Aniyan v. Ranji Samuel Ranji Villa and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 18[TH] DAY OF NOVEMBER 2022 / 27TH KARTHIKA, 1944** **MACA NO. 962 OF 2010** **AGAINST THE AWARD IN OP(M.V) 83/1999 OF ADDITIONAL MOTOR** **ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA** ## **APPELLANT/PETITIONER:** ANIYAN, VANIYAPPURAYIL, BHUDHANOOR P.O., BUDHANOOR, CHENGANNUR. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.SURYA SASI ## **RESPONDENTS/RESPONDENTS:** 1 RANJI SAMUEL RANJI VILLA, BUDHANOOR KIZHAKKUM MURI,, ENNAKKAD, 2 MANOJ KUMAR.S. VIVA NIVAS, CHETTIKULANGARA, MAVELIKARA. 3 THE UNITED INDIA INSURANCE CO.LTD. REP.BY THE DIVISIONAL MANAGER, KOCHI. BY ADVS. SRI.M.KIRANLAL SRI.P.K.MANOJKUMAR,SC, UNITED INDIA INSURANCE SRI.RAJESH THOMAS SRI.MANU RAMACHANDRAN SRI.R.RAJESH (VARKALA) SRI.T.S.SARATH SHRI.SAMEER M NAIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.962/2010 2 ## **C.JAYACHANDRAN, J** **------------------------------------** **M.A.C.A.No.962 of 2010 -------------------------------------Dated this the 18[th] day of November, 2022** ## **J U D G M E N T** **1.** This appeal is directed against the order of the Additional Motor Accidents Claims Tribunal, Mavelikkara in O.P(M.V.).No.83 of 1999. In this case, the injured was the pillion in a motor cycle driven by the first respondent. It is alleged that, on account of the rash and negligent driving, the vehicle dashed into a heap of metal stones and the petitioner/pillion sustained injuries. The Tribunal, in the impugned award, quantified the compensation amount, but, dismissed the O.P. on the premise that, negligence on the part of the first respondent/driver is not established. The Tribunal also considered the possibility of a collusion by and between the petitioner/pillion and the first respondent/driver, as indicated in paragraph no.8 of M.A.C.A.962/2010 3 the award. **2.** Heard Adv.George Varghese Perumpallikuttiyil, learned counsel for the petitioner, Adv.M.Kiranlal, learned counsel for the first respondent and Adv.Manoj Kumar, learned counsel appearing for the third respondent/insurance company. Perused the records. **3.** The Tribunal exonerated the insurance company from the liability on the premise that the policy in question is only an 'act only policy', which fact is not disputed before this Court and therefore, the said conclusion is confirmed. **4.** Learned counsel for the appellant submitted that O.P. was dismissed on the premise that, negligence was not proved and also for the reason that the offence charged against the first respondent/driver is one under Section 184 of the Kerala Motor Vehicles Act ['M.V. Act, for short]. Learned counsel M.A.C.A.962/2010 4 would submit that, in so far as negligence component is concerned, there is no serious difference between the essence of the offence under Section 279 of the Penal Code and the one under Section 184 of the M.V. Act. Learned counsel also pointed out that the first respondent was under the spell of alcohol at the time of driving the vehicle, as could be seen from the charge sheet produced as Ext.A5 in the criminal case charged in the incident. Therefore, the offence under Section 184 of the M.V. Act is clearly spelt out, is the submission. It was also pointed out that the offence under Section 184 of the M.V. Act is much more serious than the one under Section 279 of the Penal Code, as could be seen from the punishment prescribed for both. According to the learned counsel, dismissal of the O.P. for alleged want of proof with respect to negligence is completely untenable. As regards the collusion alleged, the same would not stand to any reason in as much as the petitioner is not going to be of any advantage by colluding with the first respondent, M.A.C.A.962/2010 5 from whom, he is seeking compensation. **5.** Opposing the submissions, learned counsel for the first respondent/driver first invited the attention of this Court to the ingredients of the offences under Section 279 of the Penal Code and under Section 184 of the M.V. Act, to point out that the ingredients are different and distinct. In support of the same, learned counsel also relied upon a judgment of the Honourable Supreme Court in **State of Arunachal Pradesh and Others v. Ramachandra Rabidas and Ors** [2019(10) SCC 75]. **6.** The second argument raised by the learned counsel for the first respondent is that the specific case espoused in the original petition against the first respondent/driver was that, he drove the vehicle in high speed causing the accident. There is no allegation that the first respondent was under the spell of alcohol. **Palliayalil Sidique v. State of Kerala** [2013(3) KHC M.A.C.A.962/2010 6 302] was relied upon to drive home the proposition that speed, by itself, would not establish negligence. **7.** Thirdly, learned counsel pointed out that the dictum laid down in **New Indian Assurance Company Limited v. Pazhaniammal [2011(3) KLT 648]** that a final report can be reckoned as prima facie proof of negligence will not apply in the facts of the present case. The offence in question in **Pazhaniammal** supra is the one under Section 279 of the Penal Code and not under Section 184 of the M.V. Act, wherefore, the dictum laid down in **Pazhaniyammal** supra cannot, in terms, apply to the facts, is the argument. **8.** Having heard the learned counsel appearing on both sides, this Court finds merit in the submissions made by the learned counsel for the appellant. The offence under Section 279 Penal Code is extracted herebelow: M.A.C.A.962/2010 7 ## **“Rash driving or riding on a public way –** Whoever navigates any vessel in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.” Similarly, the offence under Section 184 of the M.V. Act is extracted here below: **“ Driving dangerously** .— Whoever drives a motor vehicle at a speed or in a manner which is dangerous to the public, having regard to all the circumstances of the case including the nature, condition and use of the place where the vehicle is driven and the amount of traffic which actually is at the time or which might reasonably be expected to be in the place, shall be punishable for the first offence with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, and for any second or subsequent offence if committed within three years of the commission of a previous similar offence with imprisonment for a term M.A.C.A.962/2010 8 which may extend to two years, or with fine which may extend to two thousand rupees, or with both.” The essential pre-requisite to entertain a claim under Section 166 of the M.V. Act is to establish negligence on the part of the driver of the offending vehicle. In the instant case, only one vehicle is involved and allegations are made against the driver of the motor cycle, in which, the injured was a pillion. Therefore, what has to be looked into essentially is whether there exists any negligence on the part of the driver/first respondent, no matter whether the offence is one under Section 279 of IPC or Section 184 of the M.V. Act. A perusal of Section 184 would indicate that a person who drives a motor cycle at a speed or in a manner dangerous to public, shall be punishable for the offence. In the instant case, it is true that the claimant had alleged negligence against the first respondent, in the context of high speed being employed by him in the motor vehicle. However, a M.A.C.A.962/2010 9 crime has been registered in respect of the incident as Crime No.562 of 1997 of Chengannur Police Station and after due investigation, a final report has been filed, finding commission of offence under section 184 of the M.V.Act and that the first respondent was under the spell of alcohol at the time of driving the vehicle, of which the latter finding aggravates the situation. The contention of the learned counsel for the first respondent that, this Court cannot take into account the findings in the final report that the first respondent/accused was under the spell of alcohol, only for the reason that the same has not been pleaded in the original petition, can hardly be countenanced. Similarly, the distinction sought to be drawn with respect to **Pazhaniammal** supra that the dictum would undergo a change, when the offence involved is one under Section 184 of the M.V. Act also cannot be accepted. The dictum laid down in **Pazhaniammal** supra is only to the effect that the chargesheet/final report can be taken as _prima facie_ sufficient proof of negligence on the M.A.C.A.962/2010 10 part of the driver of the offending vehicle, which legal position cannot undergo any change based upon the nature of the offence alleged, or for that matter, the source of the Statute under which the offences are canvassed. **9.** One last contention to be addressed pertains to the alleged contributory negligence on the part of the petitioner/claimant, which allegation is levelled based on Ext.A6 wound certificate of the claimant, where it is referred that there was smell of alcohol. A mere reference in the wound certificate about smell of alcohol is not sufficient at all to arrive at a conclusion of contributory negligence on the part of the claimant. It has to be borne in mind that the claimant was the pillion in motor cycle driven by the first respondent/driver. He has no control over the vehicle, or for that matter, in the manner in which the vehicle was driven. There is no evidence, whatsoever, to show that owing to consumption of alcohol, the claimant M.A.C.A.962/2010 11 was unable to take care of himself. The legal position in this regard is vouched by a Bench decision of this Court in **Xavier Peter v. L.Earnest and Another** [2016 KHC 1006]. In the light of the attendant facts and authoritative pronouncement above referred, this contention is also liable to be repelled. **10.** In the result, this M.A.C.A. is allowed and the amount of compensation quantified by the Tribunal is directed to be paid by the first respondent/driver to the claimant/appellant within a period of two months from the date of receipt of a copy of this judgment. **Sd/-** **C.JAYACHANDRAN JUDGE** Sbna/