M.A.C.A.No.558 of 2014 (F) Madhusoodhanan Nair @ Madhu v. Jumaila Hamid, A.M. Nazimuddin and The National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V. THURSDAY, THE 7TH DAY OF DECEMBER 2017/16TH AGRAHAYANA, 1939 MACA.No. 558 of 2014 (F) -----------------------AGAINST THE AWARD IN OPMV 306/2005 of M.A.C.T.,ATTINGAL DATED 23-11-2012 ## APPELLANT/PETITIONER: ----------------------- MADHUSOODHANAN NAIR @ MADHU, S/O.RAMANKUTTY, SARAS NIVAS, MUNDAYIL, VARKALA PO, THIRUVANANTHAPURAM. BY ADV. SRI.M.BALAGOVINDAN ## RESPONDENTS: - -------------1. JUMAILA HAMID, DAR-AL-JUMM, EDAVA PO, VARKALA, THIRUVANANTHAPURAM 695 311. - 2. A.M.NAZIMUDDIN, S/O.MOHAMMED SALI, EAST ALAPPURAM LANE, EDAVA PO, VARKALA, THIRUVANANTHAPURAM 695 311. - 3. THE NATIONAL INSURANCE CO.LTD., PARAMESWARAN PILLAI BHAVAN, HOSPITAL ROAD, KOLLAM 691 001. R3 BY ADV. SRI.P.G.GANAPPAN BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.K.ABDUL REHIM & SHIRCY.V., JJ. -------------------------------------------M.A.C.A.No.558 of 2014 --------------------------------------------Dated this the 7th day of December, 2017** ## **JUDGMENT** ## **C.K.Abdul Rehim, J.** The claimant in O.P.(MV)No.306/2005 on the files of the Motor Accidents Claims Tribunal, Attingal is the appellant herein, challenging the award to the extent it dismissed his claim petition. 2. Heard learned counsel appearing for the appellant and learned Standing Counsel appearing for the 3[rd] respondent/insurance company. 3. The claim before the Tribunal was that, the appellant sustained injuries in a motor vehicle accident which occurred at 11.30 a.m. on 1.2.2004 near Venkulam Bus Stand junction on Janatha Mukku-Edava Public Road. It was the case of the appellant that the accident occurred when a Maruti Car bearing KL-01/W-258 hit against the scooter on which he was riding, bearing No.KEV-2974. Respondents 1 to 3 were arrayed before the Tribunal as the owner, driver and insurer of the M.A.C.A.No.558/2014 2 Maruti Car. Before the Tribunal Exts.A1 to A5 documents were produced by the appellant, which are records pertaining to the criminal case registered with respect to the accident. From Ext.A1 and Ext.A4 it is evident that the police had registered a case with respect to the accident implicating the 2[nd] respondent as accused and charge sheeted him after investigation, for the offence of rash and negligent driving, along with other offences committed. Learned counsel for the appellant contended that, prima facie burden on the part of the appellant to prove the negligence on the side of the 2[nd] respondent, stands discharged by production of those documents. Therefore it is assailed that the dismissal of the claim based on the finding that the appellant had failed in proving the negligence, is unsustainable. 4. On a perusal of the impugned award we notice that, the Tribunal had dismissed the claim mainly based on the finding that the appellant had failed to intimate the police about the accident and that he had moved a private complaint only after the lapse of more than four months. The Tribunal found that it is only on the basis of the private complaint that M.A.C.A.No.558/2014 3 the police had registered the case and investigated the same. At the same time the Tribunal found that Ext.A5 is the copy of the wound certificate issued from the hospital where the appellant was admitted immediately after the accident. With respect to Ext.A5 the Tribunal found that the injuries noted therein include an old fracture of medial malleolus with a screw insitu. Therefore the Tribunal found that the injuries noted in Ext.A5 could not have sustained by him in the accident which happened on 1.2.2004. Based on the above findings it was concluded that the appellant had suppressed the real genesis of the accident, and it could not be found that the accident in question occurred due to the rashness and negligence on the part of the 2[nd] respondent. As a consequence the claim petition was dismissed. 