MACA Nos. 1960 of 2014 & 1998 of 2014: Bajaj Alliance General Insurance Company Ltd v. Sujitha Binson and Others; and Bajaj Alliance General Insurance Company Ltd v. Raju and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 24TH DAY OF MAY 2019 / 3RD JYAISHTA, 1941** ## **MACA.No. 1960 of 2014** **AGAINST THE AWARD IN OPMV 299/2011 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM DATED 10.03.2014** ## **APPELLANT/3RD RESPONDENT IN OP(MV) NO.299/2011:** **BAJAJ ALLIANCE GENERAL INSURANCE COMPANY LTD, PUNE, REPRESENTED BY ITS MANAGER, 3RD FLOOR, FINANCE TOWER, KALOOR, COCHIN - 682 017, ERNAKULAM** **BY ADV. SRI.LAL GEORGE** **RESPONDENTS/PETITIONERS 1 TO 4 AND THE RESPONDENTS 1 & 2 IN OP(MV) NO.299/2011:** - **1 SUJITHA BINSON AGED 27 YEARS AMBATTU @ PARAYIL (H), 5TH MILE, CHAKKUPALLAM PO, KUMALI, NOW RESIDING AT AMBATTU @ PARAYIL (H), MALOORKAVU BHAGOM, THRIKKODITHANAM VILLAGE, CHANGANACHERRY - 686 101** - **2 MARIA BINSON (MINOR) AMBATTU @ PARAYIL (H), 5TH MILE, CHAKKUPALLAM PO, KUMALI, NOW RESIDING AT AMBATTU @ PARAYIL (H), MALOORKAVU BHAGOM, THRIKKODITHANAM VILLAGE, CHANGANACHERRY - 686 101, REP. BY THE MOTHER SUJATHA BINSON** - **3 ANGEL MARY BINSON (MINOR) AMBATTU @ PARAYIL (H), 5TH MILE, CHAKKUPALLAM PO, KUMALI, NOW RESIDING AT AMBATTU @ PARAYIL (H), MALOORKAVU BHAGOM, THRIKKODITHANAM VILLAGE, CHANGANACHERRY - 686 101, REP. BY THE MOTHER SUJATHA BINSON** - **4 OUSEPH VARGHESE AMBATTU @ PARAYIL (H), MALOORKAVU BHAGOM, THRIKKODITHANAM VILLAGE, CHANGANACHERRY - 686 101.** - **5 GUNASHAKARAN** MACA.No. 1960 of 2014 2 **DOOR NO.34/A92, THRIKKAMPETTI STREET, 11TH WARD, SOUTHAPETTI RASINGAPURAM VILLAGE, BODINAIKANNOOR, TAMILNADU - 625 513.** **6 M. RAVICHANDRAN DOOR NO.1, KEELAPETTI, THRIKKAMPETTI STREET, 11TH WARD, SOUTHAPETTI RASINGAPURAM VILLAGE, BODINAIKANNOOR, TAMILNADU - 625 513.** **BY ADVS. SRI.K.A.HASHIM SRI.DILIP J. AKKARA SRI.M.I.ISMAIL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 1960 of 2014 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 24TH DAY OF MAY 2019 / 3RD JYAISHTA, 1941** ## **MACA.No. 1998 of 2014** **AGAINST THE AWARD IN OPMV 296/2011 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM DATED 10-03-2014** ## **APPELLANT/3RD RESPONDENT IN OP(MV) NO.296/2011:** **BAJAJ ALIANCE GENERAL INSURANCE COMPANY LTD. PUNE, REPRESENTED BY ITS MANAGER, 3RD FLOOR, FINANCE TOWER, KALOOR, COCHIN-682017, ERNAKULAM.** **BY ADV. SRI.LAL GEORGE** **RESPONDENTS/1ST PETITIONER AND THE RESPONDENTS 1,2,4,5 AND 6 IN OP(MV) NO.296/2011:** |**1**|**RAJU**| |---|---| ||**AGED 43 YEARS**| ||**ROSAPOOKANDAM, KUMALYKARA, KUMILY VILLAGE, NOW**| ||**RESIDING GREENS BUILDING, TB ROAD, KOTTAYAM-686001.**| |**2**|**GUNASHAKARAN**| ||**DOOR NO.34/192, THRIKKAMPETTI STREET, 11TH WARD,**| ||**SOUTHAPETTI RASINGAPURAM VILLAGE, BODINAIKANNOOR,**| ||**TAMILNADU-625513.**| |**3**|**M. RAVICHANDRAN**| ||**DOOR NO.1, KEELAPETTI,THRIKKAMPETTI STREET, 11TH**| ||**WARD, SOUTHAPETTI RASINGAPURAM VILLAGE,**| ||**BODINAIKANNOOR, TAMILNADU-625513.**| |**4**|**SUJITHA BINSON**| ||**AGED 27 YEARS**| ||**AMBATTU @ PARAYIL (H), 5TH MILE, CHAKKUPALLAM.P.O.,**| MACA.No. 1960 of 2014 4 **KUMALI, NOW RESIDING AT AMBATTU@ PARAYIL (H) MALOORKAVU BHAGOM, THRIKKODITHANAM VILLAGE, CHANGANACHERRY. PIN-686101.** **5 JAMALUDEEN THAIPARAMBIL(H), IDUKKI COLONY, KUMILY-685509.** **6 THE ICICI LOMBARD GENERAL INSURANCE CO. LTD. KOTTAYAM-686001.** **BY ADVS. SRI.K.A.HASHIM SRI.DILIP J. AKKARA SRI.R.AJITH KUMAR (128/84)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 1960 of 2014 5 ## M.A.C.A Nos.1960 & 1998 of 2014 ## **J U D G M E N T** These appeals are directed against the common award in two claim petitions preferred before the Motor Accidents Claims Tribunal which were tried and disposed of jointly. The insurer in the proceedings is the appellant in the appeals. 