IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 AS.No. 271 of 2001() ----------------------------- OS.1240/1993 of PRL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): PLAINTIFF ---------------------------------------- UNITED INDIA INSURANCE CO. LTD., A SUBSIDIARY OF GENERAL INSURANCE COMPANY OF INDIA, REP.BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, TRIVANDRUM. BY ADVS. SRI.P.V.JYOTHI PRASAD SRI.Y.M.BALAGOPAL RESPONDENT(S): DEFENDANTS --------------------------------------------- 1. KERALA STATE ROAD TRANSPORT CORPORATION, FOR TRIVANDRUM, REP.BY ITS MANAGING DIRECTOR. 2. P.V. VARKY, S/O. VARKY, RESIDING AT PALLATHIL VEEDU, PEROOR VILLAGE, EMPLOYEED AS DRIVER KSRTC, KOTTAYAM DEPOT. 3. D.SOMAN PILLAI, S/O. DAMADARA KURUP, KUZHUVILA PUTHEN VEEDU, ALAMCODU, ATTINGAL, TRIVANDRUM. R1 BY ADVS. SRI.V.V.NANDAGOPAL NAMBIAR, SC KSRTC R3 BY SRI.S.SOMAN, SMT.USHA RAVINDRAN. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 271 OF 2001 = = = = = = = = = = = = = = = Dated this the 15th day of December , 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Thiruvananthpauram in O.S.1240/93. The suit is one for realisation of the amount. The plaintiff is the United India Insurance Co. Ltd. It has insured a car which belonged to the 3rd defendant. That car met with an accident with a bus owned by the K.S.R.T.C. The car sustained heavy damages. The vehicle was insured comprehensively and the plaintiff, Company granted a sum of Rs.77,085/- to the 3rd defendant. The 3rd defendant also executed a letter of subrogation and special power of attorney in favour of the plaintiff on 22.3.93. The plaintiff had impleaded the 3rd defendant as A.S. 271 OF 2001 -2- the informa party to avoid unnecessary complications and therefore the plaintiff prays for a decree. On the other hand the contesting defendants would allege that the suit itself is not maintainable. The proper forum to file such a case is a Motor Accidents Claims Tribunal constituted under S.165 of the M.V.Act and therefore Civil Court has no jurisdiction. Secondly it is also contended that the plaintiff has not joined the affected 3rd party as a co- plaintiff and therefore the suit is not maintainable. Further it is also contended that there was no negligence on the part of the K.S.R.T.C. driver and therefore it is not liable to pay compensation. Now on a consideration of the materials the trial court found that the civil Court has no jurisdiction to entertain the case and therefore dismissed the suit. It is A.S. 271 OF 2001 -3- against that decision the insurance company has come up in appeal. 2. Heard the learned counsel for the plaintiff as well as the K.S.R.T.C. First, let me deal with the prayer of the suit. Unfortunately the plaintiff instead of filing the suit as the power of attorney holder of the 3rd defendant just impleaded him as a 3rd defendant and contended that he is an informal party. Now the position is well settled that the junction of the consignee or the affected person is necessary for a proper determination of the case. The Division Bench of this Court in the decision reported in 1991 (1) KLT 262 (New India Assurance Co. Ltd. v. Okay Transport Corporation) did have the opportunity to consider the question regarding the impleadment of the affected party as defendant. Therein this A.S. 271 OF 2001 -4- Court held as follows. “When all the parties including the party entitled to recover damages are in the party array, the Court will be reluctant to take a hypertechnical view and dismiss the suit only because insured, is, instead of being made co-plaintiff made a defendant. Ordinarily the insurer takes care to implead the insured also as a co-plaintiff after taking the precaution of obtaining a power of attorney from the insured. Plaintiff in this case has obtained a power of attorney from the insured but for some inexplicable reason did not implead the insured as 2nd plaintiff but impleaded him as only defendant. Technically the Court can give a decree in favour of the 2nd defendant against first defendant, and direct 2nd defendant A.S. 271 OF 2001 -5- to pay over the money collected to the plaintiff. In other words, the decree would contain two reliefs, one granted in favour of the 2nd defendant against first defendant and the other granted in favour of the plaintiff against the 2nd defendant. This certainly would lead to complications in as much as the 2nd defendant would be required to levy execution against first defendant and the