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2019 DIGILAW 851 (KER)

Shaji @ Shaji v. D. VS Arjun R. , S/o. Rajan V.

2019-10-23

ANIL K.NARENDRAN

body2019
ORDER : F.No.47696 of 2019:- The appellant is the claimant in O.P.(MV)No.1052 of 2015 on the file of the Motor Accidents Claims Tribunal, Kottayam, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained in a motor accident, which occurred on 11.05.2015, involving a motorcycle bearing registration No.KL-04/AG-6474, owned and ridden by the 1st respondent and insured with the 2nd respondent, while he was walking on the side of Pala - Ettumanoor Road. At the place of accident, the appellant was knocked down by the motorcycle ridden by the 1st respondent, as a result of which he sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of the motorcycle by the pt respondent rider, claim petition was filed before the Tribunal, claiming a total compensation of Rs. 5,00,000/ - under various heads. 2. In O.P.(MV)No.1052 of 2015, the Tribunal passed an award dated 08.07.2019, awarding a total compensation of Rs.2,38,880/-, together with interest at the rate of 8.5% per annum from the date of petition, i.e., 08.07.2019 tilt realisation, with proportionate cost. 3. Dissatisfied with the quantum of compensation, the appellant is before this Court in this appeal filed under Section 173 of the Motor Vehicles Act. The description of the appellant and the respondents in the cause title of the memorandum of appeal is as follows; Appellant/petitioner: - Shaji @ Shaji V.D., Vattakattu House, Kurumulloor P.O., Kanakkary, Kottayam. Respondents/Respondents: - 1. Arjun R., S/o. Rajan V., Chennisheriveliyil House, North Aryad P.O., Alappuzha Pin-688 542. 2. The New India Assurance Company Ltd., Kottayam, Pin-686 001. 4. The defects noted by the Registry are (1) Pin code is handwritten, (2) Insurance Company not represented; and (3) Copy not served. After serving a copy of the memorandum of appeal to the learned Standing Counsel for the 3rd respondent Insurance Company, the learned counsel for the appellant answered defects (1) and (2) as follows; There is no rule stipulating that the pin code cannot be handwritten. The description of the 3rd respondent is as shown in the impugned award. 5. In exercise of the powers conferred under Section 133 of the Motor Vehicles Act, 1939, the Government of Kerala made the Kerala Motor Accidents Claims Tribunal Rules, 1977. The description of the 3rd respondent is as shown in the impugned award. 5. In exercise of the powers conferred under Section 133 of the Motor Vehicles Act, 1939, the Government of Kerala made the Kerala Motor Accidents Claims Tribunal Rules, 1977. In view of the provisions under clause (a) of sub-section (2) of Section 217 of the Motor Vehicles Act, 1988, notwithstanding the repeal of the Motor Vehicles Act, 1939 by sub-section (1) of Section 217, the Kerala Motor Accidents Claims Tribunal Rules made under the repealed enactment, and in force immediately before the commencement of the Act of 1988 shall, so far as it is not inconsistent with the provisions of the said Act, be deemed to have been made under the corresponding provision of the Act of 1988. 6. Rule 3 of the Kerala Motor Accidents Claims Tribunal Rules deals with application for compensation. As per sub-rule (1) of Rule 3, every application for payment of compensation shall be made in the form appended to the said rules and shall be accompanied by the fee prescribed therefor in sub-rule (1) of Rule 23. As per sub-rule (2) of Rule 3, any application which is found defective on scrutiny may be returned by the Tribunal for being submitted after curing the defect, within a specified time limit not exceeding two weeks. 7. Rule 6 of the Kerala Motor Accidents Claims Tribunal Rules deals with notice to parties involved. As per sub-rule (1) of Rule 6, if the application is not dismissed under Rule 5 [which deals with summary dismissal of application], the Claims Tribunal shall send to the owner of the Motor Vehicle involved in the accident, the insurer and its driver a copy of the application together with a notice of the date on which it will hear the application and may call upon the parties to produce on that date any evidence which they may wish to tender. As per sub-rule (2) of Rule 6, if the insurer is not impleaded as a party to the application as originally filed, or if the name of the insurer is not correctly given therein, it shall be open to the applicant to make an application to the Tribunal for the appropriate amendment to the application for the purpose of bringing the insurer on record. 8. 8. As per the ‘form of application for compensation' prescribed in the Kerala Motor Accidents Claims Tribunal Rules, the application for compensation shall contain necessary particulars in respect of the deceased/injured, the vehicle involved in the accident, etc., as enumerated in clauses (1) to (28), which includes the name and address of the person injured/deceased and also the name and address of the owner of the vehicle; the insurer of the vehicle; the driver of the vehicle; and the applicant. 