MACA Nos.231/14 & 491/2014, The New India Assurance Company Ltd. v. Renju @ Renjith & Others (High Court of Kerala, Ernakulam)

MACA.Nos.231/14 & 491/2014 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 27[TH] DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945_ ## _MACA NO. 231 OF 2014_ _AGAINST THE ORDER/JUDGMENT OPMV 448/2005 OF MOTOR ACCIDENT_ ## _CLAIMS TRIBUNAL ,NEYYATTINKARA_ ## _APPELLANT/4TH RESPONDENT:_ _THE NEW INDIA ASSURANCE COMPANY LTD., NEYYATTINKARA NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11._ _BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW_ ## _RESPONDENT/S:_ _1 RENJU @ RENJITH, AGED 36 YEARS, MOOLAYIL VEEDU, VEDAMANGALAM, RUSSELPURAM P.O., NEYYATTINKARA-695 320._ _2 NEETHA RANI, AGED 20 YEARS, 14/498, PLAVARATHALA, MUKKOLA, VIZHINJEM, THIRUVANANTHAPURAM-695 315._ _3 THE MANAGER, NATIONAL INSURANCE COMPANY LIMITED, ST.JOSEPH PRESS BUILDING, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 315._ _4 V.VIPIN, THEEYANOORKONAM, RETHNAYIL VILASOM, RUSSELPURAM P.O., NEYYATTINKARA TALUK-695 320._ MACA.Nos.231/14 & 491/2014 2 _5 SUNIL, S/O.LAWRENCE, KBS COTTAGE, HOSPITAL JUNCTION, PARASSALA, THIRUVANANTHAPURAM-695 315._ _BY ADVS. SRI.R.T.PRADEEP SMT.RAJI T.BHASKAR_ ## _OTHER PRESENT:_ _R3 -SMT.RAJI T.BHASKAR, R1 - SRI.R.T.PRADEEP_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.10.2023, ALONG WITH MACA.491/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.Nos.231/14 & 491/2014 3 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ # _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 27[TH] DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945_ ## _MACA NO. 491 OF 2014_ _AGAINST THE ORDER/JUDGMENT OPMV 449/2005 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL ,NEYYATTINKARA_ ## _APPELLANT/4TH RESPONDENT:_ _THE NEW INDIA ASSURANCE COMPANY LIMITED, NEYYATTINKARA, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11._ _BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW_ ## _RESPONDENT/PETITIONER & RESPONDENTS:_ - _1 ANI, MULLAYIL VEEDU, VETTAMANGALAM, RUSSELPURAM.P.O,NEYYATTINKARA._ - _2 NEETHA RANI, 14/498, PLAVARTHALA, MUKKOLA, VIZHINJAM, THIRUVANANTHAPURAM, PIN-695 320._ - _3 THE MANAGER,_ _NATIONAL INSURANCE COMPANY LIMITED, ST.JOSEPH PRESS BUILDING, VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN-695 320._ - _4 V.VIPIN, THEEYANOORKONAM, RETHNAYHIL VILASOM, RUSSELPURAM.PO,NEYYATTINKARA TALUK, PIN-695 320._ - _5 SUNIL,_ - _S/O. LAWRENCE, KBS COTTAGE, HOSPITAL JUNCTION, PARASSALA, THIRUVANANTHAPURAM,PIN-695 320._ _BY ADVS.SMT.MINI GANGADHARAN_ MACA.Nos.231/14 & 491/2014 4 ## _SMT.RAJI T.BHASKAR_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.10.2023, ALONG WITH MACA.231/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.Nos.231/14 & 491/2014 5 ## **JUDGMENT** ## **[MACA Nos.231/2014, 491/2014]** These appeals arise from a common award passed by the Motor Accidents Claims Tribunal, Neyyattinkara, in O.P. (MV).No.448 of 2005 and 449 of 2005. Both the said claim petitions were submitted by the respective claimants seeking compensation for the injuries sustained to them in a motor accident that occurred on 21.12.2004. 2. The accident occurred when the motorcycle ridden by the claimant in O.P.(MV).No.449 of 2005 with the claimant in O.P. (MV).No.448 of 2005, as the pillion rider, collided with a car bearing registration No.KL-01/D-3157. The said car was owned by the 1[st] respondent, driven by the 5[th] respondent in the claim petition and was insured with the 2[nd] respondent in the said claim petition. The motorcycle was owned by the 3[rd] respondent and was insured with the 4[th] respondent in the claim petition. 3. The specific contention raised by the respective claimants was that, the accident occurred due to the negligence on the part of the driver of the car. The Police have also charge sheeted the driver of the car after conducting an investigation. The claim petitions were submitted in such circumstances seeking MACA.Nos.231/14 & 491/2014 6 compensation. The 2[nd] respondent in the claim petition, the insurer of the car, filed a written statement admitting the coverage of the policy with respect to the car. However, they raised a contention that the accident occurred due to the negligence on the part of the rider of the motorcycle, the claimant in O.P.