MACA No. 2279 of 2008 (The Oriental Insurance Co. Ltd. v. Hassankunju, Siyad, Savad, Pavithran and Abdul Rasheed)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942** ## **MACA.No.2279 OF 2008** **AGAINST THE AWARD IN OPMV 549/2002 DATED 24-12-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ALAPPUZHA** ## **APPELLANT/3RD RESPONDENT:** **THE ORIENTAL INSURANCE CO.LTD. MATTANCHERRY, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH,KOCHI -18.** **BY ADVS. SRI.GEORGE CHERIAN (SR.) SRI.P.KRISHNA KUMAR (ALAPPUZHA)** ## **RESPONDENTS/CLAIMANTS:** |**1**|**HASSANKUNJU, S/O AZEEZ,**| |---|---| ||**VRIKSHAVILASOM THOPPU, VANDANAM, ALAPPUZHA -5.**| |**2**|**SIYAD S/O. HASANKUNJU**| ||**VRIKSHAVILASOM THOPPU, VANDANAM, ALAPPUZHA -5.**| |**3**|**SAVAD S/O.HASANKUNJU**| ||**VRIKSHAVILASOM THOPPU, VANDANAM,ALAPPUZHA -5.**| |**4**|**P.J.PAVITHRAN,S/O. BHASKARAN PUTHENPURA**| ||**VANDANAM,ALAPPUZHA -5.**| |**5**|**ABDUL RAHSEED S/O. ISMAIL**| ||**KARUKAPPARAMBU, THOPPIL, KURAVANTHODU, VANDANAM P.O.,**| ||**ALAPPUZHA.**| **R1 BY ADV. R.SURAJ KUMAR R1 BY ADV. SRI.C.A.CHACKO R1 BY ADV. SRI.SUNIL J.CHAKKALACKAL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 0503-2021, ALONG WITH CO.113/2013, THE COURT ON 05-03-2021 DELIVERED THE FOLLOWING:** MACA.No.2279 OF 2008 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942** **CO.No.113 OF 2013 IN MACA. 2279/2013** **AGAINST THE ORDER/JUDGMENT IN MACA 2279/2008 OF HIGH COURT OF KERALA** ## **PETITIONER/4TH RESPONDENT:** **P.T.PAVITHRAN S/O THANKAPPAN, PUTHENPURA, VANDANAM, ALAPPUZHA – 5** **(IN THE ABOVE APPEAL AND AWARD IT IS MISTAKENLY SHOWN AS P.J.PAVITHRAN, S/O BHASKARAN)** **BY ADV. SRI.C.A.CHACKO** **RESPONDENTS/APPELLANT & RESPONDENTS 1 TO 3 & 5:** - **1 THE ORIENTAL INSURANCE CO,LTD. MATTANCHERRY, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI -18** - **2 HASSANKUNJU, S/O AZZEZ, VIKSHAVILASOM THOPPU, VANDANAM,ALAPPUZHA 5** - **3 SIYAD, S/O AZZEZ, VIKSHAVILASOM THOPPU, VANDANAM,ALAPPUZHA 5** - **4 SAYAD, S/O AZZEZ, VIKSHAVILASOM THOPPU, VANDANAM,ALAPPUZHA 5** - **5 ABDULL RASHEED, S/O ISMAIL, KARUKAPPARAMBU THOPPIL, KURAVANTHODU, VANDANAM, ALAPPUZHA 5** - **R1 BY ADV. SMT.K.S.SANTHI R1 BY ADV. SRI.SUNIL J.CHAKKALACKAL** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 05-03-2021, ALONG WITH MACA.2279/2008, THE COURT ON 05-032021 DELIVERED THE FOLLOWING:** MACA.No.2279 OF 2008 3 ## **P.V.KUNHIKRISHNAN, J** **----------------------------------------------M.A.C.A. No.2279 of 2008 & Cross Objection No.113 of 2013 ----------------------------------------Dated this the 5[th] day of March, 2021** ## **JUDGMENT** This appeal is filed by the 3[rd] respondent in O.P.(M.V.) No. 549/2002 on the file of the Addl.Motor Accidents Claims Tribunal, Alappuzha. The above claim petition is filed by respondent Nos. 1 to 3 under Sec. 166 of the Motor Vehicles Act. 2. The short facts are like this : The petitioners are the father and brothers of the deceased Shihabudeen. On 19.4.1997 at about 2 am in the early morning, deceased Shihabudeen was pushing a hand cart loaded with ice along with others through the National Highway near Neerkunnam Thevarnada temple. The hand cart was hit from behind by a mini lorry and as a result deceased Shihabudeen who was pushing the hand cart from behind was knocked down by the mini lorry and it ran over his body causing instantaneous death. The other persons who were pushing the hand cart also sustained injuries. The same day morning at 6 am, Ambalapuzha police registered crime No.111/1997 and investigated the case. One of the injured gave the information. The injured could not give the description of the vehicle and its register MACA.No.2279 OF 2008 4 number. The details of the driver were also not given. Police after investigation referred the case as 'undetected'. Thereafter, the present claim petition was filed after about 5 years alleging that the vehicle which hit the deceased was Tata mini lorry bearing registration No. KL-7/L 2775 and it was driven by the 1[st] respondent. The claim petition was filed under Sec. 166 of the Motor Vehicles Act. 3. To substantiate the case, two witnesses were examined on the side of the claimants. Exts.A1 to A4 are the documents marked on side of the petitioner/claimant. Ext.B1 is the document marked on the side of the respondent. Following issues were considered by the Tribunal. 