9. Rule 10 of the Kerala Motor Accidents Claims Tribunal Rules deals with appearance of legal practitioner. As per Rule 10, any party may appear in person or through a legal practitioner before the Claims Tribunal. 10. Section 146 of the Motor Vehicles Act, 1988 deals with necessity for insurance against third party risk. As per sub-section (1) of Section 146, no person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person Of that other person, as the case may be, a policy of insurance complying with the requirements of Chapter XI. 11. Section 158 of the Motor Vehicles Act deals with production of certain certificates, licence and permit in certain cases. As per sub-section (1) of Section 158, any person driving a motor vehicle in any public place shall, on being so required by a police officer in uniform authorised in this behalf by the State Government, produce the documents enumerated in clauses (a) to (d), relating to the use of the vehicle. As per sub-section (1) of Section 158, any person driving a motor vehicle in any public place shall, on being so required by a police officer in uniform authorised in this behalf by the State Government, produce the documents enumerated in clauses (a) to (d), relating to the use of the vehicle. As per sub-section (6) of Section 158, substituted by the Motor Vehicles (Amendment) Act, 1994, with effect from 14.11.1994, as soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this Section is completed by a police officer, the officer in charge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and insurer. 12. Section 160 of the Motor Vehicles Act deals with duty to furnish particulars of vehicle involved in accident. As per Section 160, a Registering Authority or the officer-in- charge of a police station shall, if so required by a person who alleges that he is entitled to claim compensation in respect of an accident arising out of the use of a motor vehicle, or if so required by an insurer against whom a claim has been made in respect of any motor vehicle, furnish to that person or to that insurer, as the case may be, on payment of the prescribed fee any information at the disposal of the said authority or the said police officer relating to the identification marks and other particulars of the vehicle and the name and address of the person who was using the vehicle at the time of the accident or was injured by it and the property, if any, damaged in such form and within such time as the Central Government may prescribe. 13. Section 166 of the Motor Vehicles Act deals with application for compensation. 13. Section 166 of the Motor Vehicles Act deals with application for compensation. As per sub-section (1) of Section 166, an application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made by persons enumerated in clauses (a) to (d) thereof. As per sub-section (4) of Section 166, substituted by the Motor Vehicles (Amendment) Act, 1994, with effect from 14.11.1994, the Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act. 14. Rule 150 of the Central Motor Vehicles Rules deals with furnishing of copies of reports to the Claims Tribunal. As per sub-rule (1) of Rule 150, the police report referred to in sub-section (6) of Section 158 of the Motor Vehicles Act shall be in Form 54. As per sub-rule (2) of Rule 150, a Registering Authority or a police officer who is required to furnish the required information to the person eligible to claim compensation under Section 160, shall furnish the information in Form 54, within seven days from the date of receipt of the request and on payment of the fee of rupees ten. 15. As per Form No.54 prescribed in the Central Motor Vehicles Rules, the 'Accident Information Report' shall contain necessary particulars in respect of the deceased/injured, the vehicle involved in the accident, etc., as enumerated in clauses (1) to (13), which include the name and address of the person injured/deceased and also the name and address of the driver of the vehicle; the driving licence particulars; the name and address of the owner of the vehicle; the name and address of the insurance company with whom the vehicle was insured and the particulars of the Divisional Officer of the said insurance company; the insurance particulars of the vehicle; the registration particulars of the vehicle; etc. 16. In Jai Prakash v. National Insurance Co. 16. In Jai Prakash v. National Insurance Co. Ltd.; [ (2010) 2 SCC 607 ] the Apex Court noticed that, by the Motor Vehicles (Amendment) Act, 1994 the Legislature tried to reduce the period of pendency of claim cases and quicken the process of determination of compensation by making two significant changes in the Act, making it mandatory for registration of a motor accident claim within one month of receipt of first information of the accident, without the claimants having to file a claim petition. In General Insurance Council v. State of A.P. [ (2007) 12 SCC 354 ] the Court emphasized the need for implementing the aforesaid provisions, by directing all State Governments and Union Territories to instruct all police officers concerned about the need to comply with the requirement of sub-section (6) of Section 158 of the Motor Vehicles Act, keeping in view the requirement indicated in Rule 150 and in Form 54 of the Central Motor Vehicles Rules, 1989. Periodical checking shall be done by the Inspector General of Police concerned to ensure that the requirements are being complied with. In case there is non-compliance, appropriate action shall be taken against the erring officials. The Court directed the Ministry of Road Transport and Highways to make periodical verification to ensure that action is being taken and in case of any deviation immediately bring the same to the notice of the State Governments/Union Territories concerned so that necessary action can be taken against the officials concerned. But unfortunately neither the police nor the Motor Accidents Claims Tribunals have made any effort to implement these mandatory provisions of the Act. If these provisions are faithfully and effectively implemented, it will be possible for the victims of accident and/or their families to get compensation, in a span of few months. There is, therefore, an urgent need for the concerned police authorities and Tribunals to follow the mandate of these provisions. 17. The Apex Court, in Jai Prakash's case (supra), emphasised the need to comply with the requirement of sub- section (6) of Section 158 of the Motor Vehicles Act, keeping in view the requirement indicated in Rule 150 of the Central Motor Vehicles Rules, in Form 54 of the said Rules. 18. 17. The Apex Court, in Jai Prakash's case (supra), emphasised the need to comply with the requirement of sub- section (6) of Section 158 of the Motor Vehicles Act, keeping in view the requirement indicated in Rule 150 of the Central Motor Vehicles Rules, in Form 54 of the said Rules. 18. As already noticed, as per the mandate of sub- section (6) of Section 158 of the Motor Vehicles Act, read with sub-rule (1) of Rule 150 of the Central Motor Vehicles Rules, the 'Accident Information Report' forwarded to the Claims Tribunal by the officer in charge of police station, in Form No.54, shall contain necessary particulars in respect of the deceased/injured, the vehicle involved in the accident, etc., which includes the name and address of the person injured/deceased and also the name and address of the driver of the vehicle; the driving licence particulars; the name and address of the owner of the vehicle; the name and address of the insurance company with whom the vehicle was insured and the particulars of the Divisional Officer of the said insurance company; the insurance particulars of the vehicle; the registration particulars of the vehicle; etc. 19. By the Motor Vehicles (Amendment) Act, 2019 Chapter XI of the principal Act was substituted. As per Section 159 of the Motor Vehicles Act, after substitution of Chapter XI, the police officer shall, during the investigation, prepare an accident information report to facilitate the settlement of claim in such form and manner, within three months and containing such particulars and submit the same to the Claims Tribunal and such other agency as may be prescribed. As per sub- clause (iii) of clause (a) of sub-section (2) of Section 164C, the Rules made by the Central Government under sub-section (1) of Section 164C, may provide for the form in which the accident information report may be prepared, the particulars it shall contain, the manner and the time for submitting the report to the Claims Tribunal and the other agency under Section 159; and as per sub-clause (iv) of clause (a) of sub- section (2) of Section 164C, the form for furnishing information under Section160. 20. 20. In the absence of correct and complete address of the driver and owner of the vehicle involved in the accident, and that of the insurer of the said vehicle, with the particulars of the Divisional Officer of the insurance company, in the police records, and also in the 'Accident Information Report forwarded to the Claims Tribunal in Form No.54, the victims of accident and/or their families are forced to file claim petitions before the Claims Tribunal with incorrect or incomplete address of the driver, owner or insurer of the vehicle involved in the accident. 21. The State Police Chief shall take necessary steps to ensure strict compliance of the statutory requirements of sub- section (6) of Section 158 of the Motor Vehicles Act [Section 159 of the Motor Vehicles Act, after substitution of Chapter XI by the Motor Vehicles (Amendment) Act, 2019] by all officers in charge of police stations, keeping in view the requirement indicated in Rule 150 of the Central Motor Vehicles Rules, in Form 54 of the said Rules and that, the police records and also the 'Accident Information Report' forwarded to the Claims Tribunal in Form No.54 contains the Correct and complete address of the driver and owner of the vehicle involved in the accident, and that of the insurer of the said vehicle, with the particulars of the Divisional Officer of the insurance company. 22. The learned Special Government Pleader would submit that the State Police Chief shall take immediate steps to ensure strict compliance of the statutory requirements referred to hereinbefore. The said submission is recorded. 