5. We are of the considered opinion that the Tribunal had dealt with the claim petition in a most perverse and misconceived manner. Question whether the accident as narrated had occurred or not; and if so, who was responsible for causing the accident, are totally different questions from the aspect as to what are the injuries sustained in the M.A.C.A.No.558/2014 4 accident. First of all the Tribunal ought to have examined as to whether the appellant could able to prove the accident and the negligence on the part of the driver of the offending vehicle. In the case at hand Ext.A5 is a crucial document which would indicate that on 1.2.2004 at 12.30 p.m. the appellant was brought to Mangala Medical Centre, Varkala with injuries of contusion with tenderness over the mid aspect of left leg, lacerated wound 1 c.m. X 1 c.m. bone deep with contusion on left ankle. The history and alleged cause of the injury noted in Ext.A5 is, “hit by a Maruti Car at 12.15 p.m. on 1.2.2004 near Venkulam, Edava”. The above fact would prove that the accident as narrated by the appellant had taken place at the time and date mentioned in the claim petition. The next question is as to whether the appellant had succeeded in proving the negligence on the part of the 2[nd] respondent. There is evidence to the effect that the police had registered a case against the 2[nd] respondent, investigated the same and charge sheeted him for causing the accident. Merely because the FIR was registered on a later stage based on a private complaint, the said evidence cannot be discarded in toto, M.A.C.A.No.558/2014 5 especially in view of Ext.A5 document. Further it is pertinent to note that the respondents have not adduced any contra evidence to rebut the contents of the documents produced in evidence. 6. In a Division Bench decision of this Court in **New India Insurance Company Ltd. v. Pazhani Amma (2011** **(3) KLT 648)** it is held that production of police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the MV Act. Therefore we are of the opinion that the appellant was successful in discharging his burden of adducing prima facie proof regarding the negligence. 7. Whether the injuries claimed to have sustained in the accident are genuine or not and as to whether the appellant is entitled for compensation based on such injuries are matters which need to be considered by the Tribunal on evaluation of the evidence on record. Unfortunately, the Tribunal had not ventured into such an exercise, instead it had dismissed the claim by observing that it could not be found that the accident occurred on account of the rashness and M.A.C.A.No.558/2014 6 negligence on the part of the 2[nd] respondent. We are of the considered opinion that the matter requires reconsideration based on the above findings, for determining the quantum of compensation for which the appellant is entitled. Interest of justice can be achieved by remitting the matter back to the Tribunal for the said purpose. 8. In the result, the above appeal is allowed. The impugned award of the Motor Accidents Claims Tribunal, Attingal in O.P.(MV)No.306/2005 is hereby set aside. It is found that the appellant had sustained injuries in an accident which occurred on 1.2.2004 when the Maruti Car owned by the 1[st] respondent and driven by the 2[nd] respondent had hit against the scooter on which the appellant was riding. It is also held that the accident occurred due to negligence on the part of the 2[nd] respondent and the 3[rd] respondent being the insurer of the vehicle is liable to indemnify the 1[st] respondent with respect to payment of the compensation for which the appellant is eligible. 9. The claim petition, O.P.(MV)No.306/2005, is hereby restored on the files of the Motor Accidents Claims Tribunal, M.A.C.A.No.558/2014 7 Attingal. The Tribunal is directed to dispose of the claim petition by determining the amount of compensation for which the appellant is eligible, if necessary after affording the parties opportunity to adduce further evidence. Considering the fact that the claim is of the year 2005, the Tribunal shall take all earnest endeavour to dispose of the same at the earliest, at any rate, within a period of two months from the date of appearance of the parties. The parties are directed to appear before the Tribunal on **3.1.2018** . The Registry is directed to transmit the Lower Court Records to the Tribunal forthwith. Sd/- **C.K.ABDUL REHIM, JUDGE** Sd/- **SHIRCY.V., JUDGE** skj