High Court of KeralaSingle JudgeThe court disposed of ten connected MACA matter...
MACA Nos. 2695, 2701, 2702, 2703, 2706, 2954, 2978, 2986, 3134 and 3139 of 2009 (Connected Motor Accident Claims Appeals)
Case / Petition Number:MACA No. 2695/2009; MACA No. 2701/2009; MACA No. 2702/2009; MACA No. 2703/2009; MACA No. 2706/2009; MACA No. 2954/2009; MACA No. 2978/2009; MACA No. 2986/2009; MACA No. 3134/2009; MACA No. 3139/2009
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- P. V. Kunhikrishnan
- Judgment Date
- 2021-03-10
- Court Decision / Holding
- The impugned awards in all ten MACA petitions are set aside. The Motor Accidents Claims Tribunal, Ernakulam, is directed to restore O.P.(M.V.) Nos. 2281/2009, 2279/2004, 2278/2004, 2277/2004 and 2280/2004 into file and dispose these petitions afresh after giving both sides an opportunity to adduce additional evidence. No de novo trial is required. The Tribunal will determine negligence afresh, untrammeled by observations in this judgment, and dispose the petitions as expeditiously as possible, within seven months from the receipt of a copy of this judgment. Any deposited amounts will be adjusted at the time of passing the final award. The judgment preserves the merits for fresh consideration without binding the Tribunal to the observations contained herein, recognizing the statutory objective of providing timely relief to the claimants.
- Final Disposition
- The court disposed of ten connected MACA matters by a common judgment. It set aside the impugned Tribunal awards, directed remand to the Tribunal to decide afresh on negligence and quantum with opportunity for additional evidence, but not a de novo trial, and ordered expeditious disposal within seven months from the date of receipt of the judgment copy. It clarified that compensation already deposited could be adjusted against the final award and that the Tribunal should consider the case in light of this judgment without being bound by its observations.
Parties to the Case
Appellants / Petitioners
- Bincy Thomas
- FeBa Thomas
- Emiline R. Thomas
- Thankamma Yohannan
- Anila A Kumar
- P.A. Athira
- Dereena George
- Mary Geetha
- Teena George
- Renuka Thilakan
- Shince C. Thilakan
- Chithira C. Thilakan
- Karthyayani Velandy
- Mary Geetha
- Renu/ Reenu
- Mini Mathai
- Edwin Mathai
- Kevin Mathai
- Renuka Thilak an
- M Ay Geetha
- Miss
- The United India Insurance Co. Ltd.
Respondents
- The Managing Partner Hind Agencies, Cochin University Road, South Kalamassery, Ernakulam
- National Insurance Co. Ltd., Divisional Office, Kochi
- Monikamma Vel Lakada Vel Lakada House, Manimala, Cheruvally P.O., Kottayam District
- C.J. John (S/O Joseph), Charangattu House, Near Holy Family Church, Kalavoor, Ambalapuzha District
- Anila A. Kumar, W/o Late Asha Kumar, Aathira, Puvvathukattill House, Chottanikkara P.O., Ernakulam
- The United India Insurance Co. Ltd., Daivasahayam Building, KK Road, Ponkunnam
Legal Representation & Advocates
Counsels for Petitioners
- • Adv. Sri K.V. Rajan
- • Adv. Sm. Deepa George
Counsels for Respondents
- • Adv. Sri K.A. Hashim
- • Adv. Sri Lal George
- • Adv. Sri John Joseph Vettikad
- • Adv. Sri John Johnson Abraham
Case Synopsis & Summary
This judgment consolidates ten connected Motor Accident Claims Appeals arising from five O.P.(M.V.) awards passed by the Motor Accidents Claims Tribunal, Ernakulam, all dated 05-05-2009. The Insurance Company (United India Insurance Co. Ltd.) challenges the Tribunal’s quantum and negligence conclusions in five petitions (Nos. 2277/2004 to 2281/2004), while the claimants challenge the awards in four or more cross-appeals seeking enhancement. The tribunal initially held that four of the five cases resulted in compensation to the claimants, while one petition (O.P.(M.V.) 2281/2004) was dismissed on the ground that the deceased in that case was the car driver and thus negligent, a finding the claimants challenged. The High Court616, however, set aside all impugned awards, directing a remand to the Tribunal for fresh adjudication with opportunities to adduce further evidence, but expressly avoiding a de novo trial. It directed expeditious disposal within seven months from receipt of the judgment copy, and allowed set-off of any deposited amounts against the final awards. Crucially, the Court clarified that the police final report is only prima facie evidence under Sec.166 MV Act and that the Tribunal may re-evaluate negligence with additional evidence, without fettering the merits.”
Provisions of Law Cited
Section 166 of the Motor Vehicles Act, 1988
Legal Doctrines & Maxims
- Res ipsa loquitur
- Prima facie evidence
Submissions & Arguments
Contentions of Appellants / Petitioners
The claimants contended that the accident was caused by the rash and negligent driving of the offending lorry driver. They relied on Exts. A1–A60, PW6’s testimony and the scene mahazar (Ext. A13) to show negligence by the lorry driver, arguing that the Tribunal erred in attributing negligence to the car driver alone. They urged that, if any negligence lay with the car driver, it would be a case of composite negligence requiring apportionment (potentially 50/50). They sought reopening/recall of evidence and remand to the Tribunal to re-evaluate negligence and quantum, while preserving already-deposited amounts, and without demoralising the claimant’s right to compensation. The petitioners pressed for a fact-intensive reappraisal rather than a de novo re-trial, given the long lapse since filing. respondents: The insurers argued that the Tribunal correctly held the car driver negligent; they emphasized the police final report as prima facie evidence under Sec.166 MV Act and relied on Jurisprudence (including Pazhaniammal’s case) to support reliance on the final report, scene mahazar and other materials to fix negligence. They contended that remand for evidence is unnecessary and that the findings should stand, with no new trial required, and that the Court should avoid re-arguing the merits anew, while ensuring proper quantum in the fresh proceedings.
