C. V. Ajithkumar v. K. Ramachandran; Narayanan.R.; Oriental Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 16[TH] DAY OF FEBRUARY 2022 / 27TH MAGHA, 1943 ``` ``` MACA NO. 1674 OF 2009 ``` ``` AGAINST THE AWARD DATED 03.11.2008 IN OP(MV)NO.1906/2002 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR. ``` ## `APPELLANT/PETITIONER:` ``` C.V.AJITHKUMAR, AGED 33, S/O.VASUDEVAN WARRIER, KANNANATTU VARIAM, P.O.AYARKUNNAM, KOTTAYAM DISTRICT-686 564. ``` ``` BY ADV SRI.P.T.JOSE ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1K. RAMACHANDRAN, P.O.ALATHUR, PALAKKAD. ``` - `2 NARAYANAN.R., S/O.RAMAN.V. KAIKUNNAMPADAM HOUSE,VENOOR, ALATHUR,PALAKKAD DISTRICT.` - `3 THE ORIENTAL INSURANCE CO.LIMITED DIVISIONAL OFFICE,SOBHA T.S.M.COMPLEX, V.H.ROAD,PALAKKAD.` ``` BY ADV V.A.JOHNSON (VARIKKAPPALLIL) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A.No.1674/2009 -:2:- Dated this the 16[th] day of February,2022 ## **J U D G M E N T** The appellant was the petitioner in O.P.(MV) No.1906/2002 on the file of the Motor Accidents Claims Tribunal, Thrissur. 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(in short, ‘ Act’), claiming damages for his car that met with an accident on 19.05.2002. It was his case that, on the above said day, while his wife was driving his car bearing registration No.KBV 9655, along with her son, parents and maternal aunt and her son, through the Thrissur-Palakkad National Highway, a bus bearing Registration No.KRG-2005, driven by the second respondent in a negligent manner, hit the car. The bus M.A.C.A.No.1674/2009 -:3:- was owned by the first respondent and insured with the third respondent. The car was severely damaged. As per Ext.A18 survey report, the surveyor had assessed the damage @ Rs.60,000/-. Hence, the appellant sought damages from the respondents. 3. Along with the above claim petition, the appellant’s wife had filed O.P.(MV)No.1907/2002 before the same Tribunal, seeking compensation on account of the injuries sustained to her. Similarly, the appellant and his wife had filed O.P.(MV)No.1898/2002 seeking compensation on account of the death of their son. 4. The first respondent did not contest the proceedings. 5. The second respondent had filed separate written statements in the claim petitions contending M.A.C.A.No.1674/2009 -:4:- that the accident occurred due to the negligence of the appellant’s wife – the petitioner in O.P. (MV)NO.1907/2002. 6. The third respondent also filed separate written statements in the claim petitions, reiterating the same contentions as that of the second respondent. The third respondent also disputed the age, income and occupation of the petitioners in all the cases. 7. The Tribunal consolidated and jointly tried the three claim petitions. 8. The Tribunal, after analysing the pleadings and materials on record, particularly taking note of the oral testimony of the second respondent(RW1) arrived at the conclusion that, it was the appellant’s wife – the petitioner in O.P.(MV)No.1907/2002, who was negligent in causing the accident. Consequentially, the M.A.C.A.No.1674/2009 -:5:- Tribunal dismissed the claim petition, as there was no negligence on the part of the second respondent, as alleged in the claim petition. 9. It is assailing the order of dismissal and the finding of the negligence against the appellant’s wife, that the petitioner is in appeal. 10. Heard; Sri. P.T.Jose, the learned counsel appearing for the appellant/petitioner and Sri.A.R. George, the learned counsel appearing for the third respondent-insurer. 11. The sole point that emerges for consideration in the appeal is whether the dismissal of the claim petition is sustainable in law or not? 12. It is nigh settled in **Oriental Insurance Co.** **Ltd v. Premlata Shukla & Ors** [(2017) 13 SCC 476] and a catena of decisions that negligence on the part M.A.C.A.No.1674/2009 -:6:- of the driver of the offending vehicle is sine quo non for maintaining an application under Section 166 of the Act. 13. In the instant case, other than for the bare pleading in the claim petition that the second respondent was negligent in causing the accident, the appellant has not produced any material to substantiate his pleading. On the other hand, the second respondent got himself examined as RW1, and categorically deposed that the accident occurred due to the negligence of the appellant’s wife. The appellant has also withheld the police records. 14. The Tribunal, after appreciating the scene mahazar and finding that the car driven by the appellant’s wife was on the wrong side of the road concluded that it was the appellant’s wife who was M.A.C.A.No.1674/2009 -:7:- negligent in causing the accident. 15. On an overall re-appreciation of the pleadings and materials on record, particularly the oral testimony of RW1 and the reluctance of the appellant to produce the police records, I do not find any error or illegality in the impugned award passed by the Tribunal. Furthermore, it is seen that the appeal filed by the appellant and his wife challenging the award in O.P.(MV) No.1898/2002 has already been dismissed by this Court, as per the judgment dated 10.03.2021 in M.A.C.A.No.1619/2009. Thus, the findings in the said judgment, particularly with regard to the aspect of negligence, operate as res judicata. I do not find any error or illegality in the impugned award dismissing the claim petition. The appeal is devoid of any merits and is, hence, M.A.C.A.No.1674/2009 -:8:- dismissed. In the peculiar facts and circumstances of the case, the parties shall bear their respective costs. ``` Sd/- ``` ## **C.S.DIAS,JUDGE** DST/16.02.22 //True copy/ P.A.To Judge