MACA No. 2718 of 2018 & MACA No. 4060 of 2018, High Court of Kerala at Ernakulam

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945 ``` ## **`MACA NO. 2718 OF 2018`** ``` AGAINST THE AWARD DATED 19.04.2018 IN OPMV 690/2017 OF II ``` ## **`ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE`** ## **`APPELLANT/3RD RESPONDENT:`** ``` NATIONAL INSURANCE COMPANY LTD. KOZHIKODE, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI – 35 BY ADVS. GEORGE CHERIAN (SR.) K.S.SANTHI LATHA SUSAN CHERIAN ``` ## **`RESPONDENTS/CLAIMANT & RESPONDENTS 1 & 2:`** ``` 1JAMSHID S/O. ABDURAHIMAN KONADATH, JASEELA MANZIL, POST MAKKADA, KAKKODI, KOZHIKODE DISTRICT, PIN CODE - 673 611 2SHYAMLAL S/O. PUSHPALATHA, MARAKKATT VAYAL HOUSE, POST VENGERI, KOZHIKODE DISTRICT, PIN CODE - 673 010 3ADARSH.K., S/O. BALACHANDRAN K., KOYI PURATH PUNATHIL, THAZHAM HOUSE, EDAKKAD POST, KOZHIKODE DISTRICT, PIN CODE - 673 005 BY ADVS. SRI.R.SUDHISH SMT.M.MANJU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.12.2023, ALONG WITH MACA.4060/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2718 OF 2018 & MACA NO. 4060 OF 2018 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945 ``` ## **`MACA NO. 4060 OF 2018`** ## **`AGAINST THE AWARD DATED 19.04.2018 IN OPMV 690/2017 OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE APPELLANT/PETITIONER:`** ``` JAMSHID AGED 25 YEARS S/O.ABDURAHIMAN KONADATH,JASEEL MANZIL, MAKKADA P.O., KAKKODI, KOZHIKODE DISTRICT-673 611 ``` ``` BY ADVS. R.SUDHISH SMT.M.MANJU ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SHYAMLAL S/O. PUSHPALATHA, MARAKKAT VAYAL HOUSE, VENGERI POST, KOZHIKODE -673 010 ``` ``` 2ADARSH K., S/O. BALACHANDRAN K., KOYIPURATH PUNATHIL THAZHAM HOUSE, EDAKKAD P.O., KOZHIKODE-673 005 ``` - `3 NATIONAL INSURANCE CO.LIMITED, NOOR COMPLEX, ARAYEDATHUPALAM, MAVOOR, ROAD JUNCTION, KOZHIKODE-673 004` ``` MACA NO. 2718 OF 2018 & MACA NO. 4060 OF 2018 ``` ``` 3 ``` ``` BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.12.2023, ALONG WITH MACA.2718/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2718 OF 2018 & MACA NO. 4060 OF 2018 ``` ``` 4 ``` ## **`JUDGMENT`** ## **`[MACA Nos.2718/2018, 4060/2018]`** Both these appeals are arising from O.P. (M.V.) No.690/2017 on the files of the II Additional Motor Accident Claims Tribunal, Kozhikode. The said claim petition was submitted by the appellant in M.A.C.A. No.4060/2018, seeking compensation for the injuries sustained to him in a motor accident that occurred on 10.05.2014. For convenience, the parties herein are referred to as per their respective ranks in the claim petition. 2. According to the claimant, the accident occurred when he rode the motorcycle bearing Registration No. K.L. 11/AR 1596 through Kozhikode-Kannur road, from Cherukulam to Chakkorathkulam, and when it reached the front of the Athanikkal bus stop, another bike bearing Registration No. K.L. 11/AL 3723, ridden by the 2nd respondent in a rash and negligent manner, hit his bike; thereby, he fell down and sustained injuries. Immediately, he was taken to Government General Hospital, Kozhikode, and treated there. Later, he was taken to Kozhikode District Cooperative Hospital and received treatment. The claim petition was ``` 5 ``` ## **`MACA NO. 2718 OF 2018 & MACA NO. 4060 OF 2018`** submitted in such circumstances seeking compensation. 3. The 1st respondent was the owner of the motorcycle which hit the motorcycle ridden by the petitioner, and the said motorcycle was insured with the 3rd respondent, the appellant in M.A.C.A. No.2718/2018. The 3rd respondent alone contested the matter by filing a written statement wherein they admitted the insurance coverage. However, they seriously disputed the negligence on the part of the 2nd respondent. They disputed the quantum of compensation as well. 4. The evidence in this case consists of Ext.A1 to A11 from the side of the petitioner and no evidence was adduced from the side of the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 2nd respondent in riding the motorcycle, and being the insurer, the 3rd respondent in the claim petition was mulcted with the liability. The quantum of compensation was fixed as Rs.1,90,800/- and the said amount was directed to be deposited by the 3rd respondent in the claim petition with interest @ 8% per annum from the date of petition till realization with proportionate ``` MACA NO. 2718 OF 2018 & MACA NO. 4060 OF 2018 ``` ``` 6 ``` costs. M.A.C.A. No.4060/2018 was submitted by the petitioner seeking enhancement of compensation, whereas M.A.C.A. No.2718/2018 was submitted by the 3rd respondent insurer challenging the finding of the Tribunal, holding the 2nd respondent negligent in the said accident. 5. Heard Sri. George Cherian (Thiruvalla), learned senior counsel appearing for 3[rd] respondent in the claim petition, the appellant in M.A.C.A. No.2718/2018 and Smt.M. Manju, learned counsel appearing for the claimant, the appellant in M.A.C.A. No.4060/2018. 