL-01/N- 9921 and the fifth respondent Sureshbabu is none other than a close relative of Ratnakumar and he has been arrayed as one of the respondent to sustain a false case against third respondent Insurance company and the above Sureshbabu can be seen to have sustained no injury in the accident. It is also contended that there is no statement in the FIR suggesting the involvement of any vehicle other than motorcycle bearing registration No. KL-01/N-9921. Other contentions are also M.A.C.A.No. 1392 of 2012, Cross Objection No.66/2012 & O.P.(MAC) No.3263/2013 11 raised by the third respondent.
5. To substantiate the case, Exts.A1 to A18 were marked. Exts.B1 to B21 were marked on the side of the respondents. One witness was examined on the side of the respondents also. After going through the evidence and documents, the Tribunal found that the case of the petitioner- claimant is without any merit and therefore the claim petition itself was dismissed. Aggrieved by the same, M.A.C.A.No.1392/2012 is filed by the petitioner.
6. Respondents Nos.10 to 13 who are the legal heirs of deceased fourth respondent (Ratnakumar) filed Cross Objection No.66/2012 in the above appeal. They filed a separate claim petition claiming compensation as O.P.(MV) No.691/04 before the claims Tribunal. The above claim petition was not proceeded by the Tribunal because of the impugned order in this appeal. Therefore, the respondent No.10 in O.P. (MV) No.1824/2004 filed a separate O.P.(MAC) No.3263/2013 against the order dated 16.6.2012 in O.P.(MV) No.691/2004 of M.A.C.A.No. 1392 of 2012, Cross Objection No.66/2012 & O.P.(MAC) No.3263/2013 12 the Motor Accidents Claims Tribunal, Attingal by which the Tribunal refused to proceed with the claim petition in the light of the award dated 12.6.2012 in O.P.(MV) No.1824/2004.
7. Heard the counsel for the petitioner/appellant and the counsel for the respondents.
8. The counsel for the petitioners argued the case in detail on merit and submitted that the order passed by the Tribunal dismissing the claim petition is illegal. The counsel for the third respondent submitted that it is a false case filed by the petitioner before the Tribunal to grab compensation from the Insurance company. The counsel submitted that the other private respondents in the claim petition are close relatives of the petitioner. The counsel for the respondents Nos.10 to 13 submitted that the Tribunal ought to have consider O.P.(MV) No.1824/2004 along with O.P.(MV) No.691/2004.
9. It is an admitted fact that O.P.(MV) No.1824/04 and O.P.(MV) No.691/04 are connected and the accident referred in both the claim petitions are one and the same. The Tribunal M.A.C.A.No. 1392 of 2012, Cross Objection No.66/2012 & O.P.(MAC) No.3263/2013 13 disposed O.P.(MV) No.1824/2004 mainly because there is a direction from this Court to dispose that claim petition. The finding of the Tribunal in the impugned Award is extracted hereunder:
"6. Point No.1:- Septuagenarian petitioner- claimant has filed the claim petition on hand as early as in the year 2004 and having not been able to have the petition disposed of for a period of more than 7 years, the petitioner-claimant was anxious to have the claim petition disposed of as early as possible; indeed as part of his attempt to have the claim petition disposed of as early as possible is seen to have filed I.A.3246/2011 before the Tribunal praying for expeditious disposal of the petition by the Tribunal. The petitioner-claimant on one hand moved I.A.3246/2011 before the Tribunal and on the other he is seen to have moved a writ Petition O.P. (M.A.C.)No.4335/2011(O) before the Hon'ble High Court praying for an order directing the Tribunal to consider the claim petition filed by him for a time bound disposal. It is seen that the Hon'ble High Court passed 3 orders prescribing a time limit for disposal of the claim petition and extending the time, whereof the claim petition (O.P. (M.V.)1824/2004) filed by the petitioner-claimant is now to be disposed of by the Tribunal in compliance with the orders of the Hon'ble High Court within two months from 2.4.2012. It would have been much easier to dispose of the claim petition filed by the petitioner-claimant indeed earlier than the date prescribed by the Hon'ble High Court, but the subject matter of the claim petition (O.P. (M.V.)1824/2004) became rather procedurally complicated, because another claim petition, O.P. (M.V.)691/2004 was proposed to be tried with the claim petition filed by the petitioner-claimant, indeed my learned predecessor having ordered joint trial of the two claim petitions, O.P.