MACA NO. 1710 OF 2012

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 16[TH] DAY OF JANUARY 2024 / 26TH POUSHA, 1945 ``` ## **`MACA NO. 1710 OF 2012`** ## **`AGAINST THE AWARD DATED 31.03.2012 IN OP(MV) 259/2009 OF MOTOR`** ## **`ACCIDENT CLAIMS TRIBUNAL, MANJERI`** ## **`APPELLANT/PETITIONER:`** ``` M.P.FAISAL S/O.MOIDEEN KURIKKAL, MANCHERI PUTHUSSERI HOUSE, NELLIKUTH P.O, MANJERI, MALAPPURAM DISTRICT. ``` ``` BY ADV SRI.P.VENUGOPAL (1086/92) ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1K.HYDROSS S/O.KOYAKUTTY HAJI, KUTTERI HOUSE, POOLAMANNA P.O, MANJERI VIA, MALAPPURAM DISTRICT. PIN 679 327. 2UNITED INDIA INSURANE COMPANY LIMITED ARAFA BUILDING, COURT ROAD, MANJERI P.O, MALAPPURAM DISTRICT. PIN 676 121. 3AYISHA W/O.LATE CHEKKU HAJI 4GAFOOR S/O.LATE CHEKKU HAJI 5SAIDALAVI S/O.LATE CHEKKU HAJI 6KOYA S/O.LATE CHEKKU HAJI 7ASSHRAF S/O.LATE CHEKKU HAJI 8SAKEENA D/O.LATE CHEKKU HAJI. ``` ``` MACA NO. 1710 OF 2012 ``` ``` 2 ``` ``` [RESPONDENTS 3 TO 8 ARE RESIDING AT KUTTERI HOUSE, POOLAMANNA P.O, MANJERI VIA, MALAPPURAM DISTRICT. PIN 679 327.] ``` ``` BY ADVS. SMT.DEEPA GEORGE ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1710 OF 2012 ``` ``` 3 ``` ## **`JUDGMENT`** The appellant is the petitioner in O.P.(M.V.) No.259/2009 on the files of the Motor Accident Claims Tribunal, Manjeri. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 26.08.2005. 2. The case of the appellant was that the accident occurred, when the motorcycle ridden by him was hit by a jeep driven by the 1[st] respondent in a rash and negligent manner. The 2[nd] respondent in the claim petition was the owner of the said jeep, who passed away during the pendency of the claim petition, and as his legal heirs, supplementary respondents 4 to 9 in the claim petition/respondents 3 to 8 herein were impleaded. The said vehicle was insured with the 3[rd] respondent in the claim petition/2nd respondent herein. The appellant was aged 18 years at the time of the accident and he sustained very serious injuries. The claim petition was submitted in such circumstances seeking compensation. 3. The 1[st] respondent though appeared through counsel, ``` MACA NO. 1710 OF 2012 ``` ``` 4 ``` did not file any written statement. The respondents 4 to 9 in the claim petition/respondents 3 to 8 herein who are the legal heirs of the 2[nd] respondent were set ex parte. The 3[rd] respondent in the claim petition/2nd respondent herein alone contested the matter by filing a written statement wherein they admitted the existence of valid insurance policy for the jeep. However, they seriously disputed the accident as according to them the jeep was not involved in the accident. They highlighted the delay in registering the FIR and also the delay in filing the claim petition. According to the 3[rd] respondent therein/2nd respondent herein the accident occurred when the motorcycle ridden by the appellant himself met with an accident. They sought dismissal of the claim petition in such circumstances. 4. The evidence in this case consists of oral testimonies of PWs 1 and 2, and as documentary evidence, Ext.A1 to A20 series were marked. The Medical Board report of the appellant was marked as Ext.X1. From the side of the respondents, Exts.B1 and B2 series were marked. After the trial, the Tribunal came to the conclusion that the appellant could not establish the involvement of ``` MACA NO. 1710 OF 2012 ``` ``` 5 ``` the jeep, and it was found that the accident occurred due to the negligence of the appellant himself. Accordingly, the claim petition was dismissed. This appeal is submitted by the appellant in such circumstances challenging the said finding. 5. Heard Sri.P. Venugopal, learned counsel appearing for the appellant and Smt.Deepa George, the learned counsel appearing for the 2[nd] respondent herein/3rd respondent in the claim petition. 6. The learned counsel for the appellant raises various contentions challenging the finding of the Tribunal holding that the jeep was involved in the accident. On the other hand, the learned counsel for the Insurance Company would oppose the aforesaid contention by pointing out that, detailed discussions have been made by the Tribunal, justifying the reasons on which the order of dismissal was passed and no interference is required. 7. I have carefully gone through the records. While dismissing the claim petition, the Tribunal took note of various aspects. The crucial aspect to be noticed is that, even though the accident occurred on 26.08.2005, the FIR was registered only after ``` MACA NO. 1710 OF 2012 ``` ``` 6 ``` two years i.e. on 01.11.2007. Ext.A2 was the wound certificate of the appellant wherein the cause of injury was shown as “RTA – fall from bike near Vellangad at about 3.30 p.m. on 26.08.2005”. The involvement of any other vehicle is conspicuously absent in the said wound certificate. Ext.A4 is the outpatient record of Amala Institute of Medical Sciences, Thrissur. It is to be noted that immediately after the accident, the appellant was taken to KMH Hospital, Manjeri, where the wound certificate was prepared. Thereafter, he was taken to Al-shifa Hospital Perinthalmanna. Ext.A4 would indicate that from there, he was taken to Amala Institute of Medical Sciences Thrissur. In Ext.A4, the initial entry as to the cause of the accident was shown as alleged RTA on 26.08.2005. However, after completing the entries relating to the admission of the appellant to the hospital, at the bottom of the outpatient record, a further entry is seen in a different handwriting, to the effect that the jeep hit the bike at 4 p.m. on 26.08.2005 at Pandikkad. The Tribunal viewed this aspect as a suspicious entry, and therefore, the same was not acted upon. Besides the same, the other evidence available on record is the deposition of PW1 ``` MACA NO. 1710 OF 2012 ``` ``` 7 ``` and PW2. PW1 was the appellant himself and gave evidence in tune with his version of the accident as stated in the claim