(MV).No.449 of 2005. They disputed the quantum of compensation also. The appellant, in both these appeals (the 4[th] respondent in both the claim petitions) submitted written statements admitting the coverage of policy for the motorcycle but raised the contention that the accident occurred due to negligence on the part of the driver of the car, the Addl.5[th] respondent in the claim petition. 4. The evidence in this case consists of Exts.A1 to A11 from the side of the claimants. From the side of the 2[nd] respondent in the claim petition DW1 and DW2 were examined and Exts.B1 and B2 were marked. The Case Diary in Crime No.577 of 2004 of Malayinkeezhu Police Station, registered in connection with the accident, was marked as Ext.X1. 5. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the rider of the motorcycle, the claimant in O.P(MV).No.449 of 2005. Consequently, O.P.(MV).No.449 of 2005 was dismissed even though MACA.Nos.231/14 & 491/2014 7 the quantum of compensation was fixed therein was Rs.75,000/-. O.P.(MV).No.448 of 2005 was allowed by awarding compensation for Rs.6,48,000/- and since it was found that the accident occurred due to negligence of the rider of the motorcycle, being the insurer of the said vehicle, the appellant herein/4[th] respondent was directed to deposit the said amount along with interest at the rate of 9% per annum from the date of petition till realisation. These appeals were submitted by the 4[th] respondent Insurance Company, the insurer of the motorcycle, challenging the finding on the question of negligence. 6. Heard Sri.Mathews Jacob, learned Senior Counsel appearing for the appellants Sri.R.T.Pradeep, learned counsel for the 1[st] respondent in M.A.C.A.No.231 of 2014 and Smt.Raji T.Bhaskar, learned counsel for the 3[rd] respondent Insurance Company in both the appeals. 7. Even though notices were served upon the other respondents, there was no appearance for them. The learned Senior counsel for the appellants would contend that the Tribunal committed a grave error in holding the rider of the motorcycle responsible for the accident. It was pointed out that, as per the Ext.A1 FIR and A2 final report, the driver of the car was charge MACA.Nos.231/14 & 491/2014 8 sheeted. Even though DW1 and DW2, the Police officers who prepared the scene mahazar and the investigation officer of the crime, respectively, were examined, their evidence is not sufficient to discard the conclusion arrived at by the Police as per the investigation, as is discernible from the final report. Reliance was also placed on a decision rendered by this Court in **New India** ## **Assurance Co.Ltd v. Pazhaniammal [2011 (3) KLT 648].** 8. On the other hand, the learned counsel appearing for the 3[rd] respondent Insurance Company opposes the same by contending that the conclusion arrived at by the Tribunal was based on the Ext B1 scene mahazar. It was pointed out that the aforesaid evidence would indicate that, at the relevant time, the motorcycle was on the wrong side as it crossed the middle of the road and hit the car. Therefore, no interference in the finding entered by the Tribunal is warranted as the same is a probable finding. 9. I have carefully gone through the records, including the deposition of DW1 and DW2, as well as the documents referred to by both parties. It is true that, when considering the deposition of DW1 coupled with the scene mahazar, it can be seen that the spot of the accident, as shown in the scene mahazar, would indicate MACA.Nos.231/14 & 491/2014 9 that, at the relevant time, the motorcycle had crossed the middle of the road. However, the crucial aspect to be noticed is that even if the evidence of DW1 and the contents of Ext.B1 were accepted, that would only show the spot of the accident. None of the persons examined before the Tribunal were eyewitnesses of the accident. Merely from the spot of the accident, the question of negligence cannot be determined conclusively. As far as the accident is concerned, there would be various contributory factors and the spot of the accident is only one among them. Under no circumstances, the same can be a conclusive proof of the negligence. Accidents depend upon various factors, such as the traffic on the road at the relevant time, the speed of the vehicle, and the other circumstances that led to the accident. The said questions can be decided only based on the evidence of eyewitnesses or other reliable evidence. As far as the scene mahazar is concerned, the same cannot be relied on as conclusive proof to determine the question of negligence. Moreover, it is a well-settled position of