Chemmannur Gold Refinaries Pvt. Ltd. v. M.R.Radha, Saju Mathew & Oriental Insurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930** **MACA.No. 628 of 2007(A)** **---------------------------------** **AGAINST THE ORDER DATED 10/03/2006 IN OPMV.2773/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM ....................** ## **APPELLANT/1ST RESPONDENT** **---------------------------------------** **CHEMMANNUR GOLD REFINERIES PVT. LTD., 39/5381 A, ALLAPPATT EXTENSION, RAVIPURAM, KOCHI, REPRESENTED BY ITS MANAGING DIRECTOR.** **BY ADV. SRI.VIJU ABRAHAM SRI.JOY C. PAUL SRI.BENOY K.KADAVAN** ## **RESPONDENTS: PETITIONER & RESPONDENTS 2 & 3** **-----------------------------------------------------------** **1. M.R.RADHA, W/O. RAGHAVAN, MATTAYATH HOUSE, NEDUNGADU P.O., NAYARAMBALAM, ERNAKULAM.** **2. SAJU MATHEW, S/O. K.O.MATHEW, KAVUMPURATH HOUSE, ELANGAVAM KARA, VARAPETTY, KOTHAMANGALAM TALUK.** **3. ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, L.I.C. BUILDINGS, 3RD FLOOR, CHINNAKADA, KOLLAM-691 001.** **BY ADV. SRI.M.JACOB MURICKAN FOR R3 SRI.P.R.RADHAKRISHNAN FOR R1 SRI.K.MADHU FOR R1** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ORDER ON I.A.882 OF 2007 IN M.A.C.A. NO. 628 OF 2007** **DISMISSED** **26/8/08** **SD/- M.N. KRISHNAN, JUDGE.** **[ True Copy ]** **P.A. TO JUDGE.** **M.N. KRISHNAN, J.** **= = = = = = = = = = = = = = M.A.C.A. NO. 628 OF 2007 = = = = = = = = = = = = = = = Dated this the 26[th] day of August, 2008.** **==> picture [118 x 9] intentionally omitted <==** This appeal is preferred by the first respondent in O.P. (MV)2773/04 against the award of the Motor Accidents Claims Tribunal, Ernakulam. The claimant in the said case was awarded a compensation of Rs.33,750/-. The Tribunal found that the vehicle was driven by the claimant in O.P.1499/99 and therefore further held that as he did not have a valid driving licence the insurance company is entitled to reimbursement of the amount from the owner of the vehicle namely the appellant. 2. Heard the counsel for both sides. The first point to be considered is whether the Tribunal was right in holding that the accident took place on account of the negligence of the petitioner in O.P.1499/99. Therefore it is necessary to give a brief facts of that case though it is not a subject matter of appeal. O.P.1499/99 was filed by one Joemon Sebastian contending that he was a pillion rider in the M.A.C.A. 628 OF 2007 ## -:2:- scooter driven by the 2[nd] respondent, Saju Mathew and after hitting a pedestrian namely the claimant in O.P.2773/04, the said Joemon Sebastian sustained injuries and therefore he had claimed compensation. The insurance company would contend that the vehicle involved was driven by Joemon Sebastian and not Saju Mathew and as the said Joemon Sebastian did not have a valid driving licence the name of the 2[nd] respondent has been planted as a respondent rider and therefore it shall not be entertained. It is also to be stated this Joemon Sebastian is not made a party in O.P.2773/04. The learned counsel for the insurance company would first contend for the position that there has been a finding in O.P.1499/99 that Joemon Sebastian was riding the vehicle and as no appeal is preferred against the same, the appellant is precluded from filing and challenging the finding in the other O.P. I am afraid that the said plea cannot be entertained in the light of the decision of the Apex Court reported in _**Nalakath Sainuddin v. Koorikadan Sulaiman (AIR 2002 SC 2562)**_ where the Apex Court held that, M.A.C.A. 628 OF 2007 -:3:- 'Any aggrieved party, the expression employed in S.20(1) means a person feeling aggrieved by ultimate decision, i.e. operative part of the order. A party to the proceedings, who has succeeded in securing the relief prayed for, is not a party aggrieved though the order contains a finding or two adverse to him.” 3. In this case also ultimately no relief is granted against the appellant and therefore it cannot be stated that the appellant is aggrieved by the decision rendered in O.P.1499/99 and therefore there is no bar on him at all. In the decision reported in _**P.M.A. Metropolitan v. Moran Mar Marthoma (AIR 1995 S.C.2001).**_ The Apex Court held that the matter should have been adjudicated stricto senso in the earlier litigation. So in the light of the fact that the appellant was not aggrieved by the final decision rendered one cannot hold that he is barred by the principles of resjudicata in filing this appeal. 