1. Whether there was a motor accident involving the deceased Shihabudeen and the mini lorry KL-7/L 2775 which was driven by the first respondent at the relevant time. If so, whether it was due to the rashness and negligence of the first respondent ? 2. Whether the petitioners are entitled to compensation. If so, what is the quantum and who are all liable to pay the same? 4. The first point was found in favour of the petitioner and the Tribunal found that the accident occurred because of the rash and negligent driving of the 1[st] respondent. As far as the quantum of compensation is concerned, the Tribunal awarded a total amount of Rs.1,70,000/- allowing the petitioners to recover the award amount MACA.No.2279 OF 2008 5 from the respondents with interest at the rate of 6% from the date of petition till realisation. There is a direction to the 3[rd] respondent to deposit the award in court. The 3[rd] respondent is also allowed to recover the award amount from respondent Nos. 1and 2 after payment because the Tribunal found that there is policy violation. 5. Aggrieved by the award, the 3[rd] respondent – Insurance Company filed MACA No.2279/2008. The 4[th] respondent filed the cross objection challenging the finding of the Tribunal that he has no driving licence. 6. Heard counsel for the appellant, counsel for the cross objectioner and the counsel for the claimants. 7. The counsel for the appellant/Insurance Company contended that the Police after investigation filed a refer report before the competent criminal court saying that 'undetected'. No protest complaint is filed by the claimants or anybody challenging the refer report. The accident happened in the year 1997. The claim petition was filed after 5 years, that is in 2002 alleging that the driver of the vehicle is Mr.Pavithran, who is the 1[st] respondent before the Tribunal. The claimants adduced evidence. PW1 and PW2 are the witnesses examined on the side of the claimants. According to the senior counsel, who appeared for the Insurance Company, the case of the claimants is highly unbelievable and it is an after thought. MACA.No.2279 OF 2008 6 According to the senior counsel, the vehicle is not involved in the accident. The claim petition is filed with an intention to get compensation. The counsel submitted that the evidence of PW2, the alleged eye witness cannot be believed at all. PW1 is not an eye witness. 8. The counsel for the claimants submitted that the Tribunal after considering the oral and documentary evidence, came to a definite conclusion that the 1[st] respondent therein is the driver and the vehicle is involved in the accident. The counsel submitted that the finding of the Tribunal is after watching the demeanor of the witness also. This Court may not interfere with the finding of fact by the Tribunal while considering this appeal. The counsel also relied on the judgment of the Full Bench of this Court in **ICICI Lombard General Insurance Company v. Devasia [2019 (3) KLT 652]** and the judgment of the Apex Court in **National Insurance Company Ltd. v. Swaran Singh** [(2004) 3 SCC 297]. 9. The counsel for the cross objectioner submitted that the finding of the Tribunal that there is no driving licence to him is not correct. He produced the driving licence as an additional document along with the cross objection. 10. The point for consideration is whether the claimants are able to prove the accident and the involvement of the vehicle in the MACA.No.2279 OF 2008 7 accident. 11. Ext.A1 is the FIR registered in this case immediately after the incident. FIR was registered on 19.4.1997 at 6 am. I perused the FI statement. PW1 is the defacto complainant. He stated in the FI statement that he can identify the driver of the offending vehicle. But he was not able to see the number of the offending vehicle. The defacto complainant was examined before the Tribunal as PW1. He also reiterated his case in the FI statement. Now, the trump card of the claimants is the evidence of PW2. I carefully perused the evidence of PW2 keeping in mind the principle laid down by the Full Bench of this Court in **ICICI Lombard General Insurance Company's** case (supra) and decision of the Apex Court in **Swaran Singh's** case (supra). 