Muraleedharan v. Balakrishnan and Kerala State Insurance Department

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 2[ND]DAY OF SEPTEMBER 2022 / 11TH BHADRA,1944 ``` ## **`MACA NO. 1319 OF 2009`** ``` OP(MV) NO.390/2002 OF ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, ALAPPUZHA ``` ## **`APPELLANT/PETITIONER:`** ## **`MURALEEDHARAN, S/O.PADMANABHAN,`** ``` THAKIDIVELIYIL HOUSE, MARARIKULAM SOUTH, PANCHAYATH WARD, ALAPPUZHA. ``` ## **`BY ADV SRI.S.SANAL KUMAR`** ## **`RESPONDENTS/RESPONDENTS:`** - **`1 BALAKRISHNAN, S/O.PONNAN, KULANGARA VEETIL, VETTA MUKKU, NEAR PTA NAGAR,, VATTIYOORKAVU WARD, THIRUVANANTHAPURAM - 6.`** - **`2 KERALA STATE INSURANCE DEPARTMENT, REPRESENTED BY THE DISTRICT OFFICER, TRIVANDRUM.`** ## **`R2 BY GOVERNMENT PLEADER SMT.SHEEBA`** ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLYHEARD ON 01.09.2022, THE COURT ON 02.09.2022 DELIVERED THE FOLLOWING: ``` MACA 1319 of 2009 2 ## **J U D G M E N T** This appeal has been preferred by the claimant in OP(MV)No. 390 of 2002 on the file of the Additional Motor Accidents Claims Tribunal, Alappuzha challenging the impugned judgment dismissing his claim. 2. On 06.10.2001 at 10 a.m. the appellant met with a road traffic accident near Bernad Junction, Kalavoor. The appellant was driving his auto rickshaw and then KL-01/S 8962 car driven by the 1[st] respondent dashed against his auto rickshaw and as a result the auto rickshaw overturned and he sustained injuries including fracture of right patella. He was admitted and treated at Medical College Hospital, Alappuzha for four days and he was on rest for five weeks. Even after discharge, he was continuing Ayurveda treatment. He approached the Tribunal claiming compensation of MACA 1319 of 2009 3 Rs.2,00,000/-. But the Tribunal dismissed his claim finding that the accident occurred solely due to the negligence from the part of the appellant, and hence this appeal. 3. The 1[st] respondent is the owner-cum-driver of KL 01/S 8962 Tata Indica car and the 2[nd] respondent is its Insurer. The 1[st] respondent owner-cum-driver admitted the accident. But according to him, the appellant drove the auto rickshaw from north to south at high speed through the wrong side and hit the car resulting in the accident. The car was duly insured with the 2[nd] respondent as on the date of accident and according to the 1[st] respondent, even if he is found liable to compensate the appellant, the 2[nd] respondent has to indemnify him, as the vehicle was having valid insurance policy. 4. No written statement was seen filed by the 2[nd] MACA 1319 of 2009 4 respondent Insurer. 5. No oral evidence was adduced from either side. Exts.A1 to A6 were marked from the side of the appellant/claimant. 6. Now let us see whether the impugned judgment is liable to be set aside? 7. Learned Government Pleader Smt.Sheeba appeared for the 2[nd] respondent, and vehemently opposed the appeal. 8. Learned Tribunal, after going through the facts and evidence, came to the conclusion that the accident occurred solely due to the negligence of the appellant, and there was no rashness or negligence on the part of the 1[st] respondent. Learned Tribunal placed reliance on the scene mahazar and charge sheet to find that the accident occurred on the wrong side of the road, and the appellant abruptly drove the auto rickshaw towards the MACA 1319 of 2009 5 western side cutting across the highway, and so, the 1[st] respondent had to apply sudden break, which ultimately ended in the accident. From the available documents, it could be seen that the finding of the Tribunal is a strange one. Even the 1[st] respondent driver of the car had no case that the appellant abruptly drove the auto rickshaw crossing the highway and it resulted in the accident. The 161 statement of the witnesses are to the effect that the auto rickshaw was parked on the western side of the road and it moved forward for going to the road lying towards west, and while it was driven through the western side, the car came from the opposite direction and dashed against the auto rickshaw. Ext A3 scene mahazar shows that the road at that place is having width of 10.50 mtrs. apart from road margin of 2.5 mtrs on either side. Even if the auto rickshaw driven by the appellant was coming through the western side, MACA 1319 of 2009 6 enough space was there on the eastern side for the car to proceed, without hitting the auto rickshaw. Since the auto rickshaw was parked on the western side of the road, and it wanted to go through the road lying towards west, the appellant cannot be blamed for driving the auto rickshaw through the western side of the road. No evidence is there to show that the auto rickshaw abruptly crossed the road, so that the driver of the car could not avert the accident in spite of due diligence. Since the road was wide enough, even if the auto rickshaw was coming through the western side, the 1st respondent could have avoided the accident, if he was driving his vehicle carefully at a reasonable speed. So the Tribunal could not be justified in finding that the accident occurred solely due to the negligence of the appellant/claimant so as to reject his claim. The Insurance Company did not file any written statement. MACA 1319 of 2009 7 The 1[st] respondent owner-cum-driver of the offending car had no case that the appellant drove the auto rickshaw crossing the highway abruptly, to cause the accident. 