MACA Nos. 912 of 2012 and 507 of 2012: Sandeep v Binumon Karuvelil & Others; Lissy v Binumon Karuvelil & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 4[TH] DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945** ## **MACA NO. 912 OF 2012** **AGAINST THE ORDER/JUDGMENT OPMV 697/2005 OF ADDITIONAL .DISTRICT** **COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA** ## **APPELLANT/CLAIMANT:** SANDEEP AGED 28 YEARS S/O. KUMARAN, VETTIKATTUMALAYIL HOUSE, PANOOR KARA, KARIMANOOR VILLAGE, THODUPUZHA. BY ADV SRI.N.K.KARNIS ## **RESPONDENT/RESPONDENTS:** 1 BINUMON KARUVELIL HOUSE, KUMILY, PIN-685 509. 2 JAIMON S/O. GOPALAN, VARICKANANICKAL HOUSE, VANNAPPURAM, VANNAPPURAM VILLAGE, PIN-695 606. 3 THE NEW INDIA ASSURANCE CO. LTD. REPRESENTED BY ITS BRANCH MANAGER, MUVATTUPUZHA-686 661. BY ADV SRI.P.G.GANAPPAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.12.2023, ALONG WITH MACA.507/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 M.A.C.A Nos. 912 and 507 f 2012 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 4[TH] DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945** ## **MACA NO. 507 OF 2012** **AGAINST THE ORDER/JUDGMENT OPMV 696/2005 OF ADDITIONAL DISTRICT** **COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA** ## **APPELLANTS/CLAIMANTS NO 2 & 3:** 1 LISSY W/O. GEORGE, AGED 51 YEARS, PULPARAYIL HOUSE, VELLAMTHANAM KARA, UDUMBANNOOR VILLAGE. 2 JIJO S/O. GEORGE, AGED 25 YEARS, PULPRAYIL HOUSE, VELLAMTHANAM KARA, UDUMBANNOOR VILLAGE. BY ADV SRI.N.K.KARNIS ## **RESPONDENTS/RESPONDNETS:** 1 BINUMON KARUVELIL HOUSE, KUMILY 685509 2 JAIMON SO. GOPALAN VARICKANANICKAL HOUSE VANNAPPURAM VANNAPPURAM VILLGE 685582 3 THE NEW INDIA ASSURANCE CO.LTD REPRESENTED BY ITS BRANCH MANAGER, MUVATTUPUZHA 686661 BY ADV N.S.MOHAMMED USMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.12.2023, ALONG WITH MACA.912/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 M.A.C.A Nos. 912 and 507 f 2012 ## **JUDGMENT** Both these appeals arose from a common award passed by the Motor Accidents Claims Tribunal, Thodupuzha, in O.P(M.V) Nos. 696/2005 and 697/2005. For convenience, the parties to these appeals are referred to as per their ranks in the claim petitions. 2. O.P.(M.V) No.696/2005 was filed by the petitioners therein, seeking compensation for the death of one 'Lijo' in a motor accident that occurred on 25.02.2005. According to them, the accident occurred when the motorcycle ridden by the deceased along with the petitioner in O.P(M.V) No.697/2005, which is the subject matter in M.A.C.A No.912/2012 was initially hit by an autorickshaw, and thereupon, it lost control and hit a tree. Due to the injuries sustained, the said Lijo passed away, and the pillion rider, the petitioner in O.P.(M.V) No.697/2005, sustained serious injuries. The claim petitions were submitted in such circumstances. The autorickshaw was driven by the 2[nd] respondent, owned by the 1[st] respondent, and insured with the 3[rd] respondent. 4 M.A.C.A Nos. 912 and 507 f 2012 3. The 3[rd] respondent/insurance company alone contested the matter by filing a written statement in both cases. They specifically denied the involvement of the autorickshaw in the accident, and according to them, the accident occurred when the motorcycle ridden by the Lijo overturned because of his negligence. It was also pointed out that he had no license to ride the motorcycle. They also disputed the quantum of compensation claimed by the respective claimants. Both the claim petitions were tried together. 4. The evidence in these cases consists of oral testimony of PW1, the petitioner in O.P(MV) 697/2005 and Exts.A1 to A10, and from the side of the respondents, RW1 was examined. After considering the materials placed on record, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the rider of the motorcycle and therefore, both the claim petitions were dismissed, since it was found that the autorickshaw was not involved in the accident. These appeals are submitted by the respective claimants, challenging the said common award. 5 M.A.C.A Nos. 912 and 507 f 2012 5. Heard Sri, N.K Karnis, the learned counsel appearing for the appellants in both the appeals, Sri. P.G Ganappan, the learned counsel appearing for the 3[rd] respondent in M.A.C.A No. 912/2012 and Sri. N.S Mohammed Usman, the learned counsel appearing for the 3[rd] respondent in M.A C.A No.507/2012. 6. The question that arises here is with regard to the finding of the Tribunal on negligence. After examining the materials placed on record, the Tribunal held that the accident occurred due to the negligence of the rider of the motorcycle. The specific contention put forward by the learned counsel for the appellant is that the police, after conducting the investigation, submitted Ext.A2 final report in Crime No.36/2005, implicating the 2[nd] respondent, the driver of the autorickshaw, as the accused person. Besides the same, the petitioner in O.P(MV) No. 697/2005, the pillion rider on the motorcycle, was examined to substantiate the contention of the appellants regarding the negligence on the part of the autorickshaw rider. Despite all the aforesaid evidence, the Tribunal, by merely placing upon the Ext.A1 FIR and Ext.A5 Inspection Report of the motor vehicle, held 6 M.A.C.A Nos. 912 and 507 f 2012 the rider of the motorcycle responsible for the accident, which, according to the claimants, is erroneous. 7. On the other hand, the learned counsel appearing for the insurance company opposes the said contention by pointing out that a careful examination of the materials would clearly indicate that the autorickshaw was not involved in the accident. They also relied on the evidence of RW1 besides the other evidence relied on by the Tribunal. 8. I have carefully gone through the records. Of course, it is true that in Ext.A1 F.I.R. registered by Kaliyar Police Station, there is no mention of the involvement of the autorickshaw. However, the crucial aspect to be noticed in this regard is that the said F.I.S. was given by one of the friends of the deceased Lijo, and he was not an eyewitness to the incident. Going by the F.I.S., it can be seen that he reached the spot after the incident, and when he came there, the deceased and the petitioner in O.P. (M.V.) No.697/2005 were already lying on the spot after sustaining injuries. Immediately, he made arrangements to take them to the hospital, and accordingly, they were taken to the hospital. Much importance cannot be given to the statement given 7 M.A.C.A Nos. 912 and 507 f 2012 by the said person before the police, as he was not an eyewitness to the incident. The probability that, being not an eyewitness, he may not have been aware of the involvement of the auto rickshaw while giving that statement cannot be ruled out. It is to be noted that both the victims were not conscious at the relevant time, and it is evident from the records. 9. Another document relied on by the Tribunal for holding that the autorickshaw was not involved in the accident was Ext.A5, the Vehicle Inspection Report of AMVI. I have carefully gone through the same as well. Of course, it is true that no serious damages were sustained to the autorickshaw, but it is mentioned in the said report that there is a scratch on the rear side of the auto-rickshaw. On going through the evidence of PW1, the pillion rider on the motorcycle, it can be seen that his specific case is that the auto-rickshaw hit the handle of the motorcycle and again, the rear side of the auto-rickshaw hit the motorcycle, which resulted in the loss of control of the motorcycle and it ultimately hit against the tree. Thus, it is evident that there was no violent hit on the auto rickshaw; even as per the case of PW1, it was just a touch, which might have resulted in the loss of control of the 8 M.A.C.A Nos. 912 and 507 f 2012 motorcycle. Thus, the scratch on the rear side of the autorickshaw could be treated as a material aspect, which supports the case advanced by the PW1 as to the manner in which the accident occurred. 10. Another crucial aspect to be noticed is that the police, after conducting the investigation, filed a final report with the conclusion that the accident occurred due to the negligence of the 2[nd] respondent, the driver of the autorickshaw. In **New India Assurance Co.Ltd v. Pazhaniammal** [2011 (3) KLT 648], this Court categorically observed that, in the absence of any contra evidence, the conclusion arrived by the police could be accepted as prima facie proof to decide the question of negligence in a proceeding under Section 166 of the Motor vehicles Act. In this case, an attempt was indeed made to adduce contra evidence in the form of RW1. However, going through his evidence, it can be seen that he was not an eyewitness. He was a resident of the place where the accident occurred and according to him, he came out to his house on hearing the sound. When he came out, the incident already occurred, and the injured persons were lying on the spot with the injuries. He does not refer to the presence of an 9 M.A.C.A Nos. 912 and 507 f 2012 autorickshaw, but he stated that later, he learned from other people that an autorickshaw hit the motorcycle, and the accident occurred accordingly. Thus, the evidence of RW1 would not in any manner support the case advanced by the respondents. On the other hand, the final report submitted by the police is against the 2nd respondent and in the light of the principles laid down by this Court in **Pazhaniammal (supra),** the conclusion in the final report can be accepted in the absence of any contra evidence. Thus, the only conclusion possible from analysing all the materials referred to above is that the accident occurred due to the negligence on the part of the 2nd respondent, driver of the autorickshaw and the finding of the Tribunal holding the rider of the motorcycle responsible for the accident, is liable to be set aside. 11. The learned counsel for the insurance company raised a further contention that the deceased, the rider of the motorcycle, did not have a valid driving licence, and this is also another instance which would indicate negligence on his part. However, I am not inclined to accept the said contention. Merely because the person driving the vehicle lacked a driving licence, it cannot be 10 M.A.C.A Nos. 912 and 507 f 2012 assumed that he was negligent. To attribute the negligence on the part of the driver, there must be some positive evidence indicating his contribution in causing the accident. Merely because he did not possess a driving licence, his contribution in causing the accident cannot be assumed, as it is a matter to be proved by adducing positive evidence. In this case, there is absolutely no evidence on record indicating that the lack of a driving licence of the deceased contributed to the accident. Therefore, the said contention is rejected. 12. Since the Tribunal dismissed the claim petitions, the quantification of compensation was not made. In such circumstances, even though the finding of the negligence is set aside, the matter has to be remanded back to the Tribunal for quantifying the compensation receivable by the respective claimants. Accordingly, these appeals are allowed; the common award passed by the Motor Accidents Claims Tribunal, Thodupuzha, in O.P.(M.V) Nos.696/2005 and 697/2005 are hereby set aside by holding that the accident occurred due to the negligence on the part of the 2[nd] respondent herein, the driver of the autorickshaw. 11 M.A.C.A Nos. 912 and 507 f 2012 Since the 3rd respondent/insurance company does not dispute the coverage of the policy and no violation of policy conditions was also highlighted, the 3[rd] respondent is held liable to pay the compensation. To determine the quantum of compensation, the matter is remanded back to the Tribunal to consider the quantum of compensation alone. The parties shall be at liberty to adduce such further evidence as may deem fit for determining the quantum of compensation, and the Tribunal shall give a reasonable opportunity to them to adduce such evidence. A decision thereon shall be taken by the Tribunal as expeditiously as possible at any rate from six months from the date of appearance of the parties. The parties shall appear before the Tribunal on 24.01.2024. Sd/- **ZIYAD RAHMAN A.A JUDGE** rpk