Kerala High Court
Gopinathan vs Lalu on 25 August, 2021
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
Wednesday, the 25th day of August 2021 / 3rd Bhadra, 1943
UNNUMBERED I.A.NO. /2021 IN MACA NO. 1866 OF 2016
OP(M.V) 1311/2012 OF MOTOR ACCIDENTs CLAIMS TRIBUNAL, IRINJALAKUDA.
PETITIONERS/ADDITIONAL APPELLANTS -LEGAL HEIRS OF THE DECEASED APPELLANT
1.READHAMANI, AGED 65, W/O. LATE GOPINATHAN,VARIKKATTIL HOUSE,
MANNAMPETTAH DESOM, VARAKKARA POST,, THRISSUR DISTRICT, 680 302.
2. GIREESH, AGED 39, S/O. LATE GOPINATHAN, VARIKKATTIL HOUSE,
MANNAMPETTAH DESOM, VARAKKARA POST, THRISSUR DISTRICT, 680302.
3. GEETHA, AGED 37, D/O. LATE GOPINATHAN AND W/O. VINOD, PARVATHY
VILASOM, PONE VAZHY, NEAR SUPER GAS, AIMS POST, EDAPULLY, 682 041.
4. GINESH, S/O. LATE GOPINATHAN, VARIKKATTIL HOUSE, MANNAMPETTAH
DESOM, VARAKKARA POST, TRISSUR DISTRICT, 680 302.
RESPONDENTS/RESPONDENTS
1. LALU, S/O. MAPRANATHUKARAN LONAPPAN, VARAKKARA P.O., TRISSUR
DISTRICT 680 302.
2. LONAPPAN, S/O. MAPRANATHUKARAN OUSEP, VARAKKARA P.O., TRISSUR
DISTRICT - 680 302
3. THE MANAGER, UNITED INDIA INSURANCE COMPANY LTD., AMBALLUR - 680
301.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to implead the
petitioners here in as Additional appellants to the appeal as they being
the legal heirs of the deceased original appellant.
This application coming on for orders upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of SRI.T.N.MANOJ, Advocate for the applicant and of SRI.UNNI. K.K.
(EZHUMATTOOR), Advocate for the Respondent No.3, the Court passed the
following:
p.t.o
C.S DIAS,J.
---------------------------
Unnumbered I.A No. of 2021
in
MACA No.1866 of 2016
-----------------------------
Dated this the 25th August, 2021.
ORDER
The application is filed to implead the petitioners 1 to 4 as additional appellants in the appeal.
2. The petitioners have stated in the affidavit filed in support of the application that the original appellant expired on 30.06.2020 and they are his legal representatives who are entitled to succeed to his estate. Therefore, they may be impleaded as additional appellants 2 to 5.
3. The Registry has noted a defect stating that a separate application to set aside the abetment is also to be filed, as ninety days have lapsed after the death of the original appellant.
4. The learned Counsel for the appellant replied to the above defect by stating that, a combined reading of Section 169 of the Motor Vehicles Act, 1988 and Rule 395 of the Kerala Unnumbered I.A No. of 2021 in MACA No.1866 of 2016 2 Motor Vehicles Rules, 1989, makes it clear that the provisions of the Order XXII of the Code of Civil Procedure is not applicable in a proceeding under the Motor Vehicles Act, 1988, and there is no provision in the above Act or Rules, unlike in civil cases, whereby appeals and claims get abated, if the legal representatives are not brought on record within ninety days.
5. In the light of above reply by the learned Counsel for the appellant, the Registry has placed the matter before Court, to consider whether the application is to be numbered or not.
6. Heard; Sri.T.N.Manoj, the learned counsel for the petitioners.
7. Sri.T.N.Manoj reiterated the contentions written by him in the application. He also relied on the decision of this Court in Pathukutty M. and others v. Abdurahiman V.P. and others [2019 (10) KHC 760] and the decisions of the High Court of Punjab and Haryana in New Suraj Transport Co. and others v. Ruby General Ins.Co and others [1972 ACJ 416], the High Court of Madhya Pradesh Unnumbered I.A No. of 2021 in MACA No.1866 of 2016 3 in Chandrakant Soni v. Mukesh Sahu and others [1996 ACJ 575] and High Court of Bombay in New India Assurance Co.Ltd. v. Vishal Rameshwar Mote and others [2021 ACJ 225] to drive home his contention that, an appeal filed by an injured for enhancement of compensation does not abate on his death and can be prosecuted by his legal representatives.
8. After the matter was heard and reserved for orders, the Honourable Supreme Court on 16.08.2021 in Oriental Insurance Company Limited v. Kahlon @ Jasmail Singh Kahlon [Civil Appeal No.4800 of 2021], in a case of similar nature, has held as follows:
"9. The Act is a beneficial and welfare legislation. Section 166 (1) (a) of the Act provides for a statutory claim for compensation arising out of an accident by the person who has sustained the injury. Under Clause (b), compensation is payable to the owner of the property. In case of death, the legal representatives of the deceased can pursue the claim. Property, under the Act, will have a much wider connotation than the conventional definition. If the legal heirs of the deceased can pursue claims in the case of death, we see no reason why the legal representatives cannot pursue claims for loss of property akin to estate of the inured if he is deceased subsequently for reasons other than attributable to the accident or injuries under Clause 1
(c) of Section 166. Such a claim would be completely distinct from personal injuries to the claimant and which may not be cause of death. Such claims of personal injuries would undoubtedly abate with the death of the injured. What would the loss of estate mean and what items would be covered by Unnumbered I.A No. of 2021 in MACA No.1866 of 2016 4 it are issue which has to engage our attention. The appellant has a statutory obligation to pay compensation in motor accident claim cases. This obligation cannot be evaded behind the defence that it was available only for personal injuries and abates on his death irrespective of the loss caused to the estate of the deceased because of the injuries."
9. In the light of the categoric declaration of law in Kahlon @ Jasmail Singh Kahlon (supra) and also taking note of the fact that Order XXII of the Code of Civil Procedure is specifically excluded from Rule 395 of the Kerala Motor Vehicles Rules, 1989, I overrule the objection raised by the Registry. I hold that there is no necessity to file an application to set aside abetment along with the application to implead the legal representatives of the original appellant. The Registry is directed to number the application and post the same for consideration along with the appeal on 27.08.2021.
ma/25.08.2021 Sd/- C.S.DIAS, JUDGE
/True copy/
25-08-2021 /True Copy/ Assistant Registrar