petition. As far as PW2 is concerned, he claimed to be an eyewitness to the accident, and in his deposition, he stated that he was unable to recall the number of the jeep and he was not aware of the details of the person who was driving the vehicle as well. Ext.A19 is the final report submitted by the Police after conducting an investigation, wherein the 1st respondent, the driver of the jeep, was implicated as an accused. However, on perusal of the copy of the final report produced, it is not clear whether PW2 was one of the witnesses cited by the prosecution. Another crucial aspect to be noticed is that, even according to the appellant, when the accident occurred, he was riding the motorcycle along with another person as a pillion rider. According to the appellant, the pillion rider also sustained injuries, and the said person was not seen or examined. The Tribunal did not accept the final report and also the case advanced by the appellant, in such circumstances. 8. After carefully going through the records, the said finding cannot be found faulty, as the evidence now adduced by ``` MACA NO. 1710 OF 2012 ``` ``` 8 ``` the appellant is not sufficient to hold that the accident occurred in the manner claimed in the claim petition. There are several loopholes in the said case. First of all, there is a huge delay in filing the FIR. As mentioned above, even though the accident occurred on 26.08.2005, Ext.A1 FIR was registered on 01.11.2007. The entry in the wound certificate, which is Ext.A2 as to the cause of injury, was shown as RTA – fall from the bike, which does not indicate the involvement of any other vehicle. In Ext.A4, the copy of the outpatient record maintained by the hospital in which he was subsequently treated, contains an initial entry showing the cause of the accident as RTA only, but later, an additional entry is seen made in a different handwriting, mentioning the involvement of the jeep. The person who issued the said certificate was also not examined. Moreover, the claim petition itself was filed three years after the accident. The other evidence available is the highly interested version of PW1. As far as the evidence of PW2 who claimed to be an eyewitness, is concerned, he could not recall the number of the jeep involved in the accident, and he was not aware of the jeep as well. When all these aspects are taken into ``` MACA NO. 1710 OF 2012 ``` ``` 9 ``` consideration, the finding of the Tribunal, holding that the appellant failed to prove the involvement of the jeep in the accident, cannot be found fault with. It is also to be noted that the crucial witness in this case was the pillion rider who claimed to have sustained injuries in the said accident, and the said person was not examined. The learned counsel for the appellant points out that he was not available at the time of the evidence and, therefore, he could not be examined. 9. The learned counsel for the appellant placed reliance upon the decision rendered by this Court in **New India Insurance Company Ltd. v. Pazhaniyammal and others [** 2011 (3) KLT 648] wherein it was held that in the absence of any contra evidence, the conclusions arrived at by the Police in the final report has to be taken as the prima facie evidence for deciding the question of negligence. Of course, in this case it is true that the respondents did not adduce any contra evidence and Ext.A19 final report is against the 1[st] respondent. However, on carefully going through the observations made in **Pazhaniyammal’s** case, it cannot be held that, the principles laid down in the said decision is to the effect ``` MACA NO. 1710 OF 2012 ``` ``` 10 ``` that the final report submitted by the Police has to be accepted by the Tribunal in every case in the absence of contra evidence. In paragraph 8 itself the said aspect has been clarified which reads as follows: _“8. We do not intend to say that collusive charge-sheets need be accepted. Wherever on the facts of a given case the Tribunals feel that the police charge - sheet does not satisfy their judicial conscience, the Tribunals can record that the charge - sheet cannot be accepted and can call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged negligence. In such a case, the issue of negligence must be decided on the other evidence, ignoring the charge - sheet.”_ Here in this case, as rightly pointed out by the 2[nd] respondent herein/3rd respondent in the claim petition, there are certain factual circumstances, which evokes serious suspicion as to the manner in which the accident claimed to have been occurred as per the claim petition submitted by the appellant. In such circumstances merely because the final report supports the case of the claimants, the contents of the same as such cannot be accepted. I have already mentioned about the reasons which evokes the said suspicion and those aspects were specifically taken note of the Tribunal while dismissing the application as well. ``` MACA NO. 1710 OF 2012 ``` ``` 11 ``` 10. However, even while arriving at the said finding, one aspect cannot be ignored. It is discernible from the records that the appellant sustained very serious injuries in the accident, and his physical disability was certified by the Medical Board as 85%. The appellant was 18 years old at the time of the accident, and it caused a serious impact on his life. In such circumstances, I deem it appropriate to grant a further opportunity to the appellant to establish his case by adducing further evidence. In the result, this appeal is allowed. The award dated 31.03.2012 passed by the Motor Accident Claims Tribunal, Manjeri in O.P.(M.V.) No.259/2009 is hereby set aside, and the matter is remanded back to the Tribunal for deciding the question afresh after giving all the parties a reasonable opportunity to adduce fresh evidence in support of their respective contentions. The parties shall appear before the Tribunal on 19.02.2024. ## **`Sd/ZIYAD RAHMAN A.A. JUDGE`** scs