Contentions of Respondents
The respondents defended the Tribunal’s findings, asserting the car driver’s negligence as the primary cause of the accident and contending that the final police report provides prima facie evidence of negligence under Sec.166 MV Act; they relied on established jurisprudence confirming that scene mahazar and other documents can inform negligence determinations. They argued for no remand or, if remand is required, for limited, not de novo, proceedings. Their submissions stressed that the appellate court should not undermine the Tribunal’s factual findings without compelling new material and that the quantum must be reconsidered in light of the fresh analysis, while maintaining previously deposited sums. They emphasised that the law’s beneficial intent should guide a measured re-assessment rather than a full re-trial, especially given the ten-year period since the incident and the need for timely relief to the claimants.
Cited Precedents (4)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Bijoy Kumar Dugar v. Bidyadhar Dutta & Ors. | 2006 (2) SCW 1116 | Mentioned Only | Cited by counsel to support composite negligence in a head-on collision; the court did not rely on this decision to formulate its own ratio in the matter. |
| New India Assurance Co. Ltd. v. Pazhaniammal | (2011) 3 KLT 648 | Positive | Cited with approval to support that police final report can be prima facie evidence for negligence under Sec.166 MV Act. |
| Edward Lobo & Anr. | (1991) ACJ 634 | Positive | Cited to explain the relevancy and admissibility of scene mahazar as part of evidence in accident cases. |
| Philippose Cherian and Anr. v. T.A. | Unspecified | Mentioned Only | Cited by counsel; the court did not adopt or distinguish this decision in its reasoning. |
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Extracted Judgment Text
Exact text extracted from official judgment records.
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN**
**WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942**
## **MACA.No.2695 OF 2009**
**AGAINST THE AWARD IN OPMV 2277/2004 DATED 05-05-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM**
## **APPELLANT/S:**
- **1 BINCY THOMAS W/O.LATE THOMAS Y., SANTHOSH BHAVAN,, HOSPITAL JUNCTION, KUNDARA P.O.,, KOLLAM DISTRICT.**
- **2 FEBA THOMAS DO.LATE THOMAS Y. AGED 11 YEARS, DATE OF BIRTH 28-1-98, A MINOR, REP. BY HER MOTHER AND NEXT FRIEND, BINCY THOMAS, SANTHOSH BHAVAN, KUNDARA P.O.,, KOLLAM DISTRICT.**
- **3 EMILINE R.THOMAS DO.LATE THOMAS Y. AGED 6 YEARS, DATE OF BIRTH 10-2-2003, REP. BY HER MOTHER AND NEXT FRIEND AND NEXT, FRIEND BINCY THOMAS, SANTHOSH BHAVAN,, KUNDARA P.O., KOLLAM DISTRICT.**
- **4 MRS.THANKAMMA YOHANNAN AGED 65 YEARS MOTHER OF LATE THOMAS Y., SANTHOSH BHAVAN, KUNDARA P.O., KOLLAM DISTRICT.**
**BY ADV. SRI.K.V.RAJAN**
## **RESPONDENT/S:**
**THE MANAGING PARTNER COCHIN UNIVERSITY ROAD, SOUTH KALAMASSERY,, ERNAKULAM.**
**R1 BY ADV. SRI.K.A.HASHIM R1 BY ADV. SRI.JOHN JOSEPH VETTIKAD R1 BY ADV. SRI.JOHNSON ABRAHAM R1 BY ADV. SRI.LAL GEORGE**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2021, ALONG WITH MACA.2701/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**MACA.No.2695 OF 2009 & conn. Cases**
**2**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN**
**WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942**
## **MACA.No.2701 OF 2009**
**AGAINST THE AWARD IN OPMV 2281/2004 DATED 05-05-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM**
## **APPELLANT/S:**
- **1 ANILA A KUMAR AND OTHERS W/O.LATE ASHA KUMAR, AATHIRA, PUVVATHUKATTIL HOUSE, THEKKINEZHATHUNIRAPPU, CHOTTANICKARA PO,, ERNAKULAM DISTRICT.**
