M.A.C.A.No.1583 of 2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY, THE 16TH DAY OF JANUARY 2017/26TH POUSHA, 1938** **MACA.No. 1583 of 2010 ( ) --------------------------** ## **AGAINST THE AWARD IN OP(MV)NO. 909/2004 of MACT, IRINJALAKUDA** **APPELLANT/2ND RESPONDENT::** **----------------------------------------------** **UNITED INDIA INSURANCE COMPANY LIMITED CHIPLON NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, `SHARANYA', HOSPITAL ROAD, KOCHI-11.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS 1 TO 3 & RESPONDENTS 3 TO 6:** **---------------------------------------------------------------------------------------** **1. REENA, W/O.DECEASED TOMY, ELANDOLI HOUSE, POYYA, MALA, THRISSUR DISTRICT-680733.** **2. KRISTO (MINOR) S/O.DECEASED TOMY, DO.-680733** **3. PRINCE (MINOR) S/O.DECEASED TOMY, DO. DO. -680733** **4. NITIN PRABHAKAR KOLGE, SHIRGAON, CHILPLUN TALUK,, RATNAGIRI DISTRICT, MAHARASTRA STATE.-415615** **5. MEGAPPA SIVAPPA RATHOD, KAPSAL, CHIPLUN TALUK, RATNAGIRI DISTRICT,, MAHARASTRA STATE.-415615 (DELETED)** **6. NATIONAL INSURANCE COMPANY LIMITED BRANCH OFFICE, RATNAGIRI P.O.,, RATNAGIRI DISTRICT, MAHARASHTRA STATE.-415615** *** RESPONDENT NO.5 IS DELTED FROM PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 13.12.2016 IN I.A. NO. 4329/2016 IN MACA 1583/2010** **R1-R3 BY ADV. SRI.A.N.SANTHOSH** ## **R6 BY ADV. SMT.SARAH SALVY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.K.ABDUL REHIM & SHIRCY.V,JJ** ## **-----------------------------------** ## **M.A.C.A.No.1583 of 2010** **-----------------------------------------------Dated this the 16[th] day of January, 2017** ## **JUDGMENT** ## C.K.Abdul Rehim,J. The 2[nd] respondent insurance company before the Motor Accidents Claims Tribunal, Irinjalakuda, in O.P (M.V)No.909/2004 is the appellant herein, challenging the award to the extent the Tribunal had fastened liability upon them to pay the compensation and also challenging the quantum of compensation awarded. 2. The wife, two minor children and father of one Tomy, who died in a motor vehicle accident which occurred on 15.9.2003 at Mumbai-Goa National Highway in Maharashtra State, were the claimants before the Tribunal. The 4[th] claimant, who is the father of the deceased, died during pendency of the claim petition. The Tribunal had passed the award in favour of the wife and children of the deceased. MACA NO.1583/2010 2 3. The accident occurred when an Autorickshaw which the deceased was travelling as a passenger collided with a Lorry. The appellant herein is the insurer of the Autorickshaw. The driver of the Autorickshaw also died in the accident. The owner, driver and insurer of the Lorry were impleaded as additional respondents 3 to 5 before the Tribunal. The Tribunal found that the accident occurred due to the negligence of the deceased driver of the Autorickshaw and hence made the appellant herein liable to pay the amount of compensation awarded. 4. Heard learned Senior Counsel appearing on behalf of the appellant, Counsel appearing on behalf of Respondents 1 to 3, who are the claimants, and also the learned Standing Counsel appearing for the sixth respondent. 5. Contention on behalf of the appellant is that the findings of the Tribunal regarding the aspect of negligence is illegal and unsustainable. It is contended MACA NO.1583/2010 3 that the Tribunal had failed in taking note of Ext.B2 document produced by the appellant, which is the Award passed by the Motor Accidents Claims Tribunal, Ratnagiri District in Tamil Nadu, with respect to the claim petition filed seeking compensation on account of the death of the driver of the Autorickshaw. It is contended that, in the said Award the Tribunal had apportioned the liability between the insurers of the Lorry and the Autorickshaw at the ratio of 75%:25%, respectively. 6. While appreciating the said contention, we take note of the fact that the appellant had filed written statement before the Tribunal contending that, the 4[th] respondent, who is the driver of the Lorry was responsible in causing the accident. But the claimants have adduced documentary evidence relating to the police case registered with respect to the accident, such as Ext.A1 FI statement, Ext.A2 final report and Ext.A4 Mahazar. The Tribunal on evaluating those documents found that the MACA NO.1583/2010 4 police had registered a case with respect to the accident implicating the driver of the Autorickshaw as accused. After the investigation they submitted a report to the effect that the accident occurred solely due to rashness and negligence on the part of the deceased driver of the Autorickshaw. The Tribunal found that in view of the above said documents there cannot be any finding against the driver of the Lorry, in the absence of any definite materials proving that he had also contributed negligence in causing the accident. 7. We take note of the fact that, apart from raising a contention that the driver of the Lorry was negligent in causing the accident, the appellant herein has not adduced any evidence to disprove the version of the police case. When the claimants have discharged their burden of proving the accident through producing documents relating to the police case, the burden shifts to the respondent who is taking a contention otherwise, to MACA NO.1583/2010 5 rebut such evidence. In the case at hand the appellant had failed to produce any evidence either oral or documentary. With respect to Ext.B2 Award, the learned Senior Counsel made available a copy of the same for our perusal. It is evident that the claim before the Tribunal at Ratnagiri was one filed under Section 163A of the Motor Vehicles Act. For a claim under Section 163A the Tribunal need not adjudicate upon the question of negligence. But, that Tribunal found that, for the purpose of apportionment of the compensation the negligence of both drivers need to be assessed. Finding that the driver of the Lorry has not chosen to mount into the witness box to dispute the allegations of the negligence levelled against him and also finding that heavier vehicles should have taken more care and caution, the Tribunal made the apportionment as mentioned above. 8. We are of the considered opinion that on a mere production of the Award of another case, which MACA NO.1583/2010 6 arose out of the same accident, the Tribunal is not bound to follow the decision rendered by the other Tribunal. On the other hand, the claim should be decided by the Tribunal based on the evidence available on record. In the case at hand, as already observed, there is no contra evidence produced to disprove the version put forth by the claimants, which is proved through Exts.A1 to A4 documents. Therefore we do not find any merit in the contention of the appellant regarding the findings on the aspect of negligence. 9. The learned Senior counsel pointed out a decision of the Honourable Supreme Court in _**Bijoy Kumar Dugar vs. Vidyadhar Dutta and others (AIR 2006 SC 1255)**_ in order to contest a preposition that, when there is a head on collision of two vehicles, the drivers of both the vehicles should be held responsible to have contributed equally to the accident. On a scanning of the citation, we do not find any legal preposition settled MACA NO.1583/2010 7 by the Honourable Supreme Court. But on the facts of the said case, the Honourable Supreme Court only observed that the findings of contributory negligence rendered by the Tribunal is correct and sustainable in view of the facts available. The Honourable Supreme Court do not find any cogent and convincing reason to disagree with the well reasoned order of the Tribunal on that point. Hence we are not inclined to accept the preposition that in every case of head on collision, both the drivers are necessarily to be held as negligent and contributing to the cause of the accident. 10. Even though the appellant had raised contentions disputing the quantum of compensation awarded, we are of the considered opinion that only just and reasonable amount is awarded by the Tribunal under different heads. The appellant cannot make any successful contention regarding the excess assessment of compensation in any of the specific heads. Hence the Award does not deserve MACA NO.1583/2010 8 any interference on the question of compensation also. In the result, the appeal fails and the same is hereby dismissed. **C.K.ABDUL REHIM JUDGE** **SHIRCY.V JUDGE** smm