plaintiff would be required to levy execution against first defendant. Having regard to the peculiar circumstances of the case, civil Court would, with a view to prevent further complications and advance the cause of justice grant a decree in favour of the plaintiff against the first defendant.” It was further held that the Courts can consider the factum that the aggrieved party namely 3rd A.S. 271 OF 2001 -6- defendant in the present suit is therein, in the party array and he has to be compensated by the insurance company and so on that question the suit need not be thrown out. 3. A very important question arises now and that is with respect to the jurisdiction. U/s 165 of the M.V.Act the jurisdiction is conferred exclusively on the driver with respect to the damages of a property of a third party. Formerly under the 1939 M.V.Act u/s 110 (1) proviso there was an option given to the claimant when property damage is above Rs.2,000/-. In think the approach of the civil Court was in accordance with law so there was an option granted to the plaintiff in such cases to choose the forum. The corresponding provision of 110(1) is present under S.165 of the M.V.Act. But u/s 165 of the M.V.Act no such option is A.S. 271 OF 2001 -7- given. So what is to be decided is whether it is with respect to the claim of a third party the case is filed. Now in this back ground one has to refer to a decision of the Division Bench of this Court reported in K.S.R.T.C. v. United India Insurance Co. Ltd. (2000 (2) KLT 456) that was also a case of similar nature where the vehicle was damaged. Under the comprehensive policy, the insurance company paid the amount to the person who had covered the vehicle, got a letter of subrogation and filed a case. The Division Bench of this Court held that the suit is filed only on the basis of a subrogation. When it is only on the basis of a subrogation without the junction of the person who has suffered damages, the Court held that such a case cannot be maintained before the Tribunal for the reason that the third party is not A.S. 271 OF 2001 -8- before the Court. The Court also held that especially in that case that the accident was of the year 1982 when the old M.V.Act of 1939 was in force which contained a specific provision u/s 110(1) which included the forum to be chosen and it also held that in a case where the damages sustained is more than Rs.2,000/- the jurisdiction can be exercised by the civil Court. Therefore on these two grounds the Division Bench of this Court non-suited the plaintiff holding that the Tribunal has no jurisdiction. Now by virtue of the decision in 1991 (1) KLT 262 (New India Assurance Co. Ltd. v. Okay Transport Corporation) it has to be stated that the position of the 3rd defendant will be that of a plaintiff as he is on the party array. When it is so and when he is treated as a co-plaintiff for the purpose of A.S. 271 OF 2001 -9- granting a decree the third party is deemed to be in the party array in the suit. When the third party is deemed to be there in the party array then by virtue of the provisions of the M.V.Act especially 165 of the M.V.Act the jurisdiction is for the Tribunal to decide the case. Because what is to be decided in this case is whether there was an act of negligence on the part of the K.S.R.T.C in connection with the damages and if so whether the K.S.R.T.C. is liable to the third party. Therefore the material point to be decided in such cases can be only dealt with exclusively by the Tribunal. Therefore I find that the civil Court has no jurisdiction and hold that the plaintiff herein is entitled to file a claim application before the concerned Tribunal joining him in the party array and thereafter the matter can be proceeded A.S. 271 OF 2001 -10- with. It is true that there is no limitation now-a-days for filing a claim application. But the period of reasonableness is always a doctrine which has to be followed and as the plaintiff has bonefidely and genuinely prosecuted the matter before the forums thinking that the said Court will have jurisdiction that reasonable period has to be construed in favour of the plaintiff when an occasion arises. So with liberty to file a claim application u/s 165 of the M.V.Act as discussed above the appeal is dismissed. Sd/- M.N. KRISHNAN, JUDGE. ul/- [true copy] P.A. To Judge. A.S. 271 OF 2001 -11- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 271 OF 2001 = = = = = = = = = = = J U D G M E N T 15th December, 2010.