(M.V.)691/2004 and O.P. (M.V.)1824/2004 vide order in I.A.2417/2008 dated M.A.C.A.No. 1392 of 2012, Cross Objection No.66/2012 & O.P.(MAC) No.3263/2013 14 7.8.2004. The Tribunal found that the subject-matters of the two petitions, O.P.(M.V.)691/2004 and O.P. (M.V.)1824/2004 although were cited to have arisen out of one and the same accident, yet the two petitions were found capable of being tried separately without prejudicing the interest of either of the two parties in the above two claim petition, indeed complying with the order of the Hon'ble High Court O.P. (M.A.C.)No.4335/2011(O) dated 27.4.2012, whereof the Tribunal has been directed to dispose of the claim petition on hand O.P.(M.V.)1824/2004 within two months from 2.4.2012. The Tribunal indeed to give an expeditious disposal to O.P.(M.V.)1824/2004 compliance with the order of the Hon'ble High Court dated 6.1.2012 and 6.4.2012, split up the joint trial of the two claim petitions, O.P.(M.V.)691/2004 and O.P.(M.V.)1824/2004 passing a speaking order reviewing the earlier order in I.A.2417/2008 dated 16.04.2012, affording an opportunity to both parties to appeal against the order if they were aggrieved at the order of the Tribunal splitting up joint trial of the two claim petitions, O.P. (M.V.)691/2004 and O.P.(M.V.)1824/2004. However, neither side is seen to have appealed against the order reviewing the earlier order in I.A.2417/2008 dated 7.8.2008, whereof the joint trial ordered by my learned predecessor was reviewed splitting up the trial of the two claim petitions so as to enable the Tribunal to dispose of O.P.(M.V.)1824/2004 filed by the petitioner-claimant, rather in a time bound manner as directed by the Hon'ble High Court. It was only after assuring itself, that, neither of the parties were insistent to have the two claim petitions O.P.(M.V.)691/2004 and O.P.(M.V.)1824/2004 jointly tried that the Tribunal proceeded with separate trial of O.P.(M.V.)1824/2004 filed by the petitioner- claimant."
10. I cannot agree with the above finding of the Tribunal that simply because there is a direction from this Court, the M.A.C.A.No. 1392 of 2012, Cross Objection No.66/2012 & O.P.(MAC) No.3263/2013 15 Tribunal ought to have considered that claim petition alone without considering the other connected claim petition which arise out of the same accident. Therefore, According to me, the impugned award can be set aside without going into the merit of the case. There can be a direction to the Tribunal to consider O.P.(MV)No.1824/04 along with O.P.(MV) No.691/2004 and dispose both the claim petitions as expeditiously as possible. I make it clear that, I have not considered the case on merit. The Tribunal is free to decide the matter untrammeled by any observation in this judgment. I am setting aside the impugned award only for the reason that the connected claim petition is pending before the Tribunal. In the light of the above order, O.P.(MAC) No.3263/2013 became infructuous because the impugned order in this case will not stand in the light of the judgment in the appeal. Therefore, these cases are disposed of in the following manner:
(i) M.A.C.A.No.1392/2012 and Cross Objection No.66/2012 are allowed. The award dated 12.6.2012 in O.P. M.A.C.A.No. 1392 of 2012, Cross Objection No.66/2012 & O.P.(MAC) No.3263/2013 16 (MV) No.1824/2004 on the file of the Motor Accidents Claims Tribunal, Attingal is set aside and the Tribunal is directed to restore the above claim petition.
(ii) O.P.(MAC)No.3263/2013 is dismissed as infructuous in the light of the judgment in M.A.C.A. No.1392/2012. Ext.P1 order will not stand in the light of the judgment in the appeal.
(iii) The parties will appear before the Tribunal on 17.5.2021. The Tribunal will dispose the claim petitions as expeditiously as possible, at any rate within a period of four months from the date of receipt of a copy of this judgment.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE al/-+.
M.A.C.A.No. 1392 of 2012, Cross Objection No.66/2012 & O.P.(MAC) No.3263/2013 17 APPENDIX OF OP (MAC) 3263/2013 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER IN OP(MV) 691/200 DATED 16-06-2013 OF THE MACT ATTINGAL EXHIBIT P2 TRUE COPY OF THE AWARD IN IP(MV) 1824/2004 DATED 12-06-2012 OF THE MACT ATTINGAL EXHIBIT P3 TRUE COPY OF THE CROSS OBJECTION NO 66/2012 FILED BY THE PETITIONER 03-09-2012 BEFORE THIS HONOURABLE COURT RESPONDENTS EXHIBITS : NIL TRUE COPY P.S TO JUDGE AL/-