M.A.C.A. Nos.1478 & 1486 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 5[TH] DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943** **MACA NO. 1478 OF 2013** **AGAINST THE AWARD IN OPMV 1964/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL, THIRUVANANTHAPURAM APPELLANT/PETITIONER:** VENUKUMAR, AGED 50 YEARS, S/O.KESAVAN PILLAI, SAGOTHAM, ALANTHARA, NELLANADU, NELLANADU VILLAGE. BY ADV SRI.M.DINESH ## **RESPONDENTS/RESPONDENTS:** 1 G.BHARGAVIKUTTY AMMA KURIYIDATHU VEEDU, PULLARIMANGALAM P.O, MAVELIKKARA. 690 101. 2 G.SOMU S/O.BHASKARA PILLAI, KOLLATHURUTHU VEEDU, EDAREZHAMURI, MAVELIKKARA, ALAPPUZHA DISTRICT. 690 101. 3 THE MANAGER ORIENTAL INSURANCE CO.LTD, DIVISION OFFICE, ALAPPUZHA, ALAPPUZHA P.O, 688 001. 4 A.SIJI S/O.ABDUL RAHUMAN, PALAVILA VEEDU, ODAYAM, VARKALA P.O, 695 141. 5 THE MANAGER UNITED INDIA INSURANCE CO.LTD, ATTINGAL, 695 101. BY ADVS. SMT.P.K.SANTHAMMA SMT.K.S.SANTHI. ## **M.A.C.A Nos.1478 & 1486 of 2013** **==> picture [7 x 9] intentionally omitted <==** THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.11.2021, ALONG WITH MACA.1486/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A Nos.1478 & 1486 of 2013** 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 5[TH] DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943 MACA NO. 1486 OF 2013 AGAINST THE AWARD IN OPMV 1008/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL, THIRUVANANTHAPURAM** ## **APPELLANT/PETITIONER:** NAZARI AGED 42 YEARS S/O. RAHUMAN, PADINJATTE PALAVILA VEEDU, NEAR PARAMBIL TEMPLE, ODAYAM DESOM, EDAVA VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV SRI.M.DINESH ## **RESPONDENTS/RESPONDENTS:** 1 G.BHARGAVIKUTTY AMMA KURIYIDATHU VEEDU, PULLARIMANGALAM.P.O., MAVELIKKARA.PIN-690101. 2 G. SOMU S/O. BHASKARA PILLAI, KOLLATHURUTHU VEEDU, EDAREZHAMURI, MAVELIKKARA, ALAPPUZHA DISTRICT-688001. 3 THE MANAGER ORIENTAL INSURANCE CO.LTD. DIVISION OFFICE, ALAPPUZHA, ALAPPUZHA DISTRICT-688001. BY ADV. SMT.K.S.SANTHI, SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.11.2021, ALONG WITH MACA.1478/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A Nos.1478 & 1486 of 2013** 4 ## **COMMON JUDGMENT** M.A.C.A. No.1486/2013 arises out of the award dated 15.04.2013 in O.P.(M.V) No.1008/2004 on the file of the Motor Accident Claims Tribunal, Attingal. 2. The award dated 15.04.2013 in O.P. (M.V) No.1964/2004 on the file of the Motor Accident Claims Tribunal, Attingal is under challenge in M.A.C.A No.1478/2013 at the instance of the respective petitioners, whose claim applications were dismissed finding that they were negligent in the matter of accident, being person travelled on the motor bike bearing registration no.KL-01S-3818. 3. The respondents 1 to 3 before the Tribunal are the respondents herein and respondents 5 to 6 were not arrayed as parties in M.A.C.A. No.1486/2013 4. In M.A.C.A No.1478/2013, respondents 1 to 4 and 6 before the Tribunal are arrayed as ## **M.A.C.A Nos.1478 & 1486 of 2013** 5 respondents 1 to 5 herein. 5. The Tribunal considered O.P.(M.V) Nos.1964/2004 and 1008/2004 after effecting joint trial. 6. To the brief facts of this case, the specific allegation of the petitioners is that while they were travelling as pillion riders in doubles in a motor cycle bearing registration no.KL-01S-3818 driven by one Binni, stage carriage bearing registration no.KL-04H-7269 driven by the 2[nd] respondent dashed against the motor cycle and thereby they sustained injuries. 7. Respondent nos.3 and 6 in the O.P. (M.V) filed written statement and disputing negligence while admitting policy. The Tribunal addressed the issue as to negligence and finally held that the accident found to have occurred on account of petitioners/ claimants in O.P.(M.V) Nos.1964/2004 and ## **M.A.C.A Nos.1478 & 1486 of 2013** 6 1008/2004 having indulged in drunken driving of motor cycle bearing registration no.KL-01S- 3818. The Tribunal also took serious note of deletion of Binni, the rider of the motor cycle from the party array in O.P.(M.V) No.1964/2004. 8. It is pointed out by the learned counsel for the appellants that the Tribunal found drunken riding of the motor cycle on the basis of observation in Ext.A12 wound certificate of a Nazari (one among the petitioner). According to the learned counsel for the appellants, on the basis of the FIS given by the 2[nd] respondent crime was registered. Therefore, the FIR does not suggest negligence on the part of the 2[nd] respondent. However, after investigation, the police filed Ext.A5 charge against the 2[nd] respondent alleging commission of offences under Sections 279, 337 and 338 of IPC. That ## **M.A.C.A Nos.1478 & 1486 of 2013** 7 apart, the 2[nd] respondent, who received summons in C.C.No. 279/2002 from Judicial First Class Magistrate Court-I, Attingal based on Ext.A5 charge appeared before the Magistrate Court and pleaded guilty to the charge. Highlighting these aspects, the learned counsel for the appellants would submit that the finding of the Tribunal that the appellants were negligent, being persons engaged in drunken driving ignoring the police charge and Ext.A3 judgment is erroneous. Therefore, the same is liable to be set aside. 9. The learned counsel for the 3[rd] respondent, Insurance Company would submit that though this is a matter of collision between two vehicles in O.P.(M.V) No.1008/2004, the owner, rider and insurer of the motor bike were not impleaded. Though the owner, rider and insurer of the motor bike were impleaded in O.P.(M.V) No.1964/2004, ## **M.A.C.A Nos.1478 & 1486 of 2013** **==> picture [7 x 9] intentionally omitted <==** during the course of trial, the 5[th] respondent, the rider of the motor vehicle was also deleted from the party array. 10. The learned counsel for the insurer of the motor cycle also was heard. 11. Here the Tribunal did not grant any amount as compensation since the Tribunal found negligence on the part of the appellants themselves. 12. As per the decisions reported in _**New**_ _**India Assurance Co. Ltd v. Pazhaniammal**_ **: 2011** **(3) KLT 648]** and _**Balan R. v. Abhiraj R. and**_ _**others**_ **: 2021 (4) KHC 380** , it has been categorically held that the police charge can be relied on as prima facie evidence to find negligence unless other convincing evidence not brought into disbelieve the police charge. Here the Tribunal did not accept the police charge and relying on the endorsement 'smell of alcohol' in the wound certificate of ## **M.A.C.A Nos.1478 & 1486 of 2013** 9 Nazari, the petitions were dismissed finding negligence against the petitioners/appellants. 13. It is submitted by the learned counsel for the 3[rd] respondent, Insurance Company that owner, rider and insurer of the motor bike are necessary parties in both cases as the Company is disputing the quantum of negligence and R3 is ready to adduce evidence in this regard. Therefore, R5 to be impleaded in O.P.(M.V) No.1964/2004 and R4 to R6 also to be impleaded in O.P.(M.V) No.1008/2004. 14. Perusal of the award would go to show that O.P.(M.V) No.1008/2004 was proceeded without the juncture of the owner, rider and insurer of the other vehicle though collision between two vehicles is the subject matter in both cases. It is true that police charge can be prima facie evidence to prove negligence. However, the right of the alleged tortfeasors to adduce contra evidence is always open. If ## **M.A.C.A Nos.1478 & 1486 of 2013** 10 so, it has to be noted that since the other parties (owner, rider and insurer of the motor cycle) and the rider is deleted from O.P.(M.V) No.1964/2004 were not impleaded in O.P.(M.V) No.1008/2004 and such an option was denied to them. 15. Therefore, I am of the view that the impugned common award is liable to be set aside and the matter required to be remanded to the Tribunal for fresh consideration. It is specifically ordered that the petitioners shall implead R5, the rider of the motor cycle in O.P.(M.V) No.1964/2004 and owner, rider and insurer of the vehicle in O.P.(M.V) No. 1008/2004 before starting trial. 16. The Tribunal is directed to decide the question of negligence and entitlement of compensation based on the evidence to be adduced by the parties, inclusive of the evidence now on record. Having considered the ## **M.A.C.A Nos.1478 & 1486 of 2013** **==> picture [12 x 9] intentionally omitted <==** matter is of the year 2004, the Tribunal is directed to expedite the trial at the earliest, at any rate, within four months from the date of production of the copy of the judgment or receipt of judgment from this Court. Contesting parties herein are directed to appear before the Tribunal on 06.12.2021 at 11:00 A.M. Registry shall forward a copy of the judgment along with back records to the Tribunal within 7 days. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww