D. Usha v. Shajahhan and Kamarudeen and The Manager, New India Assurance Co. Ltd.

**MACA NO. 2953 OF 2009** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 9[TH] DAY OF FEBRUARY 2022 / 20TH MAGHA, 1943** **MACA NO. 2953 OF 2009** **AGAINST THE ORDER/JUDGMENT IN OP(MV) 1876/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ATTINGAL** ## **APPELLANT/PETITIONER:** D. USHA, D/O.DIVAKARAN, RANI BHAVAN, CHERUPARA P.O., KILIMANOOR (VIA), THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI. K.SIJU SRI.PRATHEESH.P ## **RESPONDENTS/RESPONDENTS:** 1 SHAJAHAN, S/O.MEERA SAHIB, A.S.MANZIL, KUNNIL, PONGALKADU, KOLLAM DISTRICT. 2 KAMARUDEEN S/O.SUBAIR NAJEEM MANZIL, CHINGELI, DARPAKKDU,, KADAKKAL, KOLLAM DISTRICT. 3 THE MANAGER NEW INDIA ASSURANCE CO.LTD. PULAMON, KOTTARAKKARA. BY ADVS. SRI.ALEXANDER GEORGE SMT.M.MEENA JOHN SRI.VIJU THOMAS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 2953 OF 2009** **2** ## **JUDGMENT** The appellant was the petitioner in O.P(MV) No.1876/2002 on the file of the Motor Accidents Claims Tribunal, Attingal. 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 damages sustained to her residential building. It was her case that, on 08.10.2002, at about 4.30 a.m., while the appellant and her family members were sleeping, a lorry bearing Reg.No.KL7H/9876, driven by the 1[st] respondent in a negligent manner, rammed into her house. The front wall, terrace and corridor of her house got completely damaged, and they collapsed. The lorry was owned by the 2[nd] respondent and insured with **MACA NO. 2953 OF 2009** **3** the 3[rd] respondent. Pursuant to the accident, the Kilimanoor Police registered Crime No.303/2002 against the 1[st] respondent for offences punishable under Sections 279 and 337 of the Indian Penal Code. Hence, the appellant claimed a compensation of Rs.2,00,000/- from the respondents. 3. The 1[st] respondent had filed a written statement denying the pleadings in the claim petition. It was contended that the damage caused to the house was minor in nature, which he quantified at Rs.10,000/-. It was also stated that the accident did not happen due to his negligence, but because of the heavy rains, the vehicle had skidded off the road. However, it was stated that, as the vehicle was validly insured with the 3[rd] respondent, the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent arising out the accident. 4. The 3[rd] respondent had filed a written statement refuting the pleadings in the claim petition. The 3[rd] respondent contended that the petitioner had not produced any material to prove the expenses incurred by her to repair **MACA NO. 2953 OF 2009** **4** the house. It was also contended that even though the lorry was validly insured with the 3[rd] respondent, the 1[st] respondent had not produced his driving licence. Also, the compensation claimed was exorbitant because the damage to the building was minor in nature. 5. The appellant had produced and marked Exts.A1 to A4 in evidence. The commission report and the valuation report prepared by the Advocate Commissioner, appointed by the Tribunal, were marked as Exts. C1 and C1(a). 6. The Tribunal, after analysing the pleadings and materials on record, found that the appellant had suffered a damage of Rs.15,554/-, but dismissed the claim petition on the finding that the petitioner had not proved her ownership over the building. 7. Aggrieved by the dismissal of the claim petition, the petitioner is in appeal. 8. Heard; Sri.Siju Kamalasanan, the learned counsel appearing for the appellant/petitioner, Sri.Alexander George, the learned counsel appearing for the respondents 1 and 2 **MACA NO. 2953 OF 2009** **5** and Sri.Viju Thomas, the learned counsel appearing for the 3rd respondent- insurer. 9. The point that arises for consideration in the appeal is whether the dismissal of the claim petition is sustainable in law or not? ## **Negligence and liability** 10. As per Ext.A4 charge-sheet filed by the Kilimanoor Police in Crime No.303/2002, it is proved that the damage was caused to the house of the appellant due to the negligence of the 1[st] respondent. The respondents have not let in any evidence to discredit Ext.A4 charge-sheet as laid down by this Court in **New India Assurance Co. Ltd v. Pazhaniammal** [2011 (3) KLT 648]. 11. Even though the 3[rd] respondent had taken a defence that the 1[st] respondent had not produced his driving licence, the same was not pursued by the 3[rd] respondent by letting in any evidence. 12. It is settled law that, if the insurer takes a contention that the driver of the vehicle does not have a **MACA NO. 2953 OF 2009** **6** valid driving licence, necessarily the onus is on the insurer to substantiate the said defence. Further, as per Ext.A4 charge-sheet, the Police have not found that the first respondent did not have a licence, but only charged the 1[st] respondent for the offences punishable under Sections 279 and 337 of the Indian Penal Code. Thus, it is proved and established that the accident was caused due to the negligence of the 1[st] respondent and that the 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the lorry. Therefore, the 3[rd] respondent is to indemnify the liability of the 2[nd] respondent arising out of the accident. ## Ownership and Quantum of compensation 13. As per Ext.A1 F.I.R and Ext.A4 charge-sheet, the Police have found that the damage was caused to the petitioner's residential building. The respondents do not have a case that the building did not belong to the appellant. The Tribunal, without raising any issue, has transgressed into an area, which was not disputed by the respondents regarding the ownership of the building. **MACA NO. 2953 OF 2009** **7** 14. It is rudimentary, by virtue of Section 58 of the Indian Evidence Act, 1872, that admitted facts need not be proved. It was no one's case that the residential building did not belong to the appellant. Furthermore, Section 110 of the Indian Evidence,1872, clearly postulates that burden is on the person who denies ownership of a person who is in possession of a property. 15. In the instant case, the respondents have not disputed the ownership or possession of the appellant over the residential building. Therefore, the finding of the Tribunal on this count is patently erroeneous and unwarranted. 16. In the above legal and factual matrix, particularly taking note of Ext.A1 F.I.R. and Ext.A4 charge-sheet, read with Ext.C1 commission report, I set aside the finding that the appellant was not the owner of the building. Consequentially, I set aside the award dismissing the claim petition. **MACA NO. 2953 OF 2009** **8** 17. Now, the question is the quantum of compensation to be awarded to the petitioner due to the damage caused to her building. 18. At the instance of the petitioner, an Advocate Commissioner was appointed, who conducted a local inspection and filed Ext.C1(a)- valuation report. As per Ext.C1(a) the damage of the building has been assessed at Rs.15,554/-. Neither the appellant nor the respondents have objected to Ext.C1(a). Hence, the assessment made by the Advocate Commissioner in Ext.C1 at Rs.15,554/- is only to be accepted. Accordingly, I answer the said point in favour of the petitioner and award her an amount of Rs.15,554/- as damages. In the result, the appeal is allowed by setting aside the award and by allowing O.P(MV)No.1876/2002, by permitting the appellant/petitioner to recover from the 3[rd] respondent an amount of Rs.15,554/- with interest at the rate of 6% per annum from the date of petition till the date of realisation **MACA NO. 2953 OF 2009** **9** and a cost of Rs.10,000/-. The 3[rd] respondent is ordered to deposit the compensation amount with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the compensation amount to the appellant/petitioner in accordance with law. ma/09.02.2022 Sd/- **C.S.DIAS, JUDGE** **/True copy/**