6. The primary contest in M.A.C.A. No.2718/2018 is regarding the finding of the Tribunal on the question of negligence. The learned senior counsel specifically contends that the Tribunal arrived at the conclusion that the 2[nd] respondent in the claim petition was responsible for the accident without any materials. The learned counsel also pointed out that the Tribunal, while arriving at the said conclusion, relied upon the decision rendered by this Court in **New India Insurance Company Ltd. v. Pazhaniyammal and others** [2011 (3) KLT 648], which was not ``` MACA NO. 2718 OF 2018 & MACA NO. 4060 OF 2018 ``` ``` 7 ``` applicable to the facts of the case. On the other hand, the learned counsel appearing for the claimant would point out that there were ample materials to show the negligence on the part of the 2[nd] respondent, as the 2[nd] respondent pleaded guilty before the Judicial First Class Magistrate Court IV, Kozhikode, in C.C. No.430/2015, as evidenced by Ext.A7 judgment. Therefore, there was nothing wrong in accepting the said document and holding the 2[nd] respondent responsible for the accident. 7. I have carefully gone through the records. Of course, it is true that the 2nd respondent had appeared before the jurisdictional court in a criminal case registered against him and pleaded guilty, as evidenced by Annexure A7. However, the crucial aspect to be noticed is that, in this case, no crime was registered by the police. A private complaint was submitted by the claimant on 05.11.2014, i.e. almost six months after the accident, before the Judicial First Class Magistrate Court IV, Kozhikode and cognizance was taken thereon by the learned Magistrate as C.C. No.430/2015. On receipt of the summons, the 2nd respondent appeared, on the day he appeared, he pleaded not guilty, but ``` 8 ``` ## **`MACA NO. 2718 OF 2018 & MACA NO. 4060 OF 2018`** later, he changed his plea and accepted the guilt. Thereupon, he was convicted with a fine. It is to be noted that, apart from the private complaint submitted by the claimant and also Ext.A7 judgment by which the plea of guilty at the instance of the 2nd respondent was accepted, there are no materials indicating the involvement of the vehicles mentioned above and the manner in which the accident occurred. 8. The crucial aspect to be noticed is that, even though the accident occurred on account of the collision of two motor vehicles, crucial documents evidencing the said collision, such as, the site mahazar, vehicle inspection report, and the statements of witnesses who had seen the incident etc. are not there. The said documents would only be there when police conducted an investigation after registering the crime. Even though no such documents were produced, the Tribunal simply relied upon the private complaint as well as the Ext.A7 judgment and held the 2nd respondent responsible for the accident after placing reliance upon the decision rendered in **Pazhaniammal (supra). The** reliance of **Pazhaniammal (supra)** was not proper in the facts ``` MACA NO. 2718 OF 2018 & MACA NO. 4060 OF 2018 ``` ``` 9 ``` and circumstances of the case. This is particularly because, as far as the observations made by this Court in **Pazhaniammal (supra)** are concerned, the same was based on the report submitted by the Police after conducting the investigation, which would invariably contain crucial documents such as statements of witnesses, scene mahazar, vehicle inspection report etc. conducted by independent officials. Such a final report is supposed to contain the statements of independent witnesses as well. In a case where a private complaint was submitted, and the accused pleaded guilty in such a private complaint, no such documents of an independent nature may not be there, and hence, the Tribunal should not have accepted the said documents without any further proof. Therefore, accepting the said documents without proving the same in a proper manner by examining any of the witnesses to the said incident or the claimant himself was not at all appropriate. Moreover, the principles laid down in **Pazhaniammal (supra)** could not have been made applicable in the facts and circumstances of the case as the crucial document, namely the police report, is lacking. Therefore, ``` 10 ``` ## **`MACA NO. 2718 OF 2018 & MACA NO. 4060 OF 2018`** I am of the view that the finding of the Tribunal holding the 2[nd] respondent responsible for the accident solely based on Ext.A1 private complaint and Ext.A7 judgment convicting the 2[nd] respondent on the plea of guilty cannot be sustained. More evidence was required to determine the question of negligence. Therefore, interference is required. 9. However, in the interest of justice, the petitioner can be granted one more opportunity to adduce evidence to substantiate his case of negligence. This is particularly because Ext.A2 wound certificate indicates that he suffered injuries in a motor accident. In M.A.C.A.No.4060 of 2018, the petitioner also sought enhancement of compensation. However, since this Court interfered with the finding of the question of negligence and the matter is remanded back to the Tribunal, I am of the view that the question raised in M.A.C.A.No.4060 of 2018 can also be readjudicated before the Tribunal. In the light of the aforesaid observations and findings, these appeals are disposed of. The award dated 19.04.2018 passed by the II Addl.Motor Accidents Claims Tribunal, Kozhikode in O.P. ``` MACA NO. 2718 OF 2018 & MACA NO. 4060 OF 2018 ``` ``` 11 ``` (MV).No.690 of 2017 is set aside, and the matter is remanded back to the Tribunal for fresh consideration. All the parties shall be at liberty to adduce further evidence in support of their respective contentions. The Tribunal shall provide reasonable opportunities to the parties to adduce evidence, which shall be appreciated in accordance with law. Parties are directed to appear before the Tribunal on 29.01.2024. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs/DG/23.12.2023