- **2 MISS. P.A.AATHIRADO. LATE ASHA KUMAR AGED 12 YEARS, DATE OF BIRTH 04-08-1997, A MINOR, REP BY HER MOTHER AND NEXT FRIEND, ANILA A KUMAR,AATHIRA, PUVVATHUKATTIL HOUSE, CHOTTANICKARA PO, ERNAKULAM DISTRICT.**
- **3 MR.P.K.GANGADHARAN AGED 69 YEARS S/O.KESAVAN, AATHIRA, PUVVATHUKATTIL HOUSE, CHOTTANICKARA PO, ERNAKULAM DISTRICT.**
- **4 MRS.SARADA GANGADHARAN AGED 60 YEARS W/O.GENGADHARAN, AATHIRA, PUVVATHUKATTIL HOUSE, CHOTTANICKARA PO, ERNAKULAM DISTRICT. BY ADV. SRI.K.V.RAJAN**
## **RESPONDENT/S:**
- **1 THE MANAGING PARTNER HIND AGENCIES, COCHIN UNIVERSITY ROAD, SOUTH KALAMASSERY, ERNAKULAM.**
- **2 NATIONAL INSURANCE CO.LTD DIVISIONAL OFFICE, KOCHI.**
- **3 MONIKAMMA VELLAKADA VELLAKADA HOUSE MANIMALA, CHERUVALLY P.O.,, KOTTAYAM DISTRICT 686 543.**
- **4 UNITED INDIA INSURANCE CO.LTD DAIVASABAYAM BUILDING, K.K. ROAD, PONKUNNAM, PIN 686 506**
- **5 C.J.JOHN SO.JOSEPH CHARANGATTU HOUSE, NEAR HOLY FAMILY CHURCH, KALAVOOR, AMBALAPUZHA TALUK, ALAPUZHA DT. R1, R4 BY ADV. SMT.DEEPA GEORGE R1 BY ADV. SRI.LAL GEORGE**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2021, ALONG WITH MACA.2695/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**MACA.No.2695 OF 2009 & conn. Cases**
**3**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN**
**WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942**
## **MACA.No.2702 OF 2009**
**AGAINST THE AWARD IN OPMV 2280/2004 DATED 05-05-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM**
## **APPELLANT/S:**
- **1 MINI MATHAI AND OTHERS AGED 38 YEARS,W/O.LATE MATHAI M.THAZHATHOOT,, THAZHATHOOT HOUSE,THIRUVANKULAM P.O.,, ERNAKULAM DISTRICT.**
- **2 EDWIN MATHAI S/O.LATE MATHAI M.THAZHATHOOT,AGED 14 YEARS,, DATE OF BIRTH14-6-95,A MINOR,REP.BY HIS, MOTHER AND NEXT FRIEND MINI MATHAI,, THAZHATHOOT HOUSE,THIRUVANKULAM P.O.,, ERNAKULAM DISTRICT.**
- **3 KEVIN MATHAI S/O.LATE MATHAI M.THAZHATHOOT,AGED 8 YEARS,, DATE OF BIRTH-1112-2000,REPRESENTED BY HIS, MOTHER AND NEXT FRIEND MINI MATHAI,, THAZHATHOOT HOUSE,THIRUVANKULAM P.O.,, ERNAKULAM DISTRICT.**
**BY ADV. SRI.K.V.RAJAN**
## **RESPONDENT/S:**
- **1 THE MANAGING PARTNER, HIND AGENCIES AND HIND AGENCIES,COCHIN UNIVERSITY ROAD,, SOUTH KALAMASSERY,ERNAKULAM.**
- **2 NATIONAL INSURANCE CO.LTD. DIVISIONAL OFFICE,KOCHI.**
- **3 MONIKAMMA VELLAKADA VELLAKADA HOUSE,MANIMALA,CHERUVALLY P.O.,, KOTTAYAM DISTIRCT686543.**
- **4 UNITED INDIA INSURANCE CO.LTD. DAIVASAHAYAM BUILDING,K.K.ROAD,, PONKUNNAM,PIN-686506.**
- **5 C.J.JOHNSO.JOSEPH CHARANGATTU HOUSE,NEAR HOLY FAMILY CHURCH,, KALAVOOR,AMBALAPUZHA TALUK,ALAPUZHA DISTRICT.**
- **6 ANILA A.KUMARWO.LATE ASHA KUMAR PUVATHUKATTIL HOUSE,CHOTTANIKKARA P.O.,, ERNAKULAM DISTRICT. R1, R4 BY ADV. SMT.DEEPA GEORGE R1 BY ADV. SRI.LAL GEORGE**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2021, ALONG WITH MACA.2695/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**MACA.No.2695 OF 2009 & conn. Cases**
**4**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN**
**WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942**
## **MACA.No.2703 OF 2009**
**AGAINST THE AWARD IN OPMV 2278/2004 DATED 05-05-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM**
## **APPELLANT/S:**
|**1**|**RENUKA THILAKAN**|
|---|---|
||**AGED 55 YEARS,W/O.LATE C.V.THILAKAN,, SHIJITHRA**|
||**HOUSE,KAVARAPARAMPU,, IRIMPANAM P.O.,KOCHI-682 309.**|
|**2**|**MISS.SHINCE C.THILAKAN**|
||**AGED 26 YEARS,D/O.LATE C.V.THILAKAN,, SHIJITHRA**|
||**HOUSE,IRIMPANAM P.O.,KOCHI.**|
|**3**|**MISS.CHITHIRA C.THILAKAN**|
||**AGED 23 YEARS,D/O.LATE C.V.THILAKAN,, SHIJITHRA**|
||**HOUSE,IRIMPANAM P.O.,KOCHI.**|
||**BY ADV. SRI.K.V.RAJAN**|
|**NT/S**<br>**:**||
|**1**|**THE MANAGING PARTNER**|
||**HIND AGENCIES,COHIN UNIVERSITY ROAD,, SOUTH**|
