## `IN THE HIGH COURT OF KERALA AT ERNAKULAM`
## `PRESENT`
## `THE HONOURABLE MRS. JUSTICE MARY JOSEPH`
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FRIDAY, THE 20[TH] DAY OF JANUARY 2023 / 30TH POUSHA, 1944
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MACA NO. 441 OF 2011
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AGAINST THE AWARD DATED 01.11.2010 IN O.P(M.V) NO.1506/2006 OF
MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR
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## `APPELLANTS/PETITIONERS:`
- `1 K.G.ANTONY, AGED 63 YEARS, S/O.GEORGE, KALATHIL VEEDU, RAIL ROAD, ALUVA KARA, ALUVA VILLAGE, ALUVA TALUK.`
- `2 ALICE, AGED 57 YEARS, W/O.ANTONY, KALATHIL VEEDU, RAIL ROAD, ALUVA KARA, ALUVA VILLAGE, ALUVA TALUK.`
- `3 REKHA, AGED 37 YEARS, D/O.ANTONY, KALATHIL VEEDU, RAIL ROAD, ALUVA KARA, ALUVA VILLAGE, ALUVA TALUK.`
- `4 RESHMI, AGED 30 YEARS, D/O.ANTONY, KALATHIL VEEDU, RAIL ROAD, ALUVA KARA, ALUVA VILLAGE, ALUVA TALUK.`
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BY ADVS.SRI.P.K.SAJEEV
SRI.CIBI K.CHERIAN
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## `RESPONDENTS/RESPONDENTS:`
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1ALIYAR, S/O.ADBUL RAHIMAN,
PALLIPARAMBIL HOUSE, MUDICAL P.O., PERUMBAVOOR,
ERNAKULAM DISTRICT, PIN - 683 547.
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2THE NEW INDIA ASSURANCE CO.LTD.
ST.JOSEPH'S BUILDING, A.M.ROAD, PERUMBAVOOR,
PERUMBAVOOR P.O., PIN - 683 542.
BY ADV. SRI.SURESH KUMAR
R2 BY ADVS.SRI.LAL K.JOSEPH
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SRI.ANZIL SALIM STANDING COUNSEL, NEW INDIA
ASSURANCE COMPANY LTD.
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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
20.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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M.A.C.A.No.441 of 2011
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## **`JUDGMENT`**
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Dated this the 20[th] day of January, 2023
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This appeal is directed against an award passed by Motor Accidents Claims Tribunal, Perumbavoor (for short ‘the Tribunal’) on 01.11.2010 in O.P.(MV) No.1506/2006.
2. For the sake of clarity, the parties to this appeal will hereinafter be referred to as the Petitioners and respondents 1 and 2 in accordance with their status before the Tribunal.
3. By the impugned award the Tribunal has dismissed the claim petition filed by the petitioners who are the legal representatives of the rider of the motorcycle bearing Registration No.KL-8/L-6399, who died following the serious injuries sustained by him in a motor accident occurred at 11.45 p.m. on 09.08.2004. Before the Tribunal the claim petition was filed by them as O.P.(MV) No.1506/2006 alleging that death of Mr.Bobby was resulted from a motor accident caused due to the involvement of a Tata Lorry bearing Registration No.KLF-9441 and the rash and negligent driving by it’s driver. The petitioners have also raised a contention before the Tribunal
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that Mr.Bobby sustained fatal injuries in the motor accident and died on account of those. The total compensation claimed by the petitioners was Rs.10,00,000/-. The driver-cum-owner of the lorry and it’s insurer were arrayed as respondents 1 and 2 in the above Original Petition.
4. 1[st] respondent remained ex-parte. The 2[nd] respondent had filed written statement admitting insurance coverage of the Tata Lorry bearing Registration No.KLF-9441 as on date of accident under the policy issued. It was contended that the driver of the lorry was not rash and negligent in driving the same at the relevant time, that the accident was occurred due to the rash and negligent riding of the motorcycle by its rider who died due to the injuries sustained and that the compensation paid under various heads is disproportionate and inadequate.
