IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 19TH DAY OF MAY 2023 / 29TH VAISAKHA, 1945 MACA NO. 443 OF 2013 AGAINST THE AWARD DATED 14.08.2012 IN OP(MV) 843/2009 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOLLAM APPELLANT/1ST RESPONDENT: P.BEEMA 6/56 A,MANDALAKSHIKONAM, NEAR SALVATION ARMY CHURCH, KULASEKHARAM.P.O,KANYAKUMARI,TAMIL NADU. BY ADV SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS/PETITIONER & RESPONDENTS 2 & 3: 1 TRAVANCORE DEVASWOM BOARD, REPRESENTED BY P.R.ANITHA, SECRETARY,TRAVANCORE DEVASWOM BOARD, NANTHANCODE,THIRUVANANTHAPURAM - 695121 2 ABU MUHAMMED, S/O.MUHAMMEDALI,KALLUVETTANKUZHIVILA, NEAR KULASEKHARAMANGALAM MISSION HOSPITAL, TIRUVATTAN VILLAGE,KALKULAM,KANYAKUMARI-629161 3 THE ICICI LAMBARD GENERAL INSURANCE CO, REPRESENTED BY ITS BRANCH MANAGER, 3RD FLOOR, KANNANKERI ESTATE,MARINE DRIVE,KOCHI.- 682030. ADDL. RESPONDENT NO. 4 IMPLEADED ADDL.R4 UNITED INDIA INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE NO.1, CWC BUILDING, PALAYAM, LMS COMPOUND, TRIVANDRUM, KERALA - 695 033. ADDITIONAL RESPONDENT NO.4 IS IMPLEADED AS PER ORDER DATED 14/03/2013 IN I.A. 695/13 IN MACA 443/2013. R1 BY ADV.SMT.A.SREEKALA, SC, TRAVANCORE DEVASWOM BOARD R2 BY ADV.SRI.BRIJESH MOHAN R3 BY ADV.SRI.R.AJITH KUMAR VARMA ADDITIIONAL R4 BY ADVS.SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SRI.G.SANTHOSH KUMAR (P). THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.11.2022, THE COURT ON 19.05.2023 DELIVERED THE FOLLOWING: M.A.C.A. No. 443 of 2013 -:2:- MARY JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 443 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of May, 2023 JUDGMENT Appeal on hand is filed by the 1st respondent in O.P. (MV) No.843/2009 on the files of Motor Accidents Claims Tribunal, Kollam (for short, ‘the Tribunal’) 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. 3. As revealed from the pleadings in the Original Petition, petitioner was the owner of a tusker named Gopalakrishnan. At about 5.30 a.m. on 24.03.2009 while the elephant was taken by its mahouts through Alappuzha-Kollam National Highway a Truck bearing Registration No.TN-74-V-2449 hit him at Sakthikulangara due to rash and neglect driving by its driver and thereby M.A.C.A. No. 443 of 2013 -:3:- sustained injuries. Treatment was given to it immediately, but it died at 1.30 p.m. on 26.03.2009. Alleging negligence on the part of the driver of the Truck arrayed as the 2nd respondent and claiming a sum of Rs.70,00,000/- as compensation, the Original Petition was filed. The owner, the driver and the insurer of the Truck were arrayed in the Original Petition as respondents 1 to 3. 4. Summons was served on all the respondents, but respondents 1 and 2, due to their failure to appear before the court responding to the summons served on them were declared ex-parte. 3rd respondent had filed written statement admitting insurance coverage for the Truck as on date of the motor accident but contending that the original petition is bad for non-joinder of necessary parties, that the elephant being insured with United India Insurance Company Limited, compensation can be realised from them, that the petitioner is not the owner of the elephant and against the provisions of law M.A.C.A. No. 443 of 2013 -:4:- existing, the elephant was taken on foot through the road, that the elephant was not properly fed at the relevant time, that the elephant became weak on account of poor feeding, that additional premium having not been paid by the insured of the offending vehicle for having unlimited coverage, that the elephant falls in the category of third party property and the coverage for that is limited under the policy stands issued to Rs.7,50,000/-, that by causing 2nd respondent to drive the Truck without a valid driving licence, conditions in the policy was violated by the insured and therefore, the insurer is liable to be exonerated from liability to indemnify the insured. 5. Evidence adduced by the petitioner consists of oral evidence tendered by PWs 1 and 2 and documentary evidence consists of Exts.A1 to A9. Evidence of the respondents consists of the oral evidence of RW1 and Ext.B1. 6. As per the pleadings in the Original Petition, the elephant owned by Travancore Dewaswom Board died due M.A.C.A. No. 443 of 2013 -:5:- to the motor accident. A Truck bearing Registration No. TN-74-V-2449 knocked it at Sakthikulangara while being taken by its mahouts by foot for a festival through Alappuzha-Kollam National Highway. Due to the injuries sustained, it died during the course of treatment. Elephant had sustained fractures to both rear limbs as well as backbone. The injuries were grave in nature and therefore, the elephant died while undergoing treatment. 7. The Truck which knocked down the elephant was established from Exts.A1 to A4 and A6 as driven by the 2nd respondent in a rash and negligent manner. 8. The 3rd respondent had raised a contention on the basis of the elephant health card marked in evidence as Ext.A8 that the temperament history of the elephant was very poor and that has also contributed to the motor accident. 9. The postmortem examination of the elephant was held and the report obtained was marked in evidence as Ext.A5. Antemortem injuries reported in Ext.A5 include M.A.C.A. No. 443 of 2013 -:6:- fracture of pubis, vertebrae and ribs. Kidney, visceral organs, lumbosacral regions and spinal cord were damaged considerably. Cause of death was reported in Ext.A5 as renal failure. PW1 and PW2 were also categorically stated that the death of the elephant was due to the injuries sustained in the motor accident. Therefore, this Court has to maintain the finding of the Tribunal that the elephant died on account of the injuries sustained by it in the motor accident itself. 