23. An application for compensation filed before the Claims Tribunal, in the form prescribed under the Kerala Motor Accidents Claims Tribunal Rules, shall contain the name and address of the person injured/deceased and also the name and address of the owner of the vehicle; the insurer of the vehicle; the driver of the vehicle; and the applicant. The absence of correct and complete address of the driver, owner and insurer of the vehicle involved in the accident in an application for compensation, will result in considerable delay in its final disposal. The absence of correct and complete address of the claimant and the respondents in the award passed by the Claims Tribunal will result in the filing of appeals before this Court with incorrect or incomplete address of the respondents. The absence of correct and complete address of the claimant and the respondents in the award passed by the Claims Tribunal will result in the filing of appeals before this Court with incorrect or incomplete address of the respondents. Therefore, all Claims Tribunals in the State shall take necessary steps to ensure that the correct and complete address of the person injured/deceased and also the name and address of the owner of the vehicle; the insurer of the vehicle; the driver of the vehicle; and the applicant are mentioned in the claim petitions filed before the Tribunals and in the awards passed by the Tribunals. 24. Chapter IV of the Rules of the High Court of Kerala, 1971 deals with service of notices. As per sub-rule (1) of Rule 51, unless otherwise ordered, every notice shall be sent, in the first instance, to the address of the respondent given in the memorandum of appeal or petition, as the case may be, by means of registered post, acknowledgment, prepaid. An acknowledgment purporting to be signed by the respondent shall be deemed to be sufficient proof of service of such notice. As per sub-rule (2) of Rule 51, where the postal article containing the notice is received back by the Court with an endorsement purported to have been made by a postal employee to the effect that the respondent or his agent had refused to take the delivery of postal article containing the notice when tendered to him, the Court shall declare that the notice had been duly served on the respondent. Going by the proviso to sub-rule (2) of Rule 51, where the notice was properly addressed, prepaid and duly sent by registered post, acknowledgment due, the declaration referred to in sub-rule (2) shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid or for any other reason has not been received by the Court within thirty days from the date of issue of the notice. 25. 25. In Sali Mohan v. Kolazhi Grama Panchayath, Thrissur and others [ 2015 (4) KHC 261 : 2015 (3) KLT 199] this Court held that a postal article with incomplete Or indefinite address, without specifying some definite place for delivery, such as a particular house or building, or a particular post box, or a particular number in a street, along with the name of the locality where the addressee resides or carries on business or employed, cannot be termed as one 'properly addressed' in order to draw a presumption as to service of document by post, under Section 27 of the General Clauses Act, 1897 Or Section 26 of the Interpretation and General Clauses Act, 1125, or under Section 16 or Section 114 of the Evidence Act, 1872. This Court held further that, for drawing a presumption under the proviso to sub-rule (2) of Rule 51 of the Rules of the High Court of Kerala, 1971 that the notice had been duly served on the respondent, one of the essential circumstances is that the notice was 'properly addressed', Paragraphs 18 and 19 of the said judgment read thus; “18. As I have already noticed, Section 27 of the General Clauses Act, 1897 as well as Section 26 of the Interpretation and General Clauses Act, 1125 do not lay down an inflexible or conclusive presumption as to service of notice by registered post. It only states that, a presumption as to service of document by post can be drawn if the circumstances enumerated in Section 27 of the Central Act or Section 26 of the State Act are present, unless the contrary is proved. One of the essential circumstances for drawing such a presumption as to service of document by post is that, the registered postal article should be "properly addressed." A postal article with incomplete or indefinite address, without specifying some definite place for delivery, such as a particular house or building, or a particular post box, or a particular number in a street, along with the name of the locality where the addressee resides or carries on business or employed, cannot be termed as one "properly addressed" in order to draw a presumption as to service of document by post, under Section 27 of the Central Act or Section 26 of the State Act, or under Section 16 or Section 114 of the Evidence Act. 19. 