M.A.C.A. Nos. 583/2010 and 861/2009

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY,THE 14[TH] DAY OF DECEMBER 2023/23RD AGRAHAYANA,1945`** ``` MACA NO. 583 OF 2010 ``` ``` OPMV 1023/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE ``` ## **`APPELLANT/6TH RESPONDENT:`** ``` UNITED INDIA INSURANCE CO.LTD. DIVISIONAL OFFICE, 2ND FLOOR,SEEMA TOWERS,, KOZHIKODE,REP,BY ITS AUTHORISED SIGNATORY, UNITED, INDIA INSURANCE CO.LTD.,REGIONAL OFFICE ERNAKULAM, SARANYA, HOSPITAL ROAD,KOCHI-11 BY ADV SRI.S.ARUN RAJ ``` ## **`RESPONDENTS/CLAIMANT/RESPONDENTS 1 TO 5:`** - `1 FASAL RAHMAN @ FALALU MOOSARIKANDI HOUSE, PANNOOR, KIZHAKKOTH P.O.,, KIZHAKKOTH AMZOM & DESOM,KOZHIKKODE.` - `2 PUSPANGATHAN SO.CHANDRAN THACHOTTUPARAYIL HOUSE, NEDIYANADU AMSOM AND DESOM, NEDIYANADU P.O.,KOZHIKKODE.` - `3 P P UMMERSO.UNNIMOYI, PULITHUKKAMPARAMBIL HOUSE,NARIKUNI P.O.,, KOZHIKKODE.` - `4 THE ORIENTEL INSURANCE CO.LTD MAVOOR ROAD,KOZHIKKODE.` - `5 ABDUL GAFOOR SO.ALIKUTTY MOOSARIKANDY HOUSE,PANNOOR,, KIZHAKKOTH P.O.,KIZHAKKOTH AMSOM & DESOM,, KOZHIKODE,` - `6 V.P NISHADSO.KUNHIMARAKKAR MALIYAKKAL HOUSE, EDAVANNA P.O.,MALAPPURAM DIST. BY ADVS. SRI.GEORGE CHERIAN THIRUVALLA SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH SRI.M.MUHAMMED SHAFI SMT.SREEKALA KRISHNADAS SRI.K.SHIBILI NAHA` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. Nos.583/2010 & 861/2009 : 2 : ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY,THE 14[TH] DAY OF DECEMBER 2023/23RD AGRAHAYANA,1945 ``` ``` MACA NO. 861 OF 2009 ``` ``` OPMV 1023/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE ``` ## **`APPELLANT/PETITIONER:`** ``` FASAL RAHIMAN @ FALALU, SON OF MUHAMMED, MOOSARIKANDY HOUSE,, PANNOOR, KIZHAKKOTHU P.O., KIZHAKKOTHU AMSOM,, AND DESOM, KOZHIKODE. ``` ``` BY ADVS. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 PUSHPANGATHAN, THACHOTTUPURAYIL HOUSE, NEDIYANADU AMSOM,, AND DESOM, NEDIYANDU P.O., KOZHIKODE.` - `2 P.P. UMMER SON OF UNNIMOYI, PULITHUKKAMPARAMBIL HOUSE,, NARIKUNI P.O., KOZHIKODE DIST.` - `3 THE ORIENTAL INSURANCE CO. LTD. MAVOOR ROAD, KOZHIKODE.` - `4 ABDUL GAFOOR SON OF ALIKUTTY, MOOSARIKANDY HOUSE, PANNOOR,, KIZHAKKOTHU P.O., KOZHIKODE.` - `5 V.P. NISHAD SON OF KUNHIMARAKKAR MALIYAKKAL HOUSE, ADAVANNA P.O,, MALAPPURAM DIST.` - `6 MS THE UNITED INDIA INSURANCE CO., LTD., DIVISIONAL OFFICE, 2ND FLOOR, SEEMA TOWERS, KOZHIKODE.` ``` BY ADVS. SRI.S.ARUN RAJ SMT.LATHA SUSAN CHERIAN SRI.BRODGET THOMAS SRI.JOHNSON MANAYANI ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14.12.2023, ALONG WITH MACA.583/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. Nos.583/2010 & 861/2009 : 3 : ## JUDGMENT Both these appeals arise from O.P. (MV) No.1023/2003 on the files of the Principal Motor Accident Claims Tribunal, Kozhikode. The parties to these appeals are hereinafter referred to on the basis of their respective ranks in the claim petition. 2. The said claim petition was submitted by the appellant in M.A.C.A. No.861/2009 seeking compensation for the injuries he sustained in a motor accident that occurred on 29.08.2002. According to him, the accident occurred when the motorcycle bearing registration No.KL-10-D-4207, whereon the petitioner was pillion riding, collided with a mini bus bearing registration No.KL-11N/1074. Immediately, he was taken to Medical College Hospital and underwent treatment. He was 25 years old and was a businessman at the relevant time, with a monthly income of Rs.5,000/-. The 1[st] respondent was the driver of the mini lorry, the 2[nd] respondent was its owner, and it was insured with the 3[rd] respondent. The 4[th] respondent was the rider of the motorcycle, the 5[th] respondent was its owner, and the 6[th] respondent was its insurer. The claim petition was submitted in such circumstances. M.A.C.A. Nos.583/2010 & 861/2009 : 4 : 3. The 1[st] and 2[nd] respondents filed written statements admitting the accident, but they disputed the negligence on their part. The 3[rd] respondent, the insurer of the minibus, admitted the coverage of the insurance policy over the said bus. However, they denied the accident as mentioned in the claim petition, and according to them, the petitioner was the rider of the motorcycle at the relevant time, and the accident was caused by his negligence. The 6[th] respondent filed a written statement contending that, as the 1[st] respondent was charge-sheeted by the Police and he admitted the liability before the jurisdictional court by pleading guilty, the liability has to be imposed upon the 1[st] and 3[rd] respondents. However, they admitted the insurance coverage over the motorcycle. 4. The evidence in this case consists of Exts.A1 to A5 from the side of the claimants and Ext.B1 was marked from the respondents' side. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to the negligence of both the drivers and therefore, the liability was apportioned equally among the parties. The quantum of compensation was fixed as Rs.34,500/- and the M.A.C.A. Nos.583/2010 & 861/2009 : 5 : same was permitted to be recovered from the 3[rd] and 6[th] respondents, in equal proportions with interest at the rate of 7% per annum from the date of petition till realisation. The claimant has approached this Court by filing M.A.C.A. No.861/2009 seeking enhancement of compensation, whereas the 6[th] respondent, the insurer of the motorcycle, filed M.A.C.A. No.583/2010, challenging the liability imposed upon them. 6. Heard Sri. Jacob Abraham, the learned counsel appearing for the claimant, Sri .S. Arunraj, the learned counsel appearing for the 6[th] respondent, the appellant in 583/2010, Smt. Latha Susan Cherian, the learned counsel appearing for the 3[rd] respondent insurance company and Sri. K. Shibili Naha, the learned counsel appearing for the 5[th] respondent. 7. The first question to be considered concerns the contention raised by the learned counsel for the 6[th] respondent regarding their liability. It was highlighted by the learned counsel for the appellant that the claimant himself was riding the motorcycle at the time of the accident, and in the written statement, they specifically denied that the 4[th] respondent was riding the said motorcycle. M.A.C.A. Nos.583/2010 & 861/2009 : 6 : 8. On going through the materials available on record, it can be seen that the Police registered Ext.A1 FIR in connection with the said crime against the driver of the lorry. After investigation, they submitted Ext.A5 final report in which the 1[st] respondent, the lorry driver, was implicated as the accused. It is also reported that the 1[st] respondent had already appeared before the jurisdictional Magistrate’s court and pleaded guilty pursuant to Ext.A5. Despite all these documents, the tribunal came to the conclusion that the accident occurred due to the negligence of the rider of the motorcycle as well as the driver of the lorry. Even though the 6th respondent raised a contention that it was the claimant himself who was riding the vehicle, absolutely no evidence was adduced to substantiate the same. On the other hand, Exts.A1 and A5, would clearly establish that the Police had charge-sheeted the 1[st] accused and he accepted the liability. As per the principles laid down by this Court in New India Assurance Co.Ltd v. Pazhaniammal [2011 (3) KLT 648] in the absence of any contra evidence, the conclusion arrived at by the Police after investigation of the crime registered in connection with the accident could be accepted for deciding the question of negligence in a proceeding under Section 166 of the M.A.C.A. Nos.583/2010 & 861/2009 : 7 : Motor Vehicles Act. In this case, no contra evidence was adduced, and the only documents on record are Exts.A1 and A5, which are against the 1[st] respondent. Therefore, the only conclusion possible in the light of Pazhaniammal ’s case is that the accident occurred due to negligence on the part of the driver of the lorry and therefore, the appellant in M.A.C.A. 583 of 2010, the insurer of the motorcycle, is to be exonerated from the liability. In the light of the aforesaid finding, the question highlighted by the appellant to the effect that the claimant was riding the motorcycle need not be considered as it is not relevant at all. 9. The next question to be considered relates to the quantum of compensation, which is the subject matter in M.A.C.A. No.861/2009 filed by the appellant. The learned counsel specifically contended that the claimant sustained severe injuries, including a compound fracture of the femur, both bones of the forearm, injuries on the scalp, root of the nose, etc. It is also the specific case of the learned counsel for the appellant that, even though five documents, including the medical records, were produced before the tribunal on 13.11.2007, none of the said documents were marked, and no compensation was assessed based on the same. Even though the M.A.C.A. Nos.583/2010 & 861/2009 : 8 : medical bills for a total amount of Rs.29,739/- were produced, without citing any valid reasons, the same was discarded as well, and only a lumpsum compensation of Rs.10,000/- was granted. It was also contended that, even though the claimant filed I.A. No.1181/2007 to refer the petitioner to the Medical Board for assessment of disability, the said application was also not considered. No compensation is also granted towards physical disability. After carefully going through the materials produced on record, I find force in the contention put forward by the learned counsel for the claimant. Evidently, a proper opportunity was not granted to the claimant to adduce evidence and substantiate the nature of the injuries sustained to him in the accident. The production of the documents as claimed by the appellant is evidenced from the records, and it is also a fact that in I.A. No.1181/2007, no orders on the prayers sought, were passed by the tribunal. Therefore, a proper assessment of compensation for disability sustained by the claimant was not made in this case. 10. In such circumstances, I am of the view that the matter requires reconsideration by permitting the claimant and other parties to adduce necessary evidence in this regard and to highlight their M.A.C.A. Nos.583/2010 & 861/2009 : 9 : ## respective contentions. In such circumstances, these appeals are disposed of with the following orders. - (1) MACA No.583/2010 filed by the 6[th] respondent in the claim petition is allowed by setting aside the award of the tribunal imposing liability of 50% upon the appellant herein. It is held that the accident occurred due to the negligence of the 1[st] respondent in driving the lorry, and being the insurer of the said vehicle, the 3[rd] respondent shall be liable to pay the compensation. - (2) The matter is remanded back to the tribunal to reconsider the question of the quantum of compensation. The tribunal shall provide a reasonable opportunity for the parties concerned to adduce fresh evidence. The Tribunal shall determine the quantum of compensation afresh after appreciating the same. - (3) The parties shall appear before the tribunal on 22.01.2024. Sd/ZIYAD RAHMAN A.A. JUDGE ncd/