law that the scene mahazar cannot be treated as a valid piece of evidence to determine the question of negligence. In **Jiju Kuruvila and Others v. Kunjunjamma Mohan and Others [(2013) 9 SCC 166], the said aspect was** MACA.Nos.231/14 & 491/2014 10 ## **specifically considered by the Honourable Supreme Court** **and found that** the question of negligence cannot be decided on the basis of a scene mahazar alone. In this case, the entire finding of the Tribunal was based on the scene mahazar. Even though the Tribunal relied on the evidence of DW1, his deposition is also based on the scene mahazar, which he prepared after two days of the incident. There is nothing to indicate whether the spot was shown to him by the person who had witnessed the incident. Therefore, I am of the view that the evidence relied on by the Tribunal to decide the question of negligence was not sufficient to make a conclusive decision on the said issue. 10. On the other hand, from Ext.A1 and A2, which are the FIR and Final Report, it can be seen that, right from the inception of the case, it was registered against the 5[th] respondent, the driver of the car. In Ext.A2, which is the Final Report submitted by the police, the conclusion was arrived at based on three eyewitnesses. Even though CWs 1 and 2 were the rider and the pillion rider of the motorcycle, the other witness was an independent eyewitness. The scene mahazar also forms part of the Final Report, and even though the spot of the accident, as shown in the said scene mahazar, would indicate the motorcycle was on the wrong side at MACA.Nos.231/14 & 491/2014 11 the relevant time, the police, after recording the statements of the witnesses came to a conclusion that, the accident occurred due to the negligence on the part of the driver of the said car. In **Pazhaniammal** (supra), this Court held that, in the absence of any contra evidence, the conclusion arrived at by the police in the Final Report can be taken to determine the question of negligence. Of course, in this case, the 2[nd] respondent in the claim petition has attempted to adduce contra evidence in the form of PW1 and PW2. However, the evidence so adduced was already found to be not acceptable by this Court as it would only establish the spot of accident and nothing else. The crucial factors which contributed to the accident are not discernible from the said evidence. Therefore, the better evidence being the Final Report submitted by the police, the same has to be accepted following the principles laid down in **Pazhaniammal** (supra) **.** Thus, I hold that the finding entered by the Tribunal was not correct, and the same is liable to be set aside. It is further held that the accident occurred due to the negligence on the part of the 5[th] respondent in the claim petition, the driver of the car. As the coverage of the policy is admitted by the 3[rd] respondent in both these appeals, they are liable to pay the compensation as determined by the Tribunal. MACA.Nos.231/14 & 491/2014 12 In the light of the aforesaid observations and findings, both these appeals are allowed with the following directions: - i) The finding of the Tribunal in the common award passed in O.P.(M.V) Nos.448 of 2005 and 449 of 2005 that the accident occurred due to the negligence of the petitioner in O.P.(M.V) No.449 of 2005, is hereby set aside and it is held that the accident occurred due to the negligence of the 5[th] respondent in the claim petition, the driver of the car bearing Reg No KL-01 D 3157. - ii) Consequently, the award passed by the Tribunal on 16.08.2013 in O.P.(M.V) No.449 of 2005 dismissing the - claim petition, is set aside. An award is passed permitting the claimant therein to recover an amount of Rs.75,000/- along with interest at 9% per annum from the date of petition till realization and proportionate cost, from the respondents 1,2 and 5 in the claim petition, as they are jointly and severally liable to pay the compensation. Being the insurer of the car, the said amount shall be deposited by the 2[nd] respondent in the MACA.Nos.231/14 & 491/2014 13 claim petition within a period of three months from the date of receipt of a copy of the judgment. iii) The 2[nd] respondent in O.P.(M.V) No.448 of 2005 shall deposit an amount of Rs.6,48,000/- with interest at the rate of 9% per annum from the date of petition till realization and proportionate costs within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/rpk/28.10.23