## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE**
**TUESDAY, THE 9TH DAY OF AUGUST 2016/18TH SRAVANA, 1938**
## **MACA.No. 1100 of 2010 ( )**
**-------------------------OPMV. NO.1033/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR. ......**
**APPELLANT/PETITIONER:**
**----------------------------------------**
**ELDHO PAUL, S/O. POULOSE, MANAYATH HOUSE, VEMPILLY KARA, PAZHAMTHOTTAM, KUNNATHUNADU VILLAGE, KUNNATHUNADU TALUK.**
**BY ADVS.SRI.E.C.POULOSE, SMT.BOBBY RAPHEAL. C.**
**RESPONDENTS/RESPONDENTS:**
**------------------------------------------------**
**1. BENNY. P.O., S/O. PETER. P., PULIPARAMBAN HOUSE, NEAR ST. MARY'S CHURCH, CHANDIROOR KARA, AROOR VILLAGE, ALAPPUZHA DISTRICT.**
**2. RAFEEQ. T.B., PROP. CANNORI TRADERS, 9/348, VIJAYA BANK BUILDINGS, NATIONAL HIGHWAY, NETTOOR, ERNAKULAM.**
**3. NATIONAL INSURANCE CO. LTD., COMMERCIAL UNION HOUSE, MARAR ROAD, W/ISLANDS, KOCHI.**
**R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA).**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09-08-2016, ALONG WITH MACA NO.1111 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
- rs.
## **P.N.RAVINDRAN & A.MUHAMED MUSTAQUE, JJ.**
## **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= M.A.C.A.No.1111 and 1100 of 2010 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 9[th] day of August, 2016**
## **JUDGMENT**
## _**P.N.Ravindran, J.**_
These appeals arise from the common award passed by the Motor Accidents Claims Tribunal, Perumbavoor on 23.9.2009 in O.P. (M.V) Nos.1033 of 2004 and 1046 of 2004 respectively. The appellants are the claimants therein. By the impugned award, the Motor Accidents Claims Tribunal dismissed the claim petitions filed by the appellants after entering a finding that the claimant in O.P.(M.V) No.1033 of 2004 who was driving one of the two motor vehicles involved in the accident was guilty of negligence. O.P.(M.V.) No.1046 of 2004 was dismissed on that ground and also on the ground that the owner, driver and insurer of the lorry driven by the claimant in the connected case have not been made parties. The claimants have, aggrieved thereby, filed these appeals. The brief facts of the case are as follows:
2. The appellants/claimants instituted O.P.(M.V.) Nos.1033 of 2004 and 1046 of 2004 on the averment that while they were travelling in a mini lorry bearing Reg.No.KL-8/B-5598, the first respondent before the tribunal, who was driving the mini lorry bearing Reg.No.KL-7/AD-9739, attempted to overtake the mini lorry which the claimant in O.P.(M.V) No.1033 of 2004 was driving and in that process
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the rear left side of the said lorry collided with the front right side of the lorry driven by the claimant in O.P.(M.V.) No. 1033 of 2012 and that he thereby lost control of the said mini lorry, which capsized to the nearby valley. It was stated that the claimant in O.P.(M.V.) No.1046 of 2004 was accompanying the goods carried in the mini lorry driven by the claimant in O.P.(M.V) No.1033 of 2004 and that both the claimants sustained severe injuries in the said motor accident. They contended that the accident took place solely on account of the negligence of the first respondent, the driver of the mini lorry bearing Reg.No.KL 7/AD 9739. The owner of the said mini lorry was joined as the second respondent and its insurer as the third respondent. The claimant in O.P.(M.V.) No.1033 of 2004 claimed in all the sum of Rs.1,30,000/- as compensation, while the claimant in O.P.(M.V.) No.1046 of 2004 claimed the sum of Rs.60,000/- as compensation.
3. Though notice was served, the owner and the driver of the mini lorry bearing Reg.No.KL-7/AD 9739 did not enter appearance or file a written statement. They were therefore set ex-parte. The third respondent, the insurer of the said mini lorry entered appearance and filed a written statement in both the claim petitions, wherein it admitted that the mini lorry bearing Reg.No.KL-7/AD 9739 was covered by a valid policy of insurance issued by it. The insurer however contended that the accident took place on account of the
M.A.C.A.No.1111 & 1100 of 2010
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negligence of the claimant in O.P.(M.V.) No.1033 of 2004. The insurer also contended that the claimant in O.P.(M.V) No.1033 of 2004 had no valid driving license. In O.P.(M.V) No.1046 of 2004, the insurer further contended that the owner, driver and insurer of the mini lorry bearing Reg.No.KL 7-B/5598 should also have been joined as parties to the claim petition. The relevant averments contained in paragraph 3 of the written statement filed by the third respondent insurer in O.P.(M.V) No.1033 of 2004 are extracted below:
_“Without prejudice to the above contentions, this respondent denies the negligence as alleged against the 1[st] respondent. On the other hand the alleged accident in the claim petition was occurred due to the sole negligence on the part of the Claimant alone. The claimant in the process of overtaking the vehicle driven by the 1[st] Respondent the alleged accident occurred. As the alleged accident is a hit from behind by the claimant, the claimant alone was responsible and negligent for the accident. If the alleged accident occurred due to the sole negligence on the part of the claimant alone, he is not at all entitled to get any compensation from this Respondent. The pleadings in the claim petition to the effect that the 1[st] Respondent overtaking the Claimant's mini lorry is not correct and denied by this Respondent.”_
4. The relevant averments contained in paragraph 3 of the written statement filed by the third respondent insurer in O.P.(M.V) No.1046 of 2004 are extracted below:
_“Without prejudice to the above contentions, this respondent denies the negligence as alleged against the 1[st] Respondent. On the other hand the alleged accident in the claim petition was occurred due to the sole_
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_negligence on the part of the driver of the Mini Lorry KL-7-B/5598 alone. The driver of the mini lorry KL-7-B/5598 in the process of overtaking the vehicle driven by the 1[st] Respondent hit on the rear portion of the Vehicle driven by the 1[st] Respondent. As the alleged accident is a hit from behind, the driver of the mini lorry KL-7-B/5598 alone was responsible and negligent for the accident. IF the driver of the Mini Lorry KL-7B/5598 was not negligent the alleged accident would not have happened. As the alleged accident occurred due to the sole negligence on the part of the driver of the mini lorry KL7-B/5598 alone, he is not at all entitled to get any compensation from this Respondent. The pleadings in the claim petition to the effect that the 1[st] Respondent overtaking the mini lorry KL-7-B/5598 is not correct and denied by this Respondent._
5. Though no oral evidence was adduced on either side, on the side of the claimants, Exts.A1 to A12 were produced and marked. The claimant had, besides other documents, produced and marked the certified copy of the FIR in Crime No.824 of 2004 of Kochi City Traffic Police Station as Ext.A1, the scene mahazar as Ext.A2, the inspection reports of the two motor vehicles as Exts.A3 and A4 and a copy of final report filed in Crime No.824 of 2004 of Kochi City Traffic Police Station as Ext.A7. Even without the third respondent insurer adducing evidence to prove that the accident took place as contended by it in paragraph 3 of its written statement, the tribunal entered a finding that the claimant in O.P.(M.V.) No.1033 of 2004, who was driving the mini lorry bearing Reg.No.KL-8/B 5598 was negligent. O.P.(M.V) No.1033 of 2004 was accordingly dismissed. In view of the said
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finding, on the ground that the owner, driver and the insurer of the mini lorry bearing Reg.No.KL 8-B/5598 are not on the party array, O.P.(M.V.) No.1046 of 2004 was also dismissed. The claimants have, as stated above, aggrieved thereby, filed these appeals.
6. We heard Sri.E.C.Poulose, learned counsel appearing for the appellants and Smt.K.S.Santhi, learned counsel appearing for the third respondent insurer. We have also gone through the pleadings and the materials on record. The claimants had in the claim petition specifically averred that the accident took place on account of the negligence of the first respondent, namely the driver of the mini lorry bearing Reg.No. KL-7/AD-9739. The police records support the said averment. Notwithstanding that fact, by a process of reasoning, even without any evidence being adduced by the third respondent insurer, in support of its contention that the accident took place on account of the negligence of the claimant in O.P.(M.V.) No.1033 of 2004, the tribunal held that the accident took place on account of his negligence. A Division Bench of this court has in _**New India Assurance Co. Ltd. vs. Pazhaniammal**_ [2011 (3) KLT 648] held that as a general rule, it can be accepted that 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. It was held that if any of the parties do not accept such charge sheet, the burden must be on
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such party to adduce evidence. This court also held that if the tribunal feels that the charge sheet is collusive, it can record that the charge sheet cannot be accepted and call upon the parties at any stage to adduce oral evidence of the accident and the alleged negligence. In the case on hand, the third respondent insurer had no case that the charge sheet is collusive though it had contended that the accident took place on account of the negligence of the claimant in O.P.(M.V.) 1033 of 2004. The tribunal has also not entered a finding that charge sheet is collusive. For the reasons best known to it, the insurer did not raise such a plea. It did not also adduce any evidence to substantiate, the case set out by it in paragraph 3 of the written statement that the accident took place on account of the negligence of the claimant in O.P.(M.V.) No.1033 of 2004. In the absence of a case for the insurer or for the other respondents before the tribunal that Ext.A7 charge sheet is collusive and in the absence of any evidence on the side of the third respondent or the other respondents before the tribunal to the prove that the accident had taken place as alleged by the third respondent in its written statement, we are of the opinion that the tribunal erred in proceeding to analyse the damage caused to the two vehicles and to hold, merely for the reason that the lorry which had capsized to a valley had more damage, the driver of the lorry, viz. the claimant in O.P.(M.V.) No.1033 of 2004 was responsible for the
## M.A.C.A.No.1111 & 1100 of 2010
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accident. The tribunal also held that the Sub Inspector has not meticulously analysed the materials before him to decide as to, who was guilty of rash and negligent driving. The tribunal also presumed that the police usually file charge sheets in favour of persons who have suffered injuries in motor accidents. In the light of the law laid down by this court in _**New India Assurance Co. Ltd. vs.**_ **Pazhaniammal** (supra), the view taken by the tribunal cannot in our opinion be sustained. The attention of the tribunal was not drawn to the said decision wherein it has been unequivocally stated that in the absence of any case for the parties to the effect that the charge sheet is collusive, the charge sheet can be accepted as prima-facie evidence of negligence for the purpose of a claim under section 166 of the Motor Vehicles Act, 1988. In the view that we have taken, we are of the considered opinion that the impugned award cannot be sustained.
For the reason stated as above, we allow these appeals, set aside the impugned award and remand O.P.(M.V.) Nos.1033 of 2004 and 1046 of 2004 to the Motor Accidents Claims Tribunal, Perumbavoor for fresh trial and disposal. The Motor Accidents Claims Tribunal shall dispose of the claim petitions afresh after notice to respondents 1 and 2. The claimants and the third respondent insurer shall appear through counsel before the tribunal on 9.10.2016. The tribunal shall on that day issue notice to respondents 1 and 2 in the
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respective claim petitions and try and dispose of the claim petitions afresh after affording both sides an opportunity to adduce evidence, expeditiously and in any event within six months from 9.10.2016. The parties shall suffer their respective costs.
## **P.N.RAVINDRAN JUDGE**
## **A.MUHAMED MUSTAQUE**
**JUDGE**
**jm/**
