MACA No.2142 of 2011 (C)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942** ## **MACA.No.2142 OF 2011(C)** **AGAINST THE AWARD IN OP(MV) 2099/2006 DATED 28-05-2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANTS/PETITIONERS 3 to 5:** **1 SHAMLA, AGED 30 YEARS, W/O. LATE SHABEER V.A.** - **2 MINOR SAMEESHA V.SAGED 10 YEARS D/O.LATE SHABEER V.A,REP.BY NEXT FRIEND,, AND MOTHER SHAMLA,W/O.LATE SHABEER.** - **3 MINOR SAHAD V.S, AGED 8 YEARS S/O.LATE SHABEER V.A,REPRESENTED BY NEXT FRIEND, AND MOTHER SHAMLA,W/O.LATE SHABEER.** **ALL ARE NOW RESIDING AT VAKKATT HOUSE, VENNALA P.O, ARAKKAKADAVU, COCHIN – 682 028.** **BY ADVS. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH** ## **RESPONDENTS/RESPONDENTS/1ST PETITIONER:** - **1 N.K.VELAYUDHAN CHANDIROOR P.O, CHERTHALA PIN 688 524.** - **2 UNITED INDIA INSURANCE COMPANY LTD JOS TRUST BUILDING, CHITOOR ROAD,, ERNAKULAM, COCHIN 682 035.** - **3 NATIONAL INSURACNE COMPANY ST.AUGUSTINES CHURCH BUILDING, BYE PASS JUNCTION, AROOR P.O,PIN 688 534.** - **4 P.M.AHAMED,S/O.MOHAMMED VALAVANTHARA HOSUE,CHANDIROOR P.O, CHERTHALA, PIN 688 524.** - **R1, R3 BY ADV. SMT.DEEPA GEORGE R1 BY ADV. SRI.M.A.GEORGE R2 BY ADV. SRI.P.JACOB MATHEW – SC FOR COMPANY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2142 OF 2011** **2** ## **JUDGMENT** **Dated this the 10th day of March 2021** The appellants were the petitioners 3 to 5 in O.P(MV) No.2099/2006 on the file of the Motor Accidents Claims Tribunal, Ernakulam. The respondents 1 to 3 in the appeal were the respondents in the claim petition and the 4[th] respondent in the appeal was the 1[st] petitioner in the claim petition. The 2[nd] petitioner died during the pendency of the claim petition. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act,1988 (for brevity referred to as “Act”) claiming compensation on account of the death of one Shabeer – the husband of the 3rd petitioner and the father of petitioners 4 and 5 – who died on 30.12.2005. 3. The concise case of the petitioners in the claim petition, relevant for the determination of the appeal, is: the petitioners 1 and 2 are the parents of **MACA.No.2142 OF 2011** **3** Shabeer (deceased), the 3[rd] petitioner is the widow and the petitioners 4 and 5 are the children born in the wedlock between the deceased and the 3[rd] petitioner. According to the petitioners, on 5.7.2005 at 7.10 p.m, while the deceased was riding a motorcycle bearing Reg.No. KL-04/E 3303 from the north to south direction on the Kumbalam-Aroor Bridge, when he reached the southern end of the bridge, a motor cycle bearing Reg.No.KL-04/P-8279 (offending vehicle) ridden by one Manikuttan, in a rash and negligent manner so as to endanger human life, hit the motorcycle of the deceased. The deceased was thrown on the road and sustained grievous injuries. The deceased was taken to Lakeshore Hospital, Nettoor, where he was treated as an inpatient from 5.7.2005 to 27.9.2005. He was discharged from the Hospital on 27.9.2005 and continued treatment at home. On 30.12.2005, he succumbed to the injuries. The petitioners were the dependents of the deceased. They have been deprived of the source of maintenance, expectation, **MACA.No.2142 OF 2011** **4** companionship and consortium. Although the deceased was not negligent in the accident, by abundant caution, the insurer of the vehicle ridden by the deceased has been impleaded as the 3[rd] respondent. The 1[st] respondent is the owner of the offending vehicle and the 2[nd] respondent is the insurer of the offending vehicle. The deceased was an autorickshaw driver and drawing a monthly income of Rs.6,000/-. The respondents are jointly and severally liable to compensate the petitioners, which they quantified at Rs.17,85,000/- but limited to Rs.12,00,000/-. . 4. The 1[st] respondent did not contest the proceedings and was set ex parte. 5. The 2[nd] respondent - the Insurance Company of the offending vehicle – filed a written statement, inter alia, refuting the allegations in the claim petition. It was contended that the rider of the offending vehicle was not responsible for the accident as alleged in the claim petition. It was the deceased who drove his motorcycle in a rash and negligent manner on the wrong side of the **MACA.No.2142 OF 2011** **5** road at excessive speed. Therefore, the 2[nd] respondent is not liable to pay any amount as compensation. 6. The 3[rd] respondent, the insurer of the motor cycle ridden by the deceased also filed a written statement admitting that it was the insurer of the motorcycle of the deceased, but denied its liability. 7. The petitioners examined a witness as PW1 and Exts.A1 to A8 were marked on their side. The 2[nd] respondent produced and marked Exts.B1 and B2 in evidence. 8. The Tribunal, after analysing the evidence and materials on record, by the impugned award dismissed the claim petition, holding that the driver of the offending vehicle was not negligent in causing the accident as alleged in the claim petition and that the petitioners have not proved negligence atleast in the yardstick of preponderance of evidence. 9. Aggrieved by the impugned award, the appellants/petitioners 3 to 5 are in appeal. 10. Heard the learned counsel appearing for the **MACA.No.2142 OF 2011** **6** appellants and the learned counsel appearing for the respondents 2 and 3. 