||**KALAMASSERY,ERNAKULAM.**|
|**2**|**NATIONAL INSURANCE CO.LTD.**|
||**DIVISIONAL OFFICE,KOCHI.**|
|**3**|**MONIKAMMA VELLAKADA**|
||**VELLAKADA HOUSE,MANIMALA,CHERUVALLY P.O.,, KOTTAYAM DISTRICT-**|
||**686543.**|
|**4**|**UNITED INDIA INSURANCE CO.LTD.**|
||**DAIVASAHAYAM BUILDING,K.K.ROAD,, PONKUNNAM,PIN-686506.**|
|**5**|**C.J.JOHNSO.JOSEPH**|
||**CHARANGATTU HOUSE,NEAR HOLY FAMILY CHURCH,,**|
||**KALAVOOR,AMBALAPUZHA TALUK,ALAPUZHA DISTRICT.**|
|**6**|**ANILA A.KUMARWO.LATE ASHA KUMAR**|
||**PUVATHUKATTIL HOUSE,CHOTTANIKKARA P.O.,, ERNAKULAM DISTRICT.**|
||**R1 BY ADV. SRI.K.A.HASHIM**|
||**R1 BY ADV. SRI.LAL GEORGE**|
## **RESPONDENT/S:**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2021, ALONG WITH MACA.2695/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**MACA.No.2695 OF 2009 & conn. Cases**
**5**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN**
**WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942**
**MACA.No.2706 OF 2009**
**AGAINST THE AWARD IN OPMV 2279/2004 DATED 05-05-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM**
## **APPELLANT/S:**
|**1**|**MARY GEETHA**|
|---|---|
||**AGED 35 YEARS,W/O.LATE G.GEORGE,TEENA COTTAGE,,**|
||**AKATHUPADAM ROAD,THIRUVANKULAM P.O.,, ERNAKULAM**|
||**DISTRICT.**|
|**2**|**MISS.TEENA GEORGEDO.LATE G.GEORGE**|
||**AGED 14 YEARS,DATE OF BIRTH-13-5-95,A MINOR,, REP.BY HER**|
||**MOTHER AND NEXT FRIEND MARY GEETHA,, TEENA**|
||**COTTAGE,AKATHUPADAM ROAD,THIRUVANKULAM P.O.,, ERNAKULAM**|
||**DISTRICT.**|
|**3**|**MISS.DEREENA GEORGEDO.LATE G.GEORGE**|
||**AGED 8 YEARS,DATE OF BIRTH-9-7-01,, REPRESENTED BY HER**|
||**MOTHER AND NEXT FRIEND, MARY GEETHA,TEENA**|
||**COTTAGE,THIRUVANKULAM P.O.,, ERNAKULAM DISTRICT.**|
|**4**|**MRS.AMALOLPAVAM**|
||**AGED 68 YEARS,MOTHER OF LATE G.GEORGE,, TEENA**|
||**COTTAGE,THIRUVANKULAM P.O.,, ERNAKULAM DISTRICT.**|
||**BY ADV. SRI.K.V.RAJAN**|
## **RESPONDENT/S:**
**1 THE MANAGING PARTNER, HIND AGENCIES HIND AGENCIES,COCHIN UNIVERSITY ROAD,, SOUTH KALAMASSERY,ERNAKULAM. 2 NATIONAL INSURANCE CO.LTD. DIVISIONAL OFFICE,KOCHI. R1 BY ADV. SRI.K.A.HASHIM R1 BY ADV. SRI.LAL GEORGE**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2021, ALONG WITH MACA.2695/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**MACA.No.2695 OF 2009 & conn. Cases**
**6**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN**
**WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942**
**MACA.No.2954 OF 2009**
**AGAINST THE AWARD IN OPMV 2277/2004 DATED 05-05-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM**
## **APPELLANT/S:**
**THE UNITED INDIA INSURANCE CO.LTD, PONKUNNAM BRANCH, REPRESENTED BY THE, UNITED INDIA INSURANCE CO. LTD.,, OFFICE OF THE REGIONAL MANAGER,, HOSPITAL ROAD, ERNAKULAM.**
**BY ADV. SMT.DEEPA GEORGE**
## **RESPONDENT/S:**
|**1**|**MR.BINCY THOMAS**|
|---|---|
||**W/O.LATE THOMAS.Y.**|
||**SANTHOSH BHAVAN, HOSPITAL JUNCTION,, KUNDARA.P.O, KOLLAM**|
||**DISTRICT.**|
|**2**|**FEBA THOMAS**|
||**DO. LATE THOMAS.Y**|
||**A MINOR, REP. BY HER MOTHER AND NEXT FRIEND, BINCY THOMAS,**|
||**SANTHOSH BHAVAN,, KUNDARA.P.O, KOLLAM DISTRICT.**|
|**3**|**EMILINE.R. THOMAS**|
||**D/O. LATE THOMAS.Y,, -DO-**|
|**4**|**MR. THANKAMMA YOHANNAN**|
||**M/O LATE THOMAS.Y,, SANTHOSH BHAVAN, KUNDARA.P.O, KOLLAM**|
||**DISTRICT.**|
|**5**|**THE MANAGING PARTNER HIND AGENCIES**|
||**COCHIN UNIVERSITY ROAD,, SOUTH KALAMASSERY, ERNAKULAM.**|
|**6**|**THE NATIONAL INSURANCE CO. LTD.**|
||**DIVISIONAL OFFICE, KOCHI.**|
|**7**|**MONIKAMMA VELLAKKADA VELLAKADA HOUSE**|
||**MANIMALA, CHERUVALLY.P.O,, KOTTAYAM DISTRICT.**|
|**8**|**C.J. JOHN**|
||**S/O.JOSEPH**|
||**CHARANGATTU HOUSE,, NEAR HOLY FAMILY CHURCH,, KALAVOOR**|
