K.J. Jestine v. Prasad K, HDFC Chubb General Insurance Co. Ltd, The Managing Partner, M/S S.Gopala Kamath (Cochin), Oriental Insurance Co. Ltd. MACA No.1552 of 2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 5TH DAY OF SEPTEMBER 2013/14TH BHADRA, 1935** ## **MACA.NO. 1552 OF 2010 ( )** ## **-------------------------------------------O.P(MV) NO.1609 OF 2005, MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT(S)/PETITIONER:** ## **------------------------------------------** ## **K.J.JESTINE,S/O.JOSEPH,AGED 50 YEARS, RESIDING AT KUNNALAKKTTU HOUSE, KARANAKODAM THAMMANAM.P.O, KOCHI.** ## **BY ADV. SMT.R.RANJINI** ## **RESPONDENT(S)/RESPONDENTS:** **-------------------------------------------------** ## **1. PRASAD.K,S/O.AYYAPPAN NAIR, RESIDING AT KOCHUPARAMBIL HOUSE, THRIPUNITHURA ERNAKULAM DISTRICT.** ## **2. H.D.F.C.CHUBB GENERAL INSURANCE CO.LTD, ERNAKULAM.** **3. THE MANAGING PARTNER, M/S S.GOPALA KAMATH (COCHIN), ARANGHATH ROAD, PULLEPADY KOCHI-18.** ## **4. THE ORIENTAL INSURANCE CO.LTD,M.G.ROAD, PALLIMUKKU, KOCHI-16.** **R,R4 BY ADV. SRI.MATHEWS JACOB (SR.) R,R4 BY ADV. SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **“C.R.”** ## **THOMAS P.JOSEPH, J.** **==================================== M.A.C.A. No.1552 of 2010 ==================================== Dated this the 05[th] day of September, 2013** ## **J U D G M E N T** Respondents 1 to 3 are served but there is no response. The 4[th] respondent appears through counsel. 2. The appeal arises from the award dated 01.01.2010 in O.P(MV) No.1609 of 2005 of the Motor Accidents Claims Tribunal, Ernakulam (for short, “the Tribunal”). The appellant claimed that on 24.01.2005 at about 9.10 a.m., while riding a motor cycle bearing No.KL-7/AE-5950 along the PerandurThammanam road and he reached place of the accident, another motor cycle bearing registration No.KL-7/AT-3346 (for short, “the offending vehicle”) came from behind and hit the motor cycle which the appellant was riding. The appellant suffered fracture of the tibia and fibula, underwent inpatient treatment in Lisie Hospital, Ernakulam until 31.01.2005 and continued outpatient treatment. He claimed compensation from the respondents, owner-cum-rider of the offending vehicle and its insurer (respondents 1 and 2, respectively) The 3[rd] and 4[th] respondents are the owner and insurer of the motor cycle which **M.A.C.A No.1552 of 2010** -: 2 :- the appellant was riding at the relevant time. 3. The 3[rd] respondent remained absent in the Tribunal. The other respondents contested the claim petition. They denied the accident. The Tribunal held that the accident as pleaded by the appellant is not proved, that it is a 'self accident' and consequently, without going into the quantum of compensation payable to the appellant, the claim petition was dismissed. Hence the appeal. 4. The learned counsel for the appellant has contended that finding of the Tribunal regarding the accident is erroneous. It is argued that even if the view taken by the Tribunal is accepted, there is an 'accident' arising out of the use of a motor cycle and hence the Tribunal should have awarded compensation. 5. The 4[th] respondent, insurer of the motor cycle which the appellant was riding at the relevant time supported the award. 6. Exhibit A2 is the copy of wound certificate issued to the appellant, from the Lisie Hospital, Ernakulam. Exhibit A2 shows that the appellant was admitted in that hospital on 24.01.2005 with fracture of tibia and fibula. The history and alleged cause of injury stated in Ext.A2 is, **M.A.C.A No.1552 of 2010** -: 3 :- “fall from bike by skid while another motor bike intercepted”. The medical officer has opined in Ext.A2 that the injuries could be caused as alleged. Exhibit A12 shows that intimation was given to the local police from the said hospital on 24.01.2005 obviously because it was a medico legal case. It appears that the police did not record the statement of the appellant or anybody else acquainted with the facts of the case. 7. The appellant preferred Ext.A5, complaint dated 21.05.2005 in the court of learned Judicial First Class Magistrate, Ernakulam. That complaint was forwarded to the police for investigation under Section 156(3) of the Code of Criminal Procedure (for short, “the Code”). Based on that complaint, the police registered a case on 27.05.2005. Exhibit A1 is the copy of the first information report. P.W3 investigated the case and submitted Ext.A3, final report charging the 1[st] respondent for offences punishable under Sections 279 and 338 of the Indian Penal Code for causing the accident by riding the offending motor cycle rashly and negligently. Exhibit A4 is the copy of scene **M.A.C.A No.1552 of 2010** -: 4 :- mahazar and Exts.A6 and A7 are the copy of mahazars prepared by the police for the vehicles (allegedly) involved in the accident. Exhibit A13 is the copy of judgment in the said case which shows that the 1[st] respondent pleaded guilty to the charge against him, was convicted and sentenced to pay fine. 8. The appellant gave evidence as P.W1 and testified to his case regarding the accident. He claimed that the offending vehicle came from behind and hit the motor cycle which he was riding. P.W.2 is a witness to the accident. He supported the appellant. 9. The Tribunal referred to the history and cause of injury stated in Ext.A2, observed that name of the rider of the offending vehicle as stated by the appellant in his evidence does not tally with the name of the 1[st] respondent who was charge sheeted by the police in the connected criminal case and disbelieved PW1. PW2 was disbelieved as his name is not mentioned by the appellant as a witness to the accident in Ext.A5, private complaint. 10. Even if the version regarding cause of injury stated in Ext.A2, copy of wound certificate is to be accepted, I am inclined to think that there is an 'accident' arising out of the use **M.A.C.A No.1552 of 2010** -: 5 :- of motor vehicle. What is stated in Ext.A2 as cause of injury is, “fall from bike by skid while another motor bike intercepted” 11. The Tribunal referring to the dictionary meaning of the word “intercepted” appearing in Ext.A2 said that it meant “seize”, “catch”, “stop” or “check” and that word also did not support the case pleaded by the appellant. 12. There is no reason to think that the medical officer who prepared the wound certificate has used the expression “intercepted” with all its legal connotations given in the legal dictionaries or after checking its meaning in the English Dictionary. The said expression need only be understood as meaning “intervened” meaning thereby that when the appellant was riding a motor cycle, the offending vehicle intervened, the appellant's vehicle skidded and he fell down. To claim compensation, what is required is that the accident should arise from the use of the motor vehicle. Actual hitting of two or more vehicles or vehicle hitting the victim is not absolutely necessary. If the offending vehicle was driven in such a way that it put ## **M.A.C.A No.1552 of 2010** ## -: 6 :- another person in sudden danger and he is thereby perplexed or agitated, he cannot be expected to exercise due care. If in that perplexed or agitated state of mind he does something or omits to do something which normally he is expected to do or not to do and consequently he suffers injury, he is entitled to claim and get compensation. ## 13. In **London Steamboat Company v. Bywell** **Castle** ([1878] 9 Probate Division 219) it was held that where one ship has by wrong manoeuvres placed another ship in a position of extreme danger, that other ship will not be held to blame if she has done something wrong, and has not been manoeuvred with perfect skill and presence of mind. This rule has since then been known as the “Bywell Castle Rule”. It means that where a person is put in sudden danger, he cannot be expected to exercise the due care, skill, coolness and wisdom which a man of ordinary prudence would have taken. The person or the plaintiff is perplexed or agitated by the act of the defendant. What is done or omitted to be done in the agony of the moment cannot fairly be treated as negligence (See also _**Jang Bahadur Singh v. Sunder Lal Mandal and Other**_ s - AIR 1962 Patna 258). Though, while dealing with a case of contributory **M.A.C.A No.1552 of 2010** -: 7 :- negligence, the Supreme Court in **Pramodkumar v. Karmasey Kunvargi Tak** (2003 [1] KLT SN 34 Case No.47) held, “It has accepted as a valid principle by various judicial authorities that where, by his negligence, if one party places another in a situation of danger, which compels that other to act quickly, in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which with the benefit of hinsight, is shown not to have been the best way out of the difficulty.” Thus if the intervention of the motor cycle the 1[st] respondent was riding was such that it put the appellant in fear of sudden danger and the appellant in a perplexed or agitated mood and due to its agony did or omitted to do something, then, he cannot be said to be negligent. Exhibit A2, if accepted shows that due to the offending vehicle intervening, the appellant had to do something to exercise himself of danger and in that process, his vehicle skidded. The interception or intervention (as the case **M.A.C.A No.1552 of 2010** -: 8 :- may be) of the offending vehicle was due to the rashness or negligence of the 1[st] respondent. In that situation it can very well be said that the appellant suffered injuries in an accident arising out of the use of a motor vehicle. Hence he is entitled to get compensation even if one were to accept what is stated in Ext.A2. The Tribunal has not considered this aspect. 