2. Among the claim petitions, O.P(MV) No.299 of 2011 was by the legal representatives/dependants of one Binsumon who died in the accident and O.P(MV) No.296 of 2011 was by an injured in the same accident. The accident took place on 25.01.2009. The deceased was riding a goods auto-rickshaw and the injured was sharing the seat of the driver of the goods auto-rickshaw with the deceased. The goods auto-rickshaw driven by the deceased hit against a lorry. The case set out by the claimants in the claim petitions is that the accident occurred on account of the negligence of the driver of the lorry. The appellant was the insurer of the lorry. They contested the claim petitions contending that the accident occurred on account of the negligence of the deceased and they are therefore, not liable to compensate the claimants. The Tribunal found that the accident MACA.No. 1960 of 2014 6 occurred on account of the negligence of the driver of the lorry and consequently directed the appellant to pay compensation to the claimants in their capacity as the insurer of the lorry. The appellant is aggrieved by the said award of the Tribunal. 3. Heard the learned counsel for the appellant, the learned counsel for the claimants as also the learned counsel for the insurer of the auto-rickshaw involved in the accident. 4. The learned counsel for the appellant submitted that after due investigation, the police found in the criminal case registered in connection with the accident that the accident occurred on account of the negligence of the deceased and consequently referred the case as the wrongdoer died in the accident. It was also submitted by the learned counsel that though cognizance of the offence was taken by the Magistrate concerned in a protest complaint preferred by the claimants in O.P(M.V) No.299 of 2011 challenging the conclusion arrived at by the investigating agency, the said proceedings are yet to be concluded. It was pointed out by the learned counsel that in the circumstances, the claimants have adduced independent evidence before the Tribunal to establish the negligence on the part driver of the lorry and it is on that basis that the Tribunal came to a conclusion that the accident occurred on account of the negligence of the driver of the lorry. It was argued by the learned counsel that the evidence adduced MACA.No. 1960 of 2014 7 by the claimants is not sufficient to draw an inference that the accident occurred on account of the negligence of the driver of the lorry. On the other hand, according to the learned counsel, the materials on record indicate beyond doubt that the accident occurred on account of the negligence of the deceased. 5. Per contra, the learned counsel for the claimants submitted that the materials on record are sufficient to hold that the accident occurred on account of the negligence of the driver of the lorry and the decision of the Tribunal is in order. 6. I have considered the contentions raised by the learned counsel on either side. It is seen that the goods auto-rickshaw driven by the deceased collided head-on with the lorry. As pointed out by the learned counsel for the appellant, it was found in the criminal case registered in connection with the accident that the accident occurred on account of the negligence of the deceased. True, the conclusion arrived at by the investigating agency does not prevent the claimants from establishing their case that the accident occurred on account of the negligence of the driver of the lorry by adducing independent evidence. See **New India Assurance Co. Ltd.** v. **Pazhaniammal** (2011(3) KLT 648). The question arises for consideration therefore, is as to whether the Tribunal was justified in arriving at the conclusion that the accident occurred on account of the MACA.No. 1960 of 2014 8 negligence of the driver the lorry based on the evidence let in by the claimants. 