Gireesh Kumar v. Syamala, Arunkumar, Kiran, Pankajakshi and IFFCO Tokio General Insurance Company Ltd.

1 MACA No.2959 of 2016 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 29[TH] DAY OF NOVEMBER 2021 / 8TH AGRAHAYANA, 1943** ## **MACA NO. 2959 OF 2016** **AGAINST THE ORDER/JUDGMENT IN OPMV 1601/2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,TRIVANDRUM** ## **APPELLANT/S:** GIREESH KUMAR,6/172, THEKKETTITHARA VEEDU, VAZHAMUTTAM, THIRUVALLAM, THIRUVANANTHAPURAM. BY ADVS. SRI.C.S.MANILAL SRI.S.NIDHEESH ## **RESPONDENT/S:** 1 SYAMALA,W/O.LATE VENUGOPALAN NADAR, AMBADI, TC 7/1390(2) VETTAMUKKU P.O., TRIVANDRUM. 2 ARUNKUMAR,S/O.LATE VENUGOPALAN NADAR, AMBADI, TC 7/1390(2) VETTAMUKKU P.O., TRIVANDRUM. 3 KIRAN,S/O.LATE VENUGOPALAN NADAR, AMBADI, TC 7/1390(2) VETTAMUKKU P.O., TRIVANDRUM. 4 PANKAJAKSHI,M/O.LATE VENUGOPALAN NADAR, THAZHATHUVILAKOM PUTHEN VEEDU TC 21/1755, ELANKAM, NEUNKADU KARAMANA P.O., TRIVANDRUM. 5 THE IFFCO TOKIO GENERAL INSURANCE COMPANY LTD. REPRESENTED BY ITS MANAGER, XL/1485, SATGAMAYA, 1 FLOOR, M.G.ROAD ERNAKULAM. BY ADV SRI.R.T.PRADEEP R1 TO R4 BY ADV.P.JACOB MATHEW R5 **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.11.2021, THE COURT ON THE** 2 MACA No.2959 of 2016 ## **SAME DAY DELIVERED THE FOLLOWING:** ## **C.S.DIAS, J.** ## **====================== MACA No.2959 of 2016 ====================== Dated this the 29[th] day of November, 2021.** ## **JUDGMENT** The appellant was the first respondent in OP(MV) 1601/2009 on the file of the Motor Accident Claims Tribunal, Thiruvananthapuram. The respondents 1 to 4 were the petitioners and the fifth respondent was the second respondent/insurer before the Tribunal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of Venugopalan Nadar (deceased), the husband of the first petitioner, father of the petitioners 2 and 3 and son of the fourth petitioner. It was their case that, on 20.3.2009, while the deceased was walking along the Kovalam-Thiruvallam bye pass road, 3 MACA No.2959 of 2016 a motor cycle bearing registration No.KL-01/AG 3786 (motor cycle), driven by the rider of the motor cycle in a rash and negligent manner, hit the deceased. The motor cycle was owned by the first respondent and insured with the second respondent. The deceased was aged 59 years at the time of his death and was earning a monthly income of Rs.5,000/-. The petitioners were the dependents of the deceased. Hence, they claimed compensation from the respondents. 3. The first respondent had filed a written statement contending that there was no negligence on the part of the rider of the motor cycle. On the alleged date of accident, the vehicle was driven by the colleague of the first respondent named, Thivan, S/o.Ismail, who was holding a valid driving licence. The first respondent contended that the compensation claimed was excessive. The first respondent disputed the age, income and occupation of the deceased. The first respondent prayed that the claim petition be dismissed. 4. The second respondent had filed a written 4 MACA No.2959 of 2016 statement admitting that the motor cycle had a valid insurance policy. Nevertheless, the second respondent contended that the first respondent violated the insurance policy conditions, as the rider of the motor cycle had no valid driving licence. Hence, the second respondent prayed for exoneration of its liability. 5. The petitioners produced and marked Exts A1 to A6 in evidence. The first respondent produced and marked Exts B1 to B3. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioners to recover from the second respondent an amount of Rs.6,24,000/- with interest and proportionate costs. However, due to the violation of the insurance policy conditions, the second respondent was directed to pay the compensation amount and permitted to recover the same from the first respondent. 7. Aggrieved by the direction in the impugned award, permitting the second respondent to recover the compensation amount from the first respondent, the first 5 MACA No.2959 of 2016 respondent is in the appeal. 8. Heard; Sri.C.S.Manilal, the learned counsel appearing for the appellant/first respondent, Sri.R.T Pradeep, the learned counsel appearing for the respondents 1 to 4/petitioners 1 to 4 and Sri.P.Jacob Mathew, the learned counsel appearing for the second respondent/fifth respondent. 9. The sole question that arises for consideration in the appeal is whether the direction in the impugned award, permitting the second respondent to recover the compensation amount from the appellant/first respondent is sustainable in law or not. 10. The specific contention of the second respondent in its written statement was that the rider of the motor cycle did not hold a valid driving licence. The appellant had set up a plea that the motor cycle was driven by one Thivan, who held a valid driving licence. The petitioners had produced Ext A1 report of the City Traffic Police, Thiruvananthapuram in crime No.829/2009, which substantiates that the accident occurred due to the 6 MACA No.2959 of 2016 negligence of Gireesh Kumar, the rider of the motor cycle. It is also shown in Ext A1, that the motor cycle was released on kychit to the appellant. Surprisingly, the appellant himself had produced Ext B2 judgment in CC 768/2009 of the Court of the Judicial First Class MagistrateI, Neyyattinkara, which shows that, pursuant to Ext A1 final report, Gireesh Kumar was acquitted by the above Court. Therefore, the pleading in the written statement of the appellant that it was Thivan who rode the motor cycle, is wrong and incorrect in view of the findings in Ext A1 final report and B2 judgment. 11. This Court in **New India Assurance Co.Ltd v. Pazhaniammal – [(2011) (3) KLT 648]** has categorically held that, the production of the charge-sheet is prima facie sufficient evidence of negligence for the purpose of claim under Sec.166 of the Motor Vehicles Act. The charge-sheet can be accepted as evidence of negligence against the accused driver. If any party does not accept the charge-sheet, the burden is on such party to adduce oral evidence and discredit the charge-sheet. 7 MACA No.2959 of 2016 12. In the present case, the appellant has not let in any evidence to substantiate his assertion that the motor cycle was driven by Thivan, who had a valid driving licence. Instead, the appellant had proved that the motor cycle was driven by Gireesh Kumar, who did not hold a valid driving licence. Moreover, in view of Ext B2 judgment, it is proved that it was Gireesh Kumar, who drove the motor cycle. Therefore, in the absence of production of driving licence of Gireesh Kumar, I do not find any error or illegality in the conclusion arrived at by the Tribunal, that the appellant had violated the insurance policy conditions, by permitting a person without effective and valid driving licence to drive the motor cycle. The appeal is devoid of any merits and is only liable to be dismissed. In the result, the appeal is dismissed. In the peculiar facts and circumstances of the case, the parties shall bear their respective costs. SD/- 8 MACA No.2959 of 2016 sks/29.11.2021 **C.S.DIAS, JUDGE**