14. In the claim petition the appellant has stated that the offending vehicle hit the motor cycle which the appellant was riding, from behind. The Tribunal held that the evidence of P.W.2 cannot be believed for the reason that he does not figure as a witness to the accident in Ext.A5, complaint. It is not as if the Investigating Officer could not come across a witness to the accident not cited in the private complaint. That was no good reason, by itself, to reject the evidence of P.W2 was rejected without valid reason. 15. Exhibit A1 shows that the case was registered only on 27.05.2005 though the accident (allegedly) occurred on 24.01.2005. The Tribunal held that there is no explanation for the delay in filing Ext.A5, private complaint. But the reason for the delay is clear from the documents produced. Exhibits A2 and A8 show that the appellant was undergoing treatment at the Lisie **M.A.C.A No.1552 of 2010** -: 9 :- Hospital, Ernakulam till 31.01.2005. The injuries the appellant suffered are fracture of the tibia and fibula. It is likely that for the fracture to unite (if it happened), it took a few months. One does not expect the appellant in that situation to rush to the police station to comply with the statutory duty to inform the police about the accident. Exhibit A12 shows that intimation was given to the police from the hospital on 24.01.2005 itself. If the police did not respond to that intimation it was their fault and not of the appellant. He may have been under the impression that as the police have been duly intimated about the accident, they will take care of it. 16. P.W.3 investigated the criminal case, concluded that the accident occurred due to the negligence of the 1[st] respondent and charge sheeted the 1[st] respondent as per Ext.A3, final report. The 1[st] respondent pleaded guilty to the said charge, was convicted and sentenced to pay fine. Assuming that the judgment of the criminal court is not binding on the Tribunal, that the 1[st] respondent pleaded guilty to the police charge is revealed from Ext.A3 which is relevant in the Tribunal and binding on the 1[st] respondent. The 1[st] defendant could not contend that he was not rash or negligent in riding the motor cycle. Also, in the absence of **M.A.C.A No.1552 of 2010** ## -: 10 :- any special reason there was no ground to reject Ext.A3, final report which disclosed that the accident occurred in the manner pleaded by the appellant. 17. The Tribunal proceeded to say that the 1[st] respondent is 'Prasad' but the appellant, when examined as P.W.1, stated the name of the offending rider as 'Pradeep'. Much weight need not be given to that discrepancy as it is not shown that the rider was closely acquainted with the appellant and in view of the similarity in the names. Some mistake in referring to the name was quite possible. ## 18. The Supreme Court, in **N.K.V. Bros. (P) Ltd. v. M.Karumal Ammal and Others** ([1980] 3 SCC 457) has held that in accident cases, the Tribunal should not succumb to technicalities, niceties and mystic maybes and that innocent victims should not suffer and owners and drivers should not escape liability merely because there is some doubt here or obscurity, there. Benefit of doubt, if any regarding the cause of accident should go to the accident victim. I am constrained to say that the Tribunal has not approached the evidence of the appellant in the proper perspective. 19. I am inclined to held from the evidence on record **M.A.C.A No.1552 of 2010** ## -: 11 :- that the appellant has proved that the accident occurred in the manner claimed by him in the claim petition. 20. So far as negligence is concerned, there is the evidence of P.W1. Coupled with that, the 1[st] respondent has pleaded guilty to the charge which prima facie must be accepted, in the absence of any disabling reason. Hitting from behind is prima facie evidence of negligence. In the circumstances I hold that the accident occurred due to the negligence of the 1[st] respondent. 21. Since the Tribunal has not decided other questions involved in the case, I am constrained to send the case back to the Tribunal for a decision on those questions. Resultantly, the appeal is allowed by way of remand as under: (i) The award dated 01.01.2010 in O.P(MV) No.1609 of 2005 of the Motor Accidents Claims Tribunal, Ernakulam is set aside. (ii) It is found that the appellant sustained injuries in an accident on 24.01.2005 arising out of the use of motor cycle bearing Reg. No.KL-7/AT-3346 and that the said accident occurred due to the negligence of the 1[st] respondent. ## **M.A.C.A No.1552 of 2010** -: 12 :- (iii) Dismissal of the claim petition against respondents 3 and 4 is confirmed. (iv) The Tribunal is directed to decide other questions involved in the case. (v) The appellant and respondents 1 and 2 shall appear in the Tribunal on 10.10.2013. (vi) In case respondents 1 and 2 do not appear in the Tribunal, notice shall be issued for their appearance. (vii) Parties shall suffer their costs in the appeal. All Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv