MACA Nos. 521 of 2009 & 1131 of 2010 — P. P. Velayudhan v. Lukose; Kerala State Insurance Department v. P. P. Velayudhan and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 11[TH] DAY OF AUGUST 2021 / 20TH SRAVANA, 1943** **MACA NO. 521 OF 2009** **AGAINST THE AWARD IN OP(MV)NO.1359/2004 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL , MANJERI, MALAPPURAM** ## **APPELLANT/PETITIONER:** **P.P.VELAYUDHAN, AGED 48 YEARS, S/O. CHELLY, UNNIYAIKKAL HOUSE,, OORAKOM, KEEZHMURI.P.O,, MALAPPURAM DISTRICT.** **BY ADV SRI.P.SAMSUDIN** ## **RESPONDENTS:** - **1 LUKOSE, HC 1168, D.L NO. Q 683/68,, MUTHIRAVILA HOUSE, KARULAI.P.O,, NILAMBUR, MALAPPURAM DISTRICT.** - **2 THE DISTRICT POLICE SUPERINTENDENT MALAPPURAM.** - **3 KERALA STATE INSURANCE DEPARTMENT DISTRICT INSURANCE OFFICE,, MALAPPURAM.** **BY ADV SRI.VINOD VALLIKAPPAN BY GOVERNMENT PLEADER SMT. K.G.SAROJINI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.08.2021, ALONG WITH MACA.1131/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos. 521 of 2009 & 1131 of 2010 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 11[TH] DAY OF AUGUST 2021 / 20TH SRAVANA, 1943** **MACA NO. 1131 OF 2010** **AGAINST THE AWARD IN OP(MV)NO.1359/2004 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL , MANJERI, MALAPPURAM** **APPELLANT/PETITIONER:** **KERALA STATE INSURANCE DEPARTMENT REPRESENTED BY ITS DISTRICT INSURANCE OFFICER,, MALAPPURAM.** **BY GOVERNMENT PLEADER SMT. K.G.SAROJINI** ## **RESPONDENTS:** - **1 P.P.VELAYUDHAN UNNIYALIKKAL HOUSE, OORAKAM KEEZMURI P.O.,, MALAPPURAM.** - **2 LUKOSE H.C.1168MUTHIRAVILA HOUSE D.L.NO.Q683/68, DRIVER, KARNIAI P.O.,, NILAMBUR, MALAPPURAM DIST.** - **3 THE DISTRICT POLICE SUPERINTENDENT MALAPPURAM.** **BY ADVS. SRI.P.SAMSUDIN SRI.VINOD VALLIKAPPAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.08.2021, ALONG WITH MACA.521/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos. 521 of 2009 & 1131 of 2010 3 ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA Nos. 521 of 2009 & 1131 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of August, 2021 ## **COMMON JUDGMENT** As these appeal arise out of the same award in OP(MV)No.1359 of 2004 on the file of the Motor Accidents Tribunal, Manjeri, they are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 02.08.2001. 3. The petitioner has averred in the claim petition that he was an Assistant Sub Inspector of Police in the Vigilance Police Station, Malappuram. MACA Nos. 521 of 2009 & 1131 of 2010 4 On 02.08.2001, while he was travelling in a police Jeep bearing registration No.KLL/6944 (Jeep), when the vehicle reached a place named Pallikulam in Kalikavu amsom, the vehicle capsized. The petitioner sustained serious injuries including a fracture. The accident occurred as the Jeep had capsized. The 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the Jeep. The petitioner is entitled to a total compensation of Rs.7,44,000/- from the respondents, which was limited to Rs.2,00,000/4. The 1[st] respondent filed a written statement admitting that he was the driver of the Jeep. Nevertheless, he contended that the accident occurred due to the mechanical defect in the Jeep and that there was no negligence on his part. 5. The 2[nd] respondent filed a written statement admitting the ownership of the Jeep. The 2[nd] MACA Nos. 521 of 2009 & 1131 of 2010 5 respondent contended that the Jeep had a valid insurance coverage with the 3[rd] respondent. 6. The 3[rd] respondent filed a written statement admitting that the Jeep was covered by a valid insurance policy. 7. The petitioner produced and marked Exts.A1 to A4 series in evidence. The 1[st] respondent produced and marked Exts.B1 and B2 in evidence. 8. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioner to realise an amount of Rs.62,904/- with interest cost from the 3[rd] respondent. 9. Dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner has filed MACA No.521 of 2009 and aggrieved by the awarding of compensation, the 3[rd] MACA Nos. 521 of 2009 & 1131 of 2010 6 respondent has filed MACA No.1131 of 2010. 