Bahuleyan v. Pradeepan and National Insurance Co. Ltd. and Oriental Insurance Co. Ltd.

MACA NO. 966 OF 2011 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 2[ND] DAY OF SEPTEMBER 2021 / 11TH BHADRA, 1943 MACA NO. 966 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 2480/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM, ERNAKULAM APPELLANT/S:** BAHULEYAN,S/O.RAGHAVAN CHITHIRA HOUSE, NOCHIMA DESAM,, ALUVA EAST VILLAGE, N.A.D.P.O. ALUVA. BY ADVS. SRI.B.RENJITHKUMAR SRI.P.M.NATESAN ## **RESPONDENT/S:** 1 PRADEEPAN, S/O.VISUMBHARAN, VALAVANADITHARA HOUSE, VADAKKEMURI VILLAGE,, VAIKOM TALUK, PIN-686 143. 2 NATIONAL INSURANCE CO.LTD. THRIPUNITHURA BRANCH, REP. BY ITS BRANCH MANAGER, THRIPUNITHURA, PIN-682304 3 THE ORIENTAL INSURANCE CO.LTD. MATTETHARA BUILDING, 3RD FLOOR,, BAKER JUNCTION, KOTTAYAM, PIN-686 001. BY ADVS. SRI.VPK.PANICKER SMT.SARAH SALVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 966 OF 2011 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.2480/2001 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries that he sustained in an accident on 12.09.2000. 3. The concise case of the appellant in the claim petition was that; on 12.09.2000, while he was riding pillion on a motor cycle bearing registration No.KL-7F/1817 (motor cycle) ridden by one Santhosh through the Kalmassery – NAD road, a scooter bearing registration No.KL-5/H 4270 (scooter), driven by the 1[st] respondent in a rash and negligent manner, hit the motor cycle. The appellant sustained serious injuries and was treated at the MAJ Hospital, Edappally, thereafter, at the and Medical Centre 3 MACA NO. 966 OF 2011 Hospital, Palarivattom. The 2[nd] respondent was mistakenly impleaded as the insurer of the scooter. In fact, it was the 3[rd] respondent, who was the insurer of the scooter. The appellant claimed that he was a Lab Technician by profession and earning a monthly income of Rs.8231/-. The appellant claimed an amount of Rs.2,00,000/- as compensation from the respondents. 4. The 1[st] respondent did not contest the proceedings and was set ex-parte. The 3[rd] respondent filed a written statement admitting that the scooter had a valid insurance coverage. Nevertheless, it was contended that there was delay on the part of the appellant in filing the private complaint and setting the law in motion. Therefore, the genuineness of the claim was doubtful, and the claim petition may be dismissed. 5. The appellant examined himself as PW1 and marked Exts.A1 to A11 in evidence. The respondents did not let in any contra evidence. MACA NO. 966 OF 2011 4 6. The Tribunal, after analysing the pleadings and materials on record, dismissed the claim petition for the reasons that there was delay on the part of the appellant in setting the law into motion and the claim petition was a result of the conspiracy hatched by the appellant, the 1[st] respondent and the Police Officer, who laid the charge sheet. 7. Aggrieved by the dismissal of the claim petition, the petitioner is in appeal. 8. Heard; Sri.P.M.Natesan, learned counsel appearing for the appellant/petitioner and Sri.VPK. Panicker, learned counsel appearing for the 3[rd] respondent. Smt.Sarah Selvi entered appearance for the 2[nd] respondent and submitted that the 2[nd] respondent was an unnecessary party in the appeal because the 2[nd] respondent was wrongly impleaded before the Tribunal. 9. Sri.P.M.Natesan argued that the Tribunal had erroneously dismissed the claim petition without considering the pleadings and materials on record in its proper 5 MACA NO. 966 OF 2011 perspective. According to him, there was delay in filing the complaint because the appellant sustained serious injuries and was hospitalised. It was only after he recovered, that he came to learn that the Police had not registered a crime. Consequently, the appellant filed a complaint before the jurisdictional Magistrate and the same was referred to the Police under Section 156 (3) of the Code of Criminal Procedure, pursuant to which Ext.A2 FIR was registered. Thereafter, the Police conducted the investigation and filed Ext.A1 charge sheet before the Judicial First Class Magistrate Court II, Aluva against the 1[st] respondent for the offences punishable under Sections 279, 337 and 338 of the Indian Penal Code. The 1[st] respondent appeared before the learned Magistrate and pleaded guilty to the charges and he was convicted and sentenced to pay a fine of Rs.1,900/-. Moreover, the appellant adduced evidence to corroborate the pleadings and proved Exts.A1 to A11. Hence, the Tribunal ought not to have dismissed the claim petition on hyper technicalities and on the ground of delay in setting the law into motion. Instead, the Tribunal ought to have allowed the MACA NO. 966 OF 2011 6 claim petition as prayed for. 10. Sri. VPK. Panicker defended the impugned award. He contended that the 3[rd] respondent had specifically pleaded in the written statement that there was inordinate delay on the part of the appellant in filing the complaint before the learned Magistrate. The FIR was only registered on 03.12.2000. Therefore, the claim raised by the appellant was doubtful. Thus, the Tribunal has rightly arrived at the conclusion that there is collusion between the appellant, 1[st] respondent and the Police. Hence the appeal may be dismissed. 