19. Similarly, for drawing a presumption under the proviso to sub-rule (2) of Rule 51 of the Rules of the High Court of Kerala, that the notice had been duly served on the respondent, one of the essential circumstances is that the notice was "properly addressed." If the postal article containing the notice issued by this Court contain only an incomplete or indefinite address, without specifying some definite place for delivery, such as a particular house or building or a particular post box or a particular number in a street, along with the name of the locality where the respondent resides or carries on business or employed, it cannot be termed as a notice "properly addressed" to the respondent in order to draw a presumption under the proviso to sub-rule (2) of Rule 51, that the notice had been duly served on such respondent.” 26. In Sali Mohan's case (supra) it was noted that, this Court vide Notification No. A1-14065/2007 dated 09.10.2007 has instructed that, the actual postal address of the parties, with correct pin code, should be shown in all proceedings flied in this court and that, no proceedings shall be received without such actual postal address. The said notification was issued, when this Court noted that, the address of the parties given in the memorandum of writ petition, appeal, etc. are not the actual address, as a result of which, the notice and other articles sent by post in such address are returned by the Postal Department stating that addressee not known. 27. Part III of the Indian Post Office Rules, 1933 deals with registration of postal articles. As per sub-rule (1) of Rule 64 of the Indian Post Office Rules, 1933, if the sender of a registered article pays at the time of posting the article a fee of rupee three in addition to the postage and registration fee, there shall be sent to him on the delivery of the article a form of acknowledgment which shall be signed in ink by the addressee or his duly authorised agent or if the addressee refuses to so sign shall be accompanied by statement to the effect that the addressee or his duly authorised agent has refused to so sign. As per sub-rule (2) of Rule 64, no article for which an acknowledgment is required under sub-rule (1) shall be accepted for registration unless it bears the name and address of the sender and is accompanied by a prescribed from of acknowledgment duly filled in and securely fastened to such article and unless the article bears the superscription Acknowledgment Due on the address side. 28. Therefore, the cause title of all proceedings filed before this Court, including an appeal filed under Section 173 of the Motor Vehicles Act, shall contain the correct and complete postal address of the parties with correct pin code and no proceedings shall be received without correct and complete postal address of the parties. Every notice sent by registered post with Acknowledgment Due shall bear the name and address of the sender and accompanied by a prescribed form of acknowledgment duly filled in [which shall bear the name and the correct and complete address of the sender and the addressee] and securely fastened to such article. The Registry shall ensure strict compliance of the statutory requirements of Rule 51 of the Rules of the High Court of Kerala, read with Rule 64 of the Indian Post Office rules, 1933, in all proceedings filed before this Court. 29. In the instant case, the address of the appellant and that of the respondents shown in the cause title of the memorandum of appeal is incomplete. The pin code of respondents 1 and 2 are handwritten. The impugned award of the Motor Accidents Claims Tribunal, Kottayam in O.P. (MV) No. 1052 of 2015 contains incomplete address of the parties. 30. In cases in which the award passed by the Claims Tribunal contains incomplete address of the appellant in a Motor Accidents Claims Appeal, who is the claimant or respondent before the Claims Tribunal, the complete address of the appellant shall be shown in the cause title of the memorandum of appeal, after making a statement to that effect in that memorandum. 31. 31. In cases in which the award passed by the Claims Tribunal contains incomplete address of the respondents in a Motor Accidents Claims Appeal, who are the claimants or respondents before the Claims Tribunal, the complete address of those respondents by incorporating the name of the post office, district or pin code shall be shown in the cause title of the memorandum of appeal, after making a statement to that effect in that memorandum. 32. In cases in which the award passed by the Claims Tribunal contains incomplete address of the insurance company, the complete address of the Divisional Office or Branch Office of the insurer, represented by its Divisional Manager or Branch Manager, as the case may be, shall be shown in the cause title of the memorandum of appeal, after making a statement to that effect in that memorandum. 33. In cases in which cause title of the memorandum of appeal in a Motor Accidents Claims Appeal already filed before this Court contains incomplete address of the parties, the cause title can be amended appropriately by filing an application for amendment. 34. It is for the appellant to cure the defects noted by Registry appropriately, within two weeks from the date of receipt of a copy of this order.