||**VILLAGE,, AMBALAPPUZHA TALUK, ALAPPUZHA DISTRICT.**|
|**9**|**ANILA.A KUMAR**|
||**W/O. LATE ASHA KUMAR**|
||**AATHIRA, PUVVATHUKATTIL HOUSE,, CHOTTANIKKARA.P.O, ERNAKULAM.**|
||**R1, R6 BY ADV. SRI.LAL GEORGE**|
||**R1 BY ADV. SRI.K.V.RAJAN**|
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2021, ALONG WITH MACA.2695/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**MACA.No.2695 OF 2009 & conn. Cases**
**7**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN**
**WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942**
## **MACA.No.2978 OF 2009**
**AGAINST THE AWARD IN OPMV 2279/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM**
## **APPELLANT/S:**
**THE UNITED INDIA INSURANCE CO. LTD.**
**PONKUNNAM BRANCH REPRESENTED BY THE, UNITED INDIA INSURANCE CO.LTD., OFFICE OF THE REGIONAL MANAGER,, HOSPITAL ROAD, ERNAKULAM.**
## **BY ADV. SMT.DEEPA GEORGE**
## **RESPONDENT/S:**
- **1 MRS.MARY GEETHA W/O.LATE G.GEORGE TEENA COTTAGE, AKATHUPADAM ROAD,, THIRAVANKULAM P.O.,ERNAKULAM**
- **2 MISS.TEENA GEORGE DO.LATE G.GEORGE D/O.LATE G.GEORGE A MINOR, REP.BY HER MOTHER AND NEXT FRIEND, MARY GEETHA, -DO-DO-**
- **3 MISS.DEREENA GEORGE D/O.LATE G.GEORGE, -DO- -DO-**
- **4 MRS.AMALOLPAVAM -MOTHER OF LATE G.GEORGE -DO- -DO**
- **5 THE MANAGING PARTNER HIND AGENCIES COCHIN UNIVERSITY ROAD, SOUTH KALAMASSERY,, ERNAKULAM.**
- **6 THE NATIONAL INSURANCE CO.LTD. DIVISIONAL OFFICE, KOCHI.**
- **7 MONIKAMMA VELLAKADA VELLAKADA HOUSE MANIMALA, CHERUVALLY P.O.,KOTTAYAM DISTRICT.**
- **8 C.J.JOHNSO.JOSEPH CHARANGATTU HOUSE NEAR HOLY FAMILY CHURCH, KALAVOOR VILLAGE,, AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT.**
- **9 ANILA A.KUMAR WO.LATE ASHA KUMAR AATHIRA, PUVVATHUKATTIL HOUSE,, CHOTTANIKKARA P.O., ERNAKULAM. R1 BY ADV. SRI.K.V.RAJAN R1 BY ADV. SRI.K.A.HASHIM R1 BY ADV. SRI.LAL GEORGE**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2021, ALONG WITH MACA.2695/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**MACA.No.2695 OF 2009 & conn. Cases**
**8**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN**
**WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942**
## **MACA.No.2986 OF 2009**
## **AGAINST THE AWARD IN OPMV 2281/2004 DATED 05-05-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM**
## **APPELLANT/S:**
**THE UNITED INDIA INSURANCE CO.LTD**
**PONKUNNAM BRANCH REPRESENTED BY THE, UNITED INDIA INSURANCE CO.LTD, OFFICE OF THE, REGIONAL MANAGER, HOSPITAL ROAD, ERNAKULAM.**
**BY ADV. SMT.DEEPA GEORGE**
## **RESPONDENT/S:**
- **1 ANILA A. KUMAR W/O. LATE ASHA KUMAR, AATHIRA, PUVVATHUKATTIL HOUSE, THEKKINEXHATHUNIRAPPU, CHOTTANIKKARA PO,ERNAKULAM.**
- **2 MISS.P.A.AATHIRA, D/O.LATE ASHA KUMAR, A MINOR, REP BY HER MOTHER, NEXT FRIEND ANIL A KUMAR, DO.....DO..**
- **3 MR. P.K.GANGADHARAN, S/O. KESAVAN, DO..DO...**
- **4 MRS. SARADA GANGADHARAN, W/O. GANGADHARAN, DO..DO...**
- **5 THE MANAGING PARTNER, HIND AGENCIES, COCHIN UNIVERSITY ROAD, SOUTH KALAMASSERY, ERNAKULAM.**
- **6 THE NATIONAL INSURANCE CO.LTD DIVISIONAL OFFICE, KOCHI.**
- **7 MONIKAMMA VELLAKADA, VELLAKADA HOUSE, MANIMALA, CHERUVALLY P.O.,KOTTAYAM DISTRICT.**
- **8 C.J.JOHN, S/O. JOSEPH, CHARANGATTU HOUSE, NEAR HOLY FAMILY CHURCH, KALAVOOR VILLAGE, AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT.**
**R1 BY ADV. SRI.LAL GEORGE R6 BY ADV. SMT.SARAH SALVY**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2021, ALONG WITH MACA.2695/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**MACA.No.2695 OF 2009 & conn. Cases**
**9**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN**
**WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942**
## **MACA.No.3134 OF 2009**
**AGAINST THE AWARD IN OPMV 2280/2004 DATED 05-05-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM**
## **APPELLANT/S:**
**THE UNITED INDIA INSURANCE CO.LTD**
**PONKUNNAM BRANCH REPRESENTED BY THE, UNITED INDIA INSURANCE CO.LTD.,, OFFICE OF THE REGIONAL MANAGER,, HOSPITAL ROAD, ERNAKULAM.**
## **BY ADV. SMT.DEEPA GEORGE**
## **RESPONDENT/S:**
- **1 MRS.MINI MATHAI W/O.LATE MATHAI M.THAZHATHOOT,, THAZHATHOOT HOUSE, THIRUVANKULAM P.O.,, ERNAKULAM.**