12. PW2 deposed before the Tribunal on 6.9.2007, ie., after 10 years of the alleged accident. Admittedly, the Police after investigation based on Ext.A1 FIR submitted a final report with a finding 'undetected'. No protest complaint is filed by any of the parties before the Court. Thereafter, PW2 the star witness of the claimants deposed before the Court after 10 years of the incident saying that he saw the incident happened about 10 years back. According to him, he was at the place of occurrence at about 2 am, on the date of the accident. According to him, he reached there in MACA.No.2279 OF 2008 8 ## connection with his political work. The Tribunal after considering the ## evidence of PW2, relied his evidence in the following manner. 7. “Issue No.1:-Accident involving the Tata mini lorry KL7/L 2775 is denied by the third respondent. The question is whether there was an accident involving deceased Shihabudeen and the vehicle above referred to which was driven by the first respondent. PW1 is the injured in the alleged accident. His evidence is that himself and the deceased Shihabudeen were pushing a hand cart from behind. Deceased Shihabudeen was on the rear right side who was hit by the mini lorry. PW1 also sustained injuries. Ext.A1 is the FIS given by him to Ambalapuzha Police. According to him, he could not identify the registration number of the vehicle and other details and he could not also identify the driver of the vehicle. According to PW1 it was PW2 who told him that one Pavithran was driving the vehicle. Ext A1 is the first information statement given by PW1 in that statement. He has not given the details of the vehicle or any details regarding the person who was driving the vehicle at the relevant time. After investigation, police referred the case as undetected as per Ext. A4 report. Ext.A3 is the scene mahazar from which it can be seen that there was a motor accident involving the deceased and the vehicle which hit him and it ran over him causing his instantaneous death. Ext A2 is the postmortem certificate which reveals that Shihabudeen died of multiple injuries sustained. 30 injuries were noticed by the police surgeon on the body of the deceased. From this it is clear that the vehicle which hit the deceased ran over him causing his instantaneous death. From the evidence of PW1 and the police records it can be safely found that there was a motor accident involving the deceased and PW1 and the remaining question is whether the vehicle involved in the accident is KL-7/L 2775 or not and that it was being driven by the first respondent. PW2 was examined to prove the incident. His evidence is that on the night in question he was engaged in pasting posters and at or about 2.00 in the early morning while he was standing on the western side of the N.H.near the scene of accident he heard a hitting sound and thereafter PW2 noticed a mini lorry being stopped just near him. When PW2 went near the vehicle the driver came out. According to PW2 the driver came out was one Pavithran who is known to him. It is also deposed by PW2 that the number of the mini lorry is KL-7/L 2775. Subsequently PW2 verified with the driver as to what had happened. Then the driver told him that the vehicle hit the hand cart. When PW2 went near the scene of accident he found a person lying drenched in blood. Another person was found sitting near him and yet another person was found near him with injuries. The question is whether the MACA.No.2279 OF 2008 9 evidence of PW2 is believable or not. It has come out in evidence that PW2 was then a bus owner. It was contended by the learned counsel for the insurance company that the presence of PW2 at the scene of occurrence is highly doubtful and considering his status it is highly improbable and unlikely that he would have gone for poster pasting. It has