5. Before the Tribunal, evidence was adduced by both sides. On the side of the petitioners, Exts.A1 to A5 were marked and on the side of the 2[nd] respondent, Ext.B1 was marked. The 2[nd] respondent had also obtained permission of the Tribunal to contest the Original Petition by raising all
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statutory grounds after applying under Section 170 of the Motor Vehicles Act, 1988 (for short ‘the M.V.Act’). The Tribunal appreciated the entire evidence and arrived at a finding that the petitioners failed to prove negligence on the part of the driver of the lorry. The Tribunal has arrived at a finding after appreciation of the evidence on record that the motor accident was occurred solely due to the rash and negligent riding of the motorcycle by its rider, who is none other than Mr.Bobby, who died in the motor accident. Based on the above finding, the Original Petition filed by the petitioners seeking compensation was dismissed.
6. It is pertinent to note that on the side of the petitioners, 5 documents have been marked in evidence which are nothing but certified true copies of the FIR in Crime No.784/2004 of Aluva Police Station, the Scene Mahazar, the Charge Sheet and the Vehicle Inspection reports of the motorcycle as well as the lorry. On going by Exts.A1 the FIR, it is found that the same was registered immediately after the motor accident. It is noticed from Ext.A3, the final report that a charge sheet was laid by Aluva police on completion of the
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investigation in the above crime, chargesheeting the driver of the lorry for rash and negligent driving. Despite the availability of evidence as above, the Tribunal has observed in paragraph
## 12 that:
“ I have considered the above said contention in the light of the materials in Ext.A2 mahazar. In the scene mahazar it is specifically stated that at the spot of accident there are 5 humps across the tar portion of the road. The road was straight for about 30 meters to northwards and 40 meters to southwards. The spot of accident is 90 cms east from western tar end. The scene mahazar indicate that the spot of accident is at the hump portion of the road. The damages of the vehicles noted in Ext.A4 and A5 A.M.V.I.’s report, support the contention of the second respondent. The motor cycle got very heavy damages, whereas the lorry has only a minor damage. The inward bending of stop board at the rear left side shows that there was a heavy hit on the rear left side of the lorry. The A.M.V.I’s reports support the contention of the second respondent. It is true that after investigation the police filed charge sheet against the first respondent. At this juncture it is to be remembered that the motor cycle was not having any insurance policy at the time of accident.
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Admittedly the police registered petty crime against the owner of the motor cycle. Due to the influence, police twisted the documents and manipulated the facts so as to indicate that the accident occurred due to rash and negligent driving of the lorry by the first respondent. But the damages contained in A.M.V.I’s report and materials contained in Ext.A2 scene mahazar support the contention of the second respondent. The rider failed to keep a safety distance from the ongoing lorry. Moreover, it cannot be expected that while passing through the hump at road, the lorry stopped suddenly by applying sudden brake. The version of the petitioner does not derive support from the materials on record. So I find that the accident occurred solely due to the rash and negligent riding of the motor cycle by the deceased. Thus this issue is found.”
7. It is pertinent to note that the Tribunal assumed certain aspects from the evidence available. The Tribunal has overlooked Exts.A1 and A3 while arriving at such assumptions. It is pertinent to note that the assumptions reached by the Tribunal were totally devoid of any merits. When a final report chargesheeting the driver of the lorry was laid by the
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investigating officer after concluding investigation in a crime registered with reference to a motor accident without any delay, the Tribunal ought not to have reached a conclusion as above. It is true that a precise contention has been taken by the 2[nd] respondent about rash and negligent riding of the motorcycle by its rider in the written statement filed by it in the Original Petition. But raising of a mere contention will not help the 2[nd] respondent to get himself avoided from liability to indemnify the insured and to have the liability fastened on the rider of the motor cycle. The 2[nd] respondent has to adduce cogent evidence to convince the Tribunal that, Ext.A3 final report was laid as a result of collusion among the petitioner and the Investigating Officer of Crime No. 784 of 2004. The Investigating Officer was not summoned and examined. Other evidence was also not let in to doubt the genuineness of Ext.A3.
8. In the above circumstances, the Tribunal is erred and unjustified in drawing assumptions as dealt with in paragraph 12 extracted above. The finding of the Tribunal being wrong is liable only to be set aside.
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## **`M.A.C.A.No.441 of 2011`**
In the result, the appeal is allowed. The impugned award is set aside. Original Petition No.1506/2006 is remitted back to the Tribunal for re-consideration of the evidence already on record and to pass a fresh award, untrammelled by the observations made by this Court, and to pass a fresh award within a period of two months from the date on which a certified copy of this judgment is received. The Tribunal shall decide the issues on hand, in the light of the dictum laid down by this Court in New India Assurance Co.Ltd . v . Pazhaniammal [2011 (3) KLT 648] .
Sd/- **MARY JOSEPH JUDGE**
MJL