- **2 EDWIN MATHAI S/O.LATE MATHAI M.THAZHATHOOT,, A MINOR, REP. BY HER MOTHER & NEXT FRIEND, MINI MATHAI, -DO- -DO- -DO-**
- **3 KEVIN MATHAI S/O.LATE MATHAI M.THAZHATHOOT,, REP. BY HER MOTHER & NEXT FRIEND, MINI MATHAI, -DO- -DO- -DO-**
- **4 THE MANAGING PARTNER HIND AGENCIES, COCHIN UNIVERSITY ROAD,, SOUTH KALAMASSERY, ERNAKULAM.**
- **5 THE NATIONAL INSURANCE CO.LTD. DIVISIONAL OFFICE, KOCHI.**
- **6 MONIKAMMA VELLAKADA VELLAKADA HOUSE MANIMALA, CHERUVALLY P.O.,, KOTTAYAM DISTRICT.**
- **7 C.J.JOHN SO.JOSEPH CHARANGATTU HOUSE, NEAR HOLY FAMILY CHURCH,, KALAVOOR VILLAGE, AMBALAPUZHA TALUK,, ALAPPUZHA DISTRICT.**
- **8 ANILA A.KUMAR WO.LATE ASHA KUMAR AATHIRA, PUVVATHUKATTIL HOUSE,, CHOTTANIKKARA P.O., ERNAKULAM. R1 BY ADV. SRI.K.V.RAJAN R5 BY ADV. SRI.LAL GEORGE R8 BY ADV. SRI.K.A.HASHIM**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2021, ALONG WITH MACA.2695/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**MACA.No.2695 OF 2009 & conn. Cases**
**10**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN**
**WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942**
## **MACA.No.3139 OF 2009**
**AGAINST THE AWARD IN OPMV 2278/2004 DATED 05-05-2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM**
## **APPELLANT/S:**
**THE UNITED INDIA INSURANCE CO.LTD PONKUNNAM BRANCH REPRESENTED BY THE, ASSISTANT MANAGER, UNITED INDIA INSURANCE CO.LTD, OFFICE OF THE REGIONAL MANAGER, HOSPITAL ROAD, ERNAKULAM.**
- **BY ADV. SMT.DEEPA GEORGE**
- **:**
- **1 MRS.RENUKA THILAKAN W/O.LATE C.V.THILAKAN, SHIJITHRA HOUSE, KAVARAPARAMPU, IRIMPANNAM PO, KOCHI.**
- **2 MISS. SHINCE.C.THILAKAN D/O.LATE C.V.THILAKAN,SHIJITHRA HOUSE,, IRIMPANAM PO,KOCHI.**
- **3 MISS.CHITHIRA C THILAKAN D/O.LATE C.V.THILAKAN,SHIJITHRA HOUSE,, IRIMPANAM PO,KOCHI.**
- **4 MRS.KARTHYAYANI VELANDY MOTHER OF C.V.THILAKAN,, CHIRAYATH HOUSE, MANALOOR PO, THRISSUR.**
- **5 THE MANAGING PARTNER HIND AGENCEIS,COCHIN UNIVERSITY ROAD, SOUTH KALAMASSERY,ERNAKULAM.**
- **6 THE NATIONAL INSURANCE CO.LTD DIVISIONAL OFFICE,KOCHI.**
- **7 MONIKAMMA VELLAKADA VELLAKKADA HOUSE MANIMALA, CHERUVALLY PO, KOTTAYAM DISTRICT**
- **8 C.J.JOHN SO.JOSEPHCHARANGATTU HOUSE NEAR HOLY FAMILY CHURCH,KALAVOOR CHURCH, AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT.**
- **9 ANILA A KUMAR WO.LATE ASHA KUMAR AATHIRA, PUVVATHUKATTIL HOUSE, CHOTTANIKKARA PO, ERNAKULAM. R1 BY ADV. SRI.LAL GEORGE R1 BY ADV. SRI.K.V.RAJAN**
## **RESPONDENT/S:**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.03.2021, ALONG WITH MACA.2695/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**MACA.No.2695 OF 2009 & conn. Cases**
**11**
## **P.V.KUNHIKRISHNAN, J**
- **---------------------------------------------------------**
- **M.A.C.A. Nos.2695, 2701, 2702, 2703, 2706, 2954, 2978, 2986, 3134 & 3139 of 2009 -----------------------------------------------------Dated this the 10[th] day of March, 2021**
## **JUDGMENT**
These ten appeals are connected and therefore, I am disposing these ten appeals by a common judgment. MACA No.3139/2009, 3134/2009, 2986/2009, 2978/2009 and 2954/2009 are filed by the United India Insurance Company Ltd. challenging the award in O.P. (M.V.) No.2278/2004, 2280/2004, 2281/2004, 2279/2004 and 2277/2004 on the file of the Motor Accidents Claims Tribunal, Ernakulam.