10. Heard Sri.P.Samsudin, the learned counsel for the appellant/petitioner in MACA No.521 of 2009 and Smt.K.G.Sarojini, the learned Government Pleader appearing for the appellant/insurer/3[rd] respondent in MACA No.1131 of 2010. 11. The sole question that arises for consideration in these appeals is whether the impugned award passed by the Tribunal is justifiable or not? 12. The specific case of the petitioner in the claim petitioner is as follows:- “On the date of accident the applicant was travelling in the Police Jeep bearing No.KLL/6944 on duty and which it reached at spot called Pallikulam in Kalikavu amsom the vehicle capsized. In that accident the appellant sustained severe injuries including fracture. The injury sustained to the petitioner is out of use of the vehicle and as such the petitioner is entitled to get compensation for the loss sustained by him and the respondents are MACA Nos. 521 of 2009 & 1131 of 2010 7 jointly and severally liable to compensate him.” 13. There is no whisper in the claim petition that the accident resulted on account of the negligence on the part of the 1[st] respondent – the driver of the vehicle. 14. In **Reshma Kumari v. Madan Mohan** [2013(2) KLT 304 SC], the Honourable Supreme Court has categorically held that in an application for compensation arising out of the accident filed under Section 166 of the M.V. Act, 1988, it is imperative that the claimant has to prove negligence on the part of the driver or owner of the vehicle, and that the onus of proof is on the claimant to establish that the negligence was on the part of the driver or the owner of the vehicle, only then the claimant is entitled to compensation. The same view was taken by the Honourable Supreme Court in **Oriental Insurance** MACA Nos. 521 of 2009 & 1131 of 2010 8 **Company Limited v. Meena Variyal and others** (AIR 2007 SC 1609). 15. In the present case, the petitioner has not pleaded or proved that the 1[st] respondent was negligent in driving the Jeep. More over, the 1[st] respondent produced Ext.B1 final report, filed by the police after investigation, to prove that the accident occurred due to the mechanical defect in the Jeep. The said finding is corroborated by Ext.B2 AMVI report. Therefore, it is proved beyond any semblance of doubt that the incident occurred not on account of the negligence on the part of the1st respondent. 16. A Division Bench of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal and Others** [2011(3) KLT 648] has held that the production of charge-sheet is _prima facie_ sufficient evidence of negligence for the purpose of a claim under Section MACA Nos. 521 of 2009 & 1131 of 2010 9 166 of the M V Act, 1988. The charge-sheet can be accepted as an evidence of negligence against the accused driver. If any of the parties do not accept such charge-sheet then the burden is on such person to let in oral evidence and discredit the charge-sheet; only then the the charge sheet will fall into a pale of insignificance. 17. In the case on hand, although, the 1[st] respondent produced Ext.B1 charge-sheet which proves that there is no negligence on the part of the 1[st] respondent, the petitioner did not mount the box box or let in any evidence to discredit Ext.B1 chargesheet and Ext.B2 AMVI report. 18. In the above factual and legal circumstances, I am the considered opinion that the finding of the Tribunal holding that the 1[st] respondent was negligent in causing the accident is MACA Nos. 521 of 2009 & 1131 of 2010 **==> picture [14 x 9] intentionally omitted <==** erroneous and wrong. Therefore, following the ratio in **Reshma Kumari and Meena Variyal** (supra), I hold that the impugned award passed by the Tribunal is unsustainable in law under Section 166 of the MV Act, 1988, and is only liable to be set aside. Resultantly, MACA No.521 of 2009 is dismissed and MACA No.1131 of 2010 is allowed by setting aside the impugned award in OP(MV)No.1359 of 2004 and the claim is dismissed as petition unsustainable in law. The parties shall bear their respective cost. **Sd/- C.S.DIAS,JUDGE** **dlk 11.08.2021**