9. In **New India Assurance Co. Ltd. vs. Pazhaniammal** [2011 (3) KLT 648] a Division Bench of this Court held that production of police charge sheet is _prima facie_ a sufficient evidence of negligence for the purpose of the claim under Section 166 of the MV Act. If any of the parties do not accept such charge sheet, burden must be on such party to adduce evidence. If Court feels that charge sheet is collusive, the Tribunal can record that charge sheet cannot be accepted and call upon the parties at any stage to adduce oral evidence of the accident and alleged negligence. In such case, issue of negligence must be decided on other evidence, ignoring charge sheet. MACA 1319 of 2009 8 10. In the case on hand, Ext.A5 charge sheet was laid against the 1[st] respondent for driving KL-01/S-8962 car in a rash and negligent manner and for causing grievous hurt to the appellant in the accident that occured on 06.10.2001. When the Tribunal did not accept that charge sheet, it was bound to call upon the parties to adduce evidence to prove that the rashness and negligence attributed against the accused therein was not true, and the charge sheet was a collusive one. Without resorting to any such method, the Tribunal ought not have rejected the charge sheet in a claim under Section 166 of the MV Act. There is no basis for the finding of the Tribunal that the accident occurred solely due to the negligence of the appellant and there was no negligence from the part of the 1[st] respondent. So that finding of the Tribunal is liable to be set aside. 11. Now coming to the claim of compensation, MACA 1319 of 2009 9 Ext.A4 wound certificate shows that the appellant suffered (i)lacerated wound left side of temple, (2) lacerated wound on the upper portion of left ear, (3) contused abrasion left forearm, (4) contused abrasion left knee (5) abrasion left shoulder and (6) fracture right patella. Ext.A6 Discharge Card shows that he was admitted in Medical College Hospital, Alappuzha on 06.10.2001 and was discharged on 09.01.2001. He was a 40 year old Entrepreneur earning monthly income of Rs.5,000/-. Though no evidence has been adduced to prove his income, going by **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011 SC 2951]** , his monthly income could be fixed @ Rs.3,000/- as the accident was in the year 2001. He had suffered fracture of right patella along with lacerated wounds and abrasions. So, a period of rest for one month is justified. So loss of MACA 1319 of 2009 10 earning Rs.3,000/could be awarded. Towards transportation expenses Rs.500/would have been sufficient, as the accident was at Kalavoor and he was treated at Medical College Hospital, Alappuzha. Towards damaged clothing Rs.500/- could be awarded. Towards bystander expenses Rs.500/- will be sufficient as he was hospitalised for 4 days. Towards extra nourishment also Rs.500/is reasonable. Towards pain and suffering Rs.5,000/- is justified as the accident was in the year 2001. There is nothing to show that he had suffered any disability or loss of earning capacity due to the accident. No medical bills were produced by the appellant to prove treatment expenses if any, and hence no amount is awarded. The appellant is entitled to get compensation of Rs.10,000/-(3,000 + 500 + 500 + 500 + 500 +5000) (Rupees Ten Thousand only) in total. 12. As already stated no written statement was MACA 1319 of 2009 11 seen filed by the 2[nd] respondent Insurer. The 1[st] respondent owner-cum-driver of the car submitted that the car KL-01/S-8962 was validly insured with the 2[nd] respondent during the period of incident and he produced copy of the Certificate of Insurance for the period 25.08.2001 to 24.08.2002 covering the date of accident. He produced copy of his driving licence also to show that there was no violation of the policy conditions. Since, the accident occurred due to the rash and negligent driving of the offending vehicle by the 1[st] respondent, the 2[nd] respondent Insurer is liable to indemnify him as there was valid policy. So, though the 1[st] respondent is liable for the accident, the 2[nd] respondent Insurer has to compensate the appellant. 14. The 2[nd] respondent-Insurer is directed to deposit compensation of Rs.10,000/(Rupees Ten Thousand only) in the Bank account of the appellant MACA 1319 of 2009 12 with 7% interest from the date of petition till realisation, (except 358 days of delay in filing the appeal) within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475 /2016 dated 07/11/2019 after deducting the liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/01.09.2022