11. The question that arises for consideration in the appeal is whether the dismissal of the claim petition by the Tribunal is justifiable or not? 12. The specific case of the petitioners in the claim petition was that the accident was caused due to the rash and negligent riding of the offending vehicle by Manikuttan. They alleged that the accident occurred on 5.7.2005 at 7.10 p.m. The petitioners produced only Ext.A1 F.I.R registered by the Police in Crime No.2505/2005 of the Kochi City Traffic Police Station, to substantiate that the accident occurred due to the collision between the offending vehicle and the vehicle ridden by the deceased. 13. As per Ext.B1 scene mahazar, it is seen that the vehicle of the deceased was found on the wrong side. The Hon'ble Supreme Court in **Jiju Kurivila and Others v. Kunjujamma Mohan and Others** [(2013) 9 SCC 166] has held that, the position of the vehicle as **MACA.No.2142 OF 2011** **7** shown in the scene mahazar may suggest or presume the manner in which the accident was caused in the absence of any direct or corroborative evidence. 14. The Police after investigation have in Ext.B2 final report concluded that the accident occurred not due to the negligence on the part of Manikuttan, but due to the non-dimming of high beam light of the lorries on the bridge. The Police accordingly referred the Crime No.2505/05 finding that there was no negligence on the part of Manikuttan. 15. The Division Bench of this Court in **New India Assurance Co. Ltd v. Pazhaniammal** [2011 (3) KLT 648] has laid down the law that prima facie, chargesheet filed by a Police Officer, after investigation, can be accepted as evidence of negligence against the indictee. If any of the parties do not accept such charge-sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge-sheet is filed, the Trbunal should give further opportunity to others also to **MACA.No.2142 OF 2011** **8** adduce oral evidence and in such a case, the chargesheet will fall into a pale of insignificance and the dispute will have to be decided on the merits. In all other cases, such charge-sheets filed by the Police can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act, 1988. 16. In **Kolavan v. Salim** [2018 (1) KLT 489], this Court has gone onto hold that once a charge sheet is filed, the Tribunal will not be justified in finding negligence contrary to the finding in the charge-sheet. If there is any suspicion with regard to the charge-sheet filed by the Police after completing the investigation, the party should be afforded an opportunity to adduce oral evidence of the accident. 17. In the case on hand, undisputedly, the Police after investigation, filed Ext.B1 charge-sheet. The petitioners have not adduced any evidence to discredit the charge-sheet or the scene mahazar. Instead, the petitioners have examined PW1, an alleged ocular **MACA.No.2142 OF 2011** **9** witness to the accident that occurred on 5.7.2005. The Tribunal discarded the testimony of PW-1 finding it to be totally unworthy and interested. 18. On a re-appreciation of the oral testimony of PW1, it is seen that he has deposed that immediately after the accident, he took the deceased as well as the rider of the offending vehicle to the Lakeshore Hospital and waited there for half an hour. After the Police and the relatives of the injured reached the hospital, he furnished his address to the Police and left, but they never called him. Later, he came to learn about the pendency of the claim petition and volunteered to tender evidence. 19. It is pertinent to note that the Police in Ext.B2 refer report have specifically mentioned that they reached the Lakeshore Hospital only at 11 p.m, whereas the accident took place at 7.20 p.m. Thus, going by the version of PW1, he left the hospital within half an hour after the accident. Therefore, PW1 has not remained in the hospital after 8 p.m. Hence, the **MACA.No.2142 OF 2011** **10** testimony of PW-1 that his testimony that he left the hospital only after the Police arrived at the hospital is unbelievable and unworthy. Moreover, PW1 has stated that he was a lottery agent and used to sell lotteries in the area where the accident took place. According to him, on the ill-fated day, while he was walking towards the north, as there was no bus from Aroor towards Vyttila, when he reached the bridge he saw the offending vehicle and he sought for a lift, but the offending vehicle did not stop there and sped away and, thereafter slipped and hit the motorcycle of the deceased. 20. PW1 had deposed before the Tribunal after nearly five years after the accident. PW1 has not stated how he got information regarding the pendency of the case and what prompted him to give evidence. The oral testimony of PW1 does not inspire confidence in this Court to upturn the findings of the Tribunal, which has rightly held the testimony of PW1 to be interested. In the said circumstances, I eschew the evidence of **MACA.No.2142 OF 2011** **11** PW1. 21. On an overall re-appreciation of the pleadings, materials on record and especially in light of the fact that the petitioners have not let in any contra evidence to discredit Ext.B1 scene mahazar and Ext.B2 final report filed by the police, the law laid down in **Pazhaniammal** and **Kolavan** (supra) and eschewing of the evidence of PW1, I am of the opinion that the petitioners have miserably failed to prove that it was Manikuttan who caused the accident as alleged in the claim petition on 5.7.2005. The Tribunal has rightly evaluated the pleadings and materials on record and dismissed the claim petition. The appeal is devoid of any merits and is hence dismissed. **Sd/-** **C.S.DIAS** ma/15.03.2021 /True copy/ **JUDGE**