10. The Tribunal awarded Rs.36,02,000/- as the compensation to the owner of the elephant on account of the death of the elephant. The owner of the elephant has not come up challenging the quantum of compensation stands awarded. The owner of the Truck alone challenged the quantum stands awarded as compensation for the reason mainly that the petitioner failed to adduce evidence to establish the market value of the elephant as Rs.35 lakhs. According to the learned counsel, the Tribunal has arrived at the market value of the elephant M.A.C.A. No. 443 of 2013 -:7:- from Ext.B1 wherein the elephant stands insured for Rs.35 lakhs. 11. True that the petitioner failed to adduce any evidence to establish the market value of the elephant as on date of the accident. But the market value of the elephant was shown in Ext.B1 policy as Rs.35 lakhs. The elephant was insured with the insurer to cover the risk of an elephant while showing its value as Rs.35 lakhs. Therefore, the Tribunal cannot be found fault with in considering the market value of the elephant as Rs.35 lakhs and in awarding the same as compensation for the loss caused to its owner on account of its death. Apart from Rs.35 lakhs, the Tribunal has also awarded Rs.1,01,031/- as compensation towards treatment expenses, stands established by the medical bills. The challenge raised against the quantum of compensation is repelled for the reason. 12. According to the petitioner, she was not the registered owner of the Truck as on date of the motor M.A.C.A. No. 443 of 2013 -:8:- accident. According to her, the vehicle was sold by her to one Mr.Maheen on 19.03.2009 and the change of ownership has also been incorporated in the Certificate of Registration of the vehicle. The Certificate of Insurance was also issued in favour of the transferee of the vehicle. According to her, such being the scenario, liability ought not to have been fastened by the Tribunal on her. According to her 2nd respondent was not the driver employed by her as on date of the motor accident and therefore, the Tribunal has gone wrong in fixing liability upon her to pay the compensation arrived at, in favour of the petitioner. 13. Despite raising contentions as above, the 1st respondent failed to produce the certificate of registration of the offending vehicle as well as the certificate of insurance issued for it, wherein change of name of the transferee has been incorporated. It is found that the extract taken from the Website VAHAN – National Register e-Services vahan.nic.in/nr services, is produced in the M.A.C.A. No. 443 of 2013 -:9:- appeal on hand with a view to establish that application has been filed for transfer of woenrship of the vehicle in favour of Mr.Maheen and the required fees for change of permit and ownership in latter’s name were paid. It is found that a petition seeking to receive those in evidence additionally is not filed. Moreover, the extract produced now will not help the 1st respondent to establish that registered ownership and permit of the offending vehicle had already been transferred in the name of Mr.Maheen. Therefore, the contention of the 1st respondent that the Tribunal has wrongly fixed liability upon her to pay the balance compensation is devoid of any basis. It appears that the 1st respondent herself is the registered owner of the vehicle at the relevant time and only the registered owner can be fastened with the liability to pay compensation. 14. According to her, the offending Truck has insurance coverage under the policy stands issued and the liability is unlimited. According to her the Tribunal M.A.C.A. No. 443 of 2013 -:10:- misconstrued the terms of Ext.B1 and thereby made the 3rd respondent liable to pay Rs.7,50,000/- towards the compensation arrived at. According to her under Ext.B1, the liability of the insured, towards third parties being limited, the petitioner is not entitled to get the entire compensation as arrived at and awarded by the Tribunal. 15. It is further contended that the elephant was insured by the petitioner with United India Insurance Company Limited and therefore, compensation could have been obtained from it. But, the petitioner failed to implead the insurer of the elephant in the Original Petition. According to her, the attempt of the petitioner was to claim compensation from the insurer of the elephant later and thus to be benefited twice. He thus canvassed for dismissal of the Original Petition for non-joinder of necessary parties viz. the insurer of the elephant as well as the transferee of the vehicle. 16. During the pendency of the appeal on hand, the insurer of the elephant was also impleaded as additional M.A.C.A. No. 443 of 2013 -:11:- 4th respondent. There is no merit in the contentions raised by the learned counsel for the respondent that the petitioner has to seek compensation from the insurer, in view of coverage of liability under the policy issued by additional 4th respondent. The offending vehicle stands insured with the 3rd respondent. Therefore, the petitioner can opt to seek compensation from 3rd respondent or additional 4th respondent now got impleaded, since premium has been collected by both insurers to cover the risk of the elephant under the cover, own damages as well as third party property damages. Petitioner can opt one or both. Premium having been collected by the respective insurers, they cannot seek for exemption from liability. The contention raised by the 1st respondent is repelled for the above reason. 17. It is found from Ext.B1 policy that premium has been collected to cover property damages, but the liability to indemnify the insured stands limited to Rs.7,50,000/-. Accordingly the 3rd respondent was fastened by the M.A.C.A. No. 443 of 2013 -:12:- Tribunal with liability to pay Rs.7,50,000/-. The total compensation stands awarded by the Tribunal being Rs.36,01,031/- rounded off to Rs.36,02,000/-, the 1st and 2nd respondents were directed to pay the balance amount. This Court finds no reason to interfere with the impugned award. MACA fails for the reasons and is dismissed. Sd/- MARY JOSEPH, JUDGE MJL