2. MACA Nos.2701/2009, 2706/2009, 2703/2009, 2695/2009 and 2702/2009 are filed by the claimants in the above five O.P.(M.V.)s. Therefore, all these ten appeals are connected and I am disposing of these ten appeals by a common judgment. All the five cases are tried together by the Motor Accidents Claims Tribunal, Ernakulam and passed a common award. Therefore, I am taking MACA No.2701/2009 as the main case, which is filed against the award in O.P.(M.V.) No.2281/2004. Hereinafter, the parties are mentioned in accordance to their rank before the Tribunal.
3. The short facts are like this : On 8.5.2004, five technical staff of Kochi Refinery, namely,
**MACA.No.2695 OF 2009 & conn. Cases**
**12**
Thomas, Thilakan, George, Mathai and Asha Kumar were travelling in a Maruthi Zen car after attending a Baptism ceremony of the child of one of their colleague. The car was driven by Asha Kumar. About 1.30 pm, the car collided with an oncoming tanker lorry driven by the 5[th] respondent in O.P.(M.V.) No.2281/2004 from the western side of toll booth of UP bridge, Thevara. As a result, all the inmates including the driver sustained fatal injuries. Four of the passengers in the car succumbed to the injuries immediately and one succumbed to the injuries on the way to the hospital. Respondent Nos. 1 and 2 in O.P. (M.V.) No.2281/2004 are the owner and insurer of the offending lorry and respondent Nos. 3 and 4 in the above O.P.(M.V.) are the insured and insurer of the car involved in the accident. The widows of Thomas, Thilakan, George, Mathai and Asha Kumar filed five claim petitions before the Tribunal claiming compensation. All the claim petitions were considered by the Tribunal together and joint trial was ordered.
4. To substantiate the case, Exts. A1 to A60 were marked on the side of the claimants. PW1 to PW7 were examined on the side of the claimants. No evidence was adduced by the respondents. After going through the evidence and documents, the Tribunal allowed O.P.(M.V.) Nos.2279/2004, 2278/2004, 2277/2004 and 2280/2004 and granted compensation to the legal heirs of the deceased involved in those cases. But O.P.(M.V.) No. 2281/2004 was dismissed by the
**MACA.No.2695 OF 2009 & conn. Cases**
**13**
Tribunal concluding that the deceased in that case was the driver of the car, and he was rash and negligent, which resulted in the accident. Aggrieved by the dismissal of O.P.(M.V.) No.2281/2004, MACA No.2701/2009 was filed by the claimants/petitioners. The other four appeals are filed by the claimants for enhancement of the compensation.
5. The Insurance Company filed five appeals (MACA Nos.3139/2009, 3134/2009, 2986/2009, 2978/2009 and 2954/2009) challenging the conclusions of the Tribunal about the negligence as well as the quantum fixed by the Tribunal.
6. Heard counsel for the appellants and counsel appearing for the Insurance Company.
7. The counsel for the appellants submitted that the claimants proved that the accident occurred because of the rash and negligent driving by the driver of the lorry. According to the counsel, in the light of the evidence of PW6 coupled with the entries in the scene mahazar, which is marked as Ext.A13, the negligence on the part of the driver of the lorry is proved. Therefore, the counsel submitted that the Tribunal erred in dismissing O.P.(M.V.) No.2281/2004. The counsel also submitted that even if this Court found that there is some negligence on the part of the driver of the car, it can be only a composite negligence on the part of the driver of the car. 50% negligence ought to have been attributed on the part of the driver of
**MACA.No.2695 OF 2009 & conn. Cases**
**14**
the car and 50% to the driver of the lorry. The counsel submitted that the Tribunal erred in concluding that the driver of the car is rash and negligent, which resulted in the accident.
8. The counsel for the appellant/United India Insurance Company Ltd. submitted that the Tribunal erred in attributing negligence on the part of the driver of the car. According to the counsel, there is composite negligence on the part of the driver of the lorry also. The counsel submitted that since it is a head on collision, the composite negligence ought to have attributed to both the vehicles. The learned counsel relied the judgment of the Apex Court in **Bijoy Kumar Dugar** v. **Bidyadhar Dutta & Ors.** [2006 (2) SCW 1116]. The counsel submitted that the front side of both vehicles were completely damaged. It was a head on collision in a highway.
9. The counsel who appeared for the National Insurance Company Ltd., who is the insurer of the lorry involved in this case submitted that the Tribunal rightly concluded that the driver of the car was rash and negligent, which resulted in the accident. The counsel relied the judgment of this Court in **New India Assurance Company Ltd.v. Pazhaniammal** [2011 (3) KLT 648] in which it is stated that the production of police charge sheet is prima facie sufficient evidence to fix negligence for the purpose of a claim under Sec.166 of the Motor Vehicles Act. The counsel also relied the judgment of this Court in **Philippose Cherian And Anr. vs T.A.**
**MACA.No.2695 OF 2009 & conn. Cases**
**15**
**Edward Lobo And Anr.** [1991 ACJ 634], in which the relevancy of the scene mahazar is explained by this Court. The counsel submitted that principle of res ipsa loquitur is applicable in the facts and circumstances of this case. According to the counsel, in the light of the above judgment, the Tribunal perfectly justified in concluding that the driver of the car is negligent, which resulted to the accident. The counsel also submitted that it is not a head on collision in the Highway. Therefore, the counsel submitted that this Court may not interfere with the award passed by the Tribunal.