been admitted by PW2 that he could not inform the police. No doubt it is an unnatural conduct. But on this sole reason I think I am not justified in disbelieving PW2. His evidence is that he was engaged in pasting of posters in connection with some political function out of his political inclinations and it was not for wages. He would also say that one Sisupalan was accompanying him and he was a Party man. PW1 has not seen PW2 at the place. But on this reason also I am not justified in disbelieving PW2. He being the owner of a stage carriage and considering the circumstances in which PW2 had occasion to see the vehicle it is no wonder that he noticed the number of the vehicle as well as the person who drove the vehicle. True that PW2 had not informed the police that he had seen the vehicle involved in the accident. As I said earlier though it can be said that it is an unnatural conduct it cannot be said that he is an incredible person. Credibility is one thing and the natural course of human conduct is quite a different thing. One may be credible but may be not reacting to the situations the way a reasonable person would do placed in similar circumstances. So it is all about the credibility of the person. He was elaborately cross examined by the learned counsel for the insurance company. Reading his evidence as a whole I do not think that PW2 has been falsely deposing before the Court. His credibility could not be shaken in the cross examination and hence I am inclined to accept his evidence that the vehicle involved in the accident is KL-7/L 2775 which was being driven by the first respondent at the relevant time. Respondents 1 and 2 did not participate in the proceedings and their silence is another positive indication of their complicity in the event. But I am not inclined to hold that there is collusion between the petitioners on the one hand and respondents 1 and 2 on the other. Nothing was brought out in evidence to hold that there was collusion on the part of respondents 1 and 2. Therefore, I hold that there was a motor accident as alleged and deceased Shihabudeen was fatally knocked down by the mini lorry in question which was driven by the first respondent at the relevant time and as a result of the injuries sustained in the accident Shihabudeen died almost instantaneously. Hence respondents are liable to pay compensation for the tortious act. Issue answered accordingly.” 13. I am not in a position to agree with the finding of the MACA.No.2279 OF 2008 10 Tribunal. Admittedly, the alleged accident happened in 1997, the Police after investigation submitted a refer report. The defacto complainant in this case has no case that he filed any protest complaint against the finding of the police. Thereafter, a claim petition was filed after 5 years. PW2, a witness coming before the Tribunal after 10 years of the alleged accident and saying that he was a witness to the accident which happened at 2 am on 19.4.1997. He has not informed this information to anybody till then. He has no case that he informed the Police about the accident. After going through the evidence adduced by PW2 carefully, I am not in a position to accept the evidence of PW2. His evidence is not convincing. According to him, he reached there in connection with his political work. When questions were put to him about his political allegiance with the Congress party, he said that he is not an active worker. Moreover, he is the owner of a bus. According to him, he reached there for pasting postures. I don't want to make any further comments about the evidence of PW2. A Court of law cannot accept the evidence of PW2. 14. Therefore, I reject the evidence of PW2. If that is the case, the accident is not proved. The vehicle by which the accident occurred is not proved. Consequently, the claim petition itself is not maintainable. MACA.No.2279 OF 2008 11 15. Therefore, the appeal is allowed. The impugned award dated O.P.(M.V.) No.549/2002 on the file of the Motor Accidents Tribunal, Alappuzha is set aside. In the light of my finding in the appeal, the cross objection is also dismissed. sd/- **P.V.KUNHIKRISHNAN JUDGE** SKS