4. Now, the other question that is raised by the learned counsel for the appellant is to the effect that this ## M.A.C.A. 628 OF 2007 ## -:4:- Joemon Sebastian has not been impleaded as a party in O.P.2773/04 and therefore an award passed without his junction cannot make the first respondent liable for the claim. It is a persuasive and sound argument but in this case the difference is that the petition filed by Joemon Sebastian and the claimant in the other cases were tried jointly, Joemon Sebastian had been heard to his full satisfaction and thereafter the Tribunal arrives at a finding who had ridden the vehicle and in the light of the common discussion and the documents available arrives at a decision in the case. Therefore the strict procedural formality though not applied the principles of natural justice and right to be heard are well complied and it is with Joemon Sebastian also on the party array in a joint trial case the tribunal has decided the matter. Therefore the said contention of the learned counsel is not acceptable. 5. Now, the next question to be considered is the crucial question namely who had driven the scooter at the relevant time of accident. I am conscious of the fact the investigating agency has filed a charge sheet against the 2[nd] ## M.A.C.A. 628 OF 2007 ## -:5:- respondent for riding the vehicle in a rash and negligent manner. It is equally a settled principle that such documents are not conclusive and binding on a Claims Tribunal for the reason that it is an independent authority who can consider all the documents and arrive at a decision. The attempt of Joemon Sebastian from the inception itself appears to be of a shabby character and it is proved by the documents and his own application before the Tribunal, a person who claims to be a pillion rider in a scooter files an application before the Tribunal as if he was a pedestrian and he had been hit by the scooterist. One can go wrong in other aspects but not to this fundamental aspect which goes a long way to show that he has fought the litigation but unfortunately not very wisely. 6. Now, I will refer to the crucial documents which put the law in motion under the Criminal law. The wound certificate shall show that in column 8 Mr. Joemon Sebastian (rider of scooter) is written. Subsequently, we find the word pillion rider inserted above the same which shows that it can be nothing but a subsequent insertion. In Ext.A4 which is the wound certificate of Mr. Joemon Sebastian, in column M.A.C.A. 628 OF 2007 ## -:6:- No.8 starts with the word 'self' as if he himself has gone to the hospital and the cause of accident is reported as a fall from his moped. Subsequently after all these things an endorsement is seen after hitting a pedestrian further entry is made that he was a pillion rider. After hitting the pedestrian and he is a pillion rider are something subsequent intervention tactics and that also has to be viewed with only suspicion. The most two crucial documents which is immediately prepared after the accident would reveal that it was this man who was riding the vehicle. If he had been only a pillion rider he would not have initially stated that it was a fall from his moped. Admittedly, he was not the owner as well. It is in this case back ground the Tribunal has analysed the entire evidence. The Tribunal felt that the evidence of Radha to the effect that she was taken to the hospital by her husband and the rider and that rider can only be Joemon Sebastian. The Tribunal stated that if Joemon Sebastian was pillion riding, he would have sustained injuries and the pleading of Radha that Joemon Sebastian has taken her to hospital may not be possible for the reason an injured M.A.C.A. 628 OF 2007 ## -:7:- person cannot take another injured person to hospital. So the materials available before the Tribunal so far as it relates to the cause of riding of the scooter by 2[nd] respondent appears to be unacceptable and the only possibility is that the claimant in O.P.1499/99 would have driven the vehicle. In a civil case it is the preponderance of probability that may have to be looked into and in such evidence adduced intrinsic reliability and inherent probabilities has to be given weight and not the quantity of evidence but the quality of evidence. I would like to mention that men may lie but circumstances will never lie and here the circumstances pin points towards Joemon Sebastian who had driven the scooter and not the 2[nd] respondent. So on an analysis of the entire materials before the Tribunal and on re-appreciation of the same I hold that the Tribunal was perfectly just in holding that it was Joemon Sebastian who had driven the vehicle at the relevant time of accident. The appellant has not been taken by surprise for the reason that the matter has been jointly tried. Therefore I do not want to interfere with the decision rendered by the Tribunal and therefore the appeal lacks M.A.C.A. 628 OF 2007 **==> picture [22 x 9] intentionally omitted <==** merit and the same dismissed but under the circumstances without any order as to costs. ## **M.N. KRISHNAN, JUDGE.** ul/-