10. The first point to be decided in this case is about negligence. Whether the driver of the car or whether the driver of the lorry is negligent ? It is true that in **Pazhaniammal’s** case (supra), this Court observed that the final report submitted by the Police before a court in a criminal case is prima facie evidence to prove the negligence while considering an application under Sec.166 of the Motor Vehicles Act. But the final report submitted by the police before the criminal court is not the Bible to decide the negligence in all accident case. Even if, in a particular case, the final report is filed by the police against one driver, the claimants before the Tribunal can adduce evidence to establish that the other vehicle involved in the accident is negligent. This Court only explained that the final report is only a prima facie sufficient evidence to prove the negligence while considering an application under Sec.166 of the Motor Vehicles Act.
**MACA.No.2695 OF 2009 & conn. Cases**
**16**
Even if a final report submitted by the Police is produced before the Tribunal, any of the party can adduce evidence independently to show that there is negligence on the part of the driver of another vehicle. The final report submitted by the police will only prima facie establish the negligence.
11. To substantiate the case of negligence, the claimants examined PW1 to PW7. Among these witnesses, PW1 to PW4 and PW7 are the widows of the deceased involved in these five claim petitions. Admittedly, they are not eye witnesses to the accident. PW5 is the Personal Manager of Kochi Refinery and he is examined not to prove the negligence. PW6 is the star witness examined by the claimants to prove the accident and negligence. The Tribunal rejected the evidence of PW6 because his evidence is not helpful to either the claimants or respondents. If the evidence of PW6 is also rejected, there is no other oral evidence to prove the accident or to prove the negligence on the part of the drivers. In such situation the Tribunal relied the final report submitted by the police and also the scene mahazar produced along with the final report to conclude that the driver of the car is negligent.
12. The counsel for the claimants submitted that from the facts and circumstances in this case and also based on the entries in the scene mahazar, it is clear that the driver of the lorry is negligent, which resulted to the accident. The counsel also submitted that even
**MACA.No.2695 OF 2009 & conn. Cases**
**17**
if this Court found that the driver of the lorry is not the sole person, which resulted to the accident, atleast there is contributory negligence on the part of the driver. But there is no evidence to prove these facts. There is no oral evidence also to substantiate the case. According to the counsel for the appellant, the driver of the lorry was a charge witness in the final report submitted by the Police before the criminal court. If he is examined, this aspect can be proved by the claimants. The counsel for the claimants submitted that he may be given an opportunity to examine the driver of the lorry or any other eye witness, who actually seen the accident. It is a case in which five persons lost their life. Their widows are the claimants. One of the claim petition is dismissed by the Tribunal, because the deceased in that case is the driver of the car and he is responsible for the accident. But the Tribunal relied only the final report submitted by the Police before the criminal court and other circumstances for reaching such a conclusion. Of course, the counsel appearing for the National Insurance Company Ltd., which is the insurer of the lorry submitted that no further opportunity may be given to the claimants because all the available evidence were adduced before the Tribunal and thereafter, the Tribunal passed a final award. According to me, one more opportunity can be given to the claimants to adduce further evidence in the facts and circumstances of this case. As I said earlier, one of the claim petition was dismissed in toto by the Tribunal
**MACA.No.2695 OF 2009 & conn. Cases**
**18**
concluding that the deceased in that case is the driver of the car, which resulted in the accident. According to the counsel for the claimants, there is atleast contributory negligence on the part of the driver of the lorry also. While considering a claim petition under Sec.166 of the Motor Vehicles Act, the Court has to look into the realities. There cannot be any technical approach while considering a claim petition under Sec.166 of the Motor Vehicles Act. It is a beneficial legislation. Here is a case where five persons lost their life. Their legal heris came before the Tribunal for getting compensation. Four claim petitions were allowed and the fifth claim petition was dismissed saying that the deceased involved in that case is negligent, which resulted in the accident. Now, all the claimants submit before this Court that the driver of the car is not negligent and accident happened because of the negligence on the part of the driver of the lorry. Hence, the claimants pray that they may be allowed to adduce further evidence to prove this aspect. This Court cannot shut its eye to such a submission. Therefore, according to me, in the interest of justice, the impugned awards can be set aside and can remand the matter to the Tribunal. But I make it clear that the compensation already awarded to the claimants need not be interfered. The claimants in the other case are allowed to adduce further evidence for enhancement of compensation.
13. Therefore, these appeals are disposed of in the following
**MACA.No.2695 OF 2009 & conn. Cases**
**19**
## manner:
1. The impugned awards in all these appeals are set aside.
2. The Motor Accidents Claims Tribunal, Ernakulam is directed to restore O.P.(M.V.) Nos.2281/2009, 2279/2004, 2278/2009, 2277/2004 and 2280/2004 into file and dispose these claim petitions afresh after giving opportunity to both sides to adduce additional evidence. But I make it clear that no denova trial is necessary.
3. I make it clear that I have not considered the merit of the case and the Tribunal is free to decide afresh about the negligence part in this case, untrammeled by any observation in this judgment.
4. These claim petitions are filed in the year 2004 and therefore, the Tribunal will dispose these claim petitions as expeditiously as possible, at any rate, within 7 months from the date of receipt of a copy of this judgment.
5. Amount if any deposited while filing the appeals by the Insurance Company will be adjusted at the time of passing the final award.
sd/- **P.V.KUNHIKRISHNAN JUDGE**
SKS