11. The questions that arises for consideration in the appeal are : - (i). Whether the dismissal of the claim petition is justifiable. - (ii). Whether in the facts and circumstances of the case, the matter is to be remanded back to the Tribunal for fresh consideration. MACA NO. 966 OF 2011 7 ## **Questions (i) and (ii)** 12. The specific case of the appellant was that, while he was riding pillion on the motor cycle, the same was hit by the scooter ridden by the 1[st] respondent. It is on record, as per Ext.A4 wound certificate, Ext.A8 discharge summary and Ext.A10 disability certificate, that the appellant had sustained serious injuries and he was treated as an inpatient in two hospitals from the date of accident till 29.09.2000. 13. The appellant had also contended that due to the injuries he sustained, he was not in a position to enquire whether the Police had registered a case against the 1[st] respondent. Immediately on regaining his health and learning that the Police had not registered a case, the appellant filed a compliant before the jurisdictional Magistrate, who referred the complaint under Section 156(3) of the Code of Criminal Procedure to the Kochi City Traffic Police, who registered Ext.A2 FIR as Crime No.3070/2000 and conducted the investigation. The Police found that it was the 1[st] respondent who was negligent in causing the MACA NO. 966 OF 2011 8 accident. Accordingly, Ext.A1 charge sheet was laid before the jurisdictional Magistrate as C.C.No.67/2001. The 1[st] respondent appeared in the case and pleaded guilty to the charges framed against him. He was convicted and sentenced as evidenced by Ext.A5 judgment. Therefore, the appellant has clearly proved the fact that the accident occurred due to the negligence of the 1[st] respondent. ## 14. This Court in **New India Assurance Company Ltd.** **vs. Pazhaniammal** [2011 (3) KLT 648] has categorically held that, as a general rule, production of the charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act, 1988. Charge sheet can be accepted as evidence of negligence against the accused driver. If any party do not accept such charge sheet, the burden is on such party to adduce oral evidence and discredit the charge sheet; only then the charge sheet will fall into a pale of insignificance. 15. In the instant case, the appellant had not only produced Ext.A1 charge sheet, but also produced Ext.A5 MACA NO. 966 OF 2011 9 judgment, which proves that the 1[st] respondent was convicted and sentenced. 16. The Tribunal, on the basis of the contention of the learned counsel appearing for the 3[rd] respondent, arrived at a conclusion that there was a conspiracy between the appellant, 1[st] respondent and the Police, who filed Ext.A1 charge sheet within a period of 12 days after registering the crime. 17. On a perusal of the written statement filed by the 3[rd] respondent, no such contention is seen taken in the written statement as argued by the learned counsel appearing for the 3[rd] respondent before the Tribunal. 18. On a comprehensive re-appreciation of the pleadings, materials on record and after considering the rival contentions, I am of the definite opinion that there are cogent reasons and grounds warranting the invocation of the power of this Court under Order XLI Rule 23A of the Code of Civil Procedure, to remand the matter back to the Tribunal MACA NO. 966 OF 2011 10 for fresh consideration, especially because the Tribunal has not considered the issues that are germane to the 'lis' between the parties. Therefore, to subserve the ends of justice, I set aside the impugned award and remand the matter back to the Tribunal for fresh consideration. 19. Going by the settled proposition of law in **Pazhaniammal** (supra), if the 3[rd] respondent had a case that the crime was registered pursuant to a conspiracy hatched between the appellant, 1[st] respondent and the Police, it was the bounden duty of the 3[rd] respondent to mount the witness box and discredit the charge sheet and Ext.A5 judgment by letting in cogent evidence. Merely on the basis of the submission made by the learned counsel appearing for the 3[rd] respondent, the Tribunal ought not to have got carried away and arrived at a conclusion that the delay was fatal and that the crime was registered based on a collusion between the above mentioned parties, which is without any foundation in the pleadings or proof. This according to me is against the elementary principles of the law. MACA NO. 966 OF 2011 **==> picture [13 x 9] intentionally omitted <==** In the result, I allow the appeal by setting aside the impugned award and remit O.P.(MV) No.2480/2001 back to the Tribunal for fresh consideration and in accordance with law, untrammeled by any observation in this judgment. The Tribunal shall afford the parties an opportunity of being heard and permit them to raise their contentions. The parties are directed to appear before the Tribunal, either in person or through the counsel, on **04.10.2021** . Keeping in mind the fact that the claim petition is of the year 2001, I direct the Tribunal to consider and dispose of the claim petition as expeditiously as possible. The parties shall bear their respective costs. SD/- **C.S.DIAS JUDGE** rkc