7. Three witnesses have been examined by the claimants on their side. Among them, PW1 is the wife of the deceased. She admitted that she has not seen the accident. PW2 examined on the side of the claimants is the claimant in O.P(MV) No.296 of 2011. He being the claimant in one of the cases before the Tribunal, much weight cannot be attributed to his evidence in the matter of examining the issue regarding negligence of the driver of the lorry, especially in the light of the conclusion arrived at in the Police investigation conducted in connection with the accident. PW3 is a person residing a furlong away from the place of occurrence. Though he has stated in his chief examination that he has seen the accident and that the same occurred on account of the negligence of the driver of the lorry, his version in cross- examination was that he came to the scene of occurrence about 10 minutes after the accident. It is seen that the appellant has examined in the proceedings before the Tribunal, the Police officer who has conducted the investigation in the case registered in connection with the accident. The Police officer asserted, based on the evidence collected by him, that the accident occurred on account of the negligence of the deceased who was driving the goods autorickshaw. On one hand, the Tribunal had the evidence collected by MACA.No. 1960 of 2014 9 the Police and the conclusion arrived at by them and on the other hand, the evidence tendered by PWs 1 to 3. If one evaluates the aforesaid materials, in the light of the presumption of genuineness attached to the conclusion arrived at by the Police in the criminal case, this court is unable to accept the evidence tendered by Pws 1 to 3 to hold that the accident occurred on account of the negligence of the driver of the lorry. Be that as it may, it is seen that the width of the tarred portion of the road at the place of occurrence is 6.10 meters and the place of occurrence, in terms of the scene mahazar prepared by the Police, is 3 meters west of the eastern tarred end of the road. As the lorry was proceeding from south to north and goods autorikshaw was coming from north to south, according to the Tribunal, the accident occurred on the side of the goods autorikshaw and it is on account of that reason, the Tribunal came to the conclusion that the accident occurred on account of the negligence of the driver of the lorry. The place of occurrence is shown in the scene mahazar, having regard to the position of the vehicles at the scene of occurrence after the accident. The same need not be the correct scene of occurrence. Further, even if it is taken that the scene of occurrence as shown in the scene mahazar is correct, it cannot be inferred from the said fact alone that the accident occurred on account of the negligence of the driver of the lorry. The reason is that the scene of occurrence as shown in the MACA.No. 1960 of 2014 10 scene mahazar is 3 meters west to the eastern tarred end of the road having a width of 6.10 meters. In other words, the scene of occurrence is in the middle of the road. The lorry involved in the accident being the bigger vehicle, merely for the reason that it was proceeding through the middle of the road, it cannot be said that the same was on the wrong side. Further, goods autorikshaw being a smaller vehicle, I find no justification also for such a small vehicle to come to the middle of the road while negotiating a crossing between the vehicles. The materials on record, according to me, are not sufficient to hold that the accident occurred on account of the negligence of the driver of the lorry alone. Having confronted with the above position, the learned counsel for the claimants prayed for an opportunity to adduce further evidence in the matter to establish the negligence of the driver of the lorry. The proceedings before the Tribunal being inquisitorial and the object being to provide a solace to the victims of motor accidents, I am of the view that the claimants shall be granted the opportunity sought for by their counsel. In the result, the impugned common award is set aside and the matters are remitted to the Tribunal for fresh disposal after affording the claimants a further opportunity to adduce evidence to establish the negligence of the driver of the lorry. The respondents in the proceedings shall also be afforded an opportunity to adduce MACA.No. 1960 of 2014 11 further evidence, if they choose to do so. The parties are directed to appear before the Tribunal on 17.06.2019. **Sd/-** **P.B.SURESH KUMAR** **JUDGE** Mn