National Insurance Co. Ltd. v. Sahadevan, S.S. Rajesh & M. Sathyadas

1 MACA No.293 of 2012 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 8[TH] DAY OF FEBRUARY 2022 / 19TH MAGHA, 1943 MACA NO. 293 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OPMV 1988/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,NEYYATTINKARA APPELLANT/S:** NATIONAL INSURANCE CO.LTD. NAGARCOIL, REP. BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G. ROAD, ERNAKULAM, KOCHI -682 035. BY ADV SRI.E.M. JOSEPH ## **RESPONDENT/S:** 1 SAHADEVAN AGED 31, S/O. SUNDARAN, NOW RESIDING AT KANIYRAMCODE VEEDU, AYINKAMAM, PARASSALA.P.O, PARASSALA VILLAGE, NEYYATINKARA TALUK, THIRUVANANTHAPURAM DISTRICT ALSO HAVING RESIDENCE AT PAMPETTIVILA VEEDU, ATHENCODU, PADANTHALUYMOODU POST, KULAPPURAM VILLAGE, VILAVAMOODU TALUK, K.K. DISTRICT. 2 S.S. RAJESH S/O. SUNDARAN, MEENACHAL VEEDU, KALIYIKKAVILA POST, KULAPPURAM VILLAGE, KANYAKUMARI DISTRICT, TAMIL NADU. 3 M. SATHIYADAS S/O. MUTHUNAYAKAM, 16/1 POTHUVAL VILAI VEEDU, PADANTHALUMMOODU.P.O, KULAPURAM VILLAGE, KANYAKUMARI DISTRICT. BY ADV SRI.S.MOHAMMED AL RAFI -R1 ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING** **COME UP FOR ADMISSION ON 08.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.293 of 2012 ## **C.S.DIAS, J. ====================== MACA No.293 of 2012** ## **====================== Dated this the 8[th] day of February, 2022.** ## **JUDGMENT** The appellant - insurer was the third respondent in OP (MV) No.1988/2005 on the file of the Motor Accident Claims Tribunal, Neyyattinkara. The first respondent in the appeal was the petitioner and the respondents 2 and 3 were the respondents 1 and 2 before the Tribunal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, ( in short 'the Act'), claiming compensation on account of the injuries sustained to him in an accident on 7.4.2004. It was his case that, on the above said date, 3 MACA No.293 of 2012 while he was walking from Government Hospital, Padanthalummoodu on the Thiruvananthapuram – Nagercoil National Highway, a motor cycle bearing registration No.TN-04/X 4504, driven by the second respondent in a negligent manner, hit the petitioner. The petitioner suffered a compound fracture on both bones of his right leg and a crush injury. He was treated as an inpatient at the Dr.Issac Bone and Joint Specialty Hospital, Marthandom for a period of 19 days. The petitioner was a Mason by profession and was earning a monthly income of Rs.6,000/-. The motorcycle was owned by the first respondent and insured with the third respondent. Hence, the petitioner claimed a compensation of Rs.2,00,000/from the respondents. 3. The respondents 1 and 2 had filed a joint written statement admitting that the first respondent 4 MACA No.293 of 2012 was the owner and the second respondent was the rider of the motor cycle. However, they refuted the allegations in the claim petition. They stated that as the motorcycle was insured with the third respondent, the third respondent was to indemnify the liability of the first respondent arising out of the accident. 4. The third respondent/insurer had filed a written statement denying the pleadings in the claim petition. It was, inter alia, contended that the allegation regarding the accident was concocted and the accident had not taken place as stated in the claim petition. It was stated that the petitioner was a pillion rider on the motorcycle, which hit against a dog that cut across the road. The third respondent also stated that, the Tribunal did not have the territorial jurisdiction to entertain the claim petition, as the petitioner was not a resident of Thiruvananthapuram. 5 MACA No.293 of 2012 Further, as the motorcycle was covered by an 'Act Policy', and the petitioner was a gratuitous passenger, the third respondent was not liable to indemnify the first respondent. Hence, the third respondent prayed that the claim petition may be dismissed. 5. The petitioner had produced and marked Exts A1 to A8 series in evidence. The third respondent examined its Investigator as RW1 and marked Exts B1 and B2 in evidence through him. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the petitioner to recover from the third respondent an amount of Rs.1,02,974/- with interest and cost . 7. Aggrieved by the allowing of the claim petition, the third respondent is in appeal. 8. Heard; Sri.E.M Joseph, the learned counsel 6 MACA No.293 of 2012 appearing for the appellant/third respondent/insurer and Sri.S.Mohammed Al Rafi, the learned counsel appearing for the first respondent/petitioner. 9. The questions that arise for consideration in the appeal are (i) whether the Tribunal has territorial jurisdiction to entertain the claim petition, (ii) whether the finding that the petitioner was a pedestrian is sustainable in law or not, and (iii) whether the quantum of compensation awarded by the Tribunal is reasonable and just. ## **Question No.(i)** 10. Sec.166 (2) of the Motor Vehicles Act, 1988, reads as follows: “166 – Application for compensation xxxx xxxx xxxx (2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the 7 MACA No.293 of 2012 local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed: (emphasis given) 11. Interpreting Sec.166 (2) of the Act, the Hon'ble Supreme Court in **Mantoo Sarkar vs. Oriental Insurance Co. Ltd [ (2009) 2 SCC 244]** has declared that as the Motor Vehicles Act, 1988, is a special statute, the jurisdiction of the Tribunal having regard to the terminologies used therein, must be held to be wider than that of the civil court. Hence, the claimant has a wide option and the residence of the claimant determines the jurisdiction of the Tribunal. Further, in view of Sec.169 of the Act, the inquiry before the Tribunal is summary in nature. 12. In the case at hand, the petitioner had specifically pleaded in the claim petition that, he was residing at Ayinkamam, Parassala.P.O, Neyyattinkara 8 MACA No.293 of 2012 Taluk, Thiruvananthapuram District, which is within the territorial precincts of the present Tribunal. Even though the third respondent contended that the petitioner was not residing in the above said address, there is nothing to discredit the assertion of the petitioner in the claim petition. 13. The Tribunal has rightly concluded that while deciding the question of territorial jurisdiction, a rigid view cannot be taken. 14. When the petitioner himself had asserted that he was residing in the address shown in the claim petition, without there being any incriminating material, the jurisdiction of the Tribunal cannot be ousted on the mere assertion of the third respondent. Moreover, it is well settled that the question of territorial jurisdiction will have to be determined as per the pleadings in the original petition and be liberally 9 MACA No.293 of 2012 construed, unless there is any material to disprove the pleading. In view of the law laid down in in **Mantoo Sarkar** (supra), and the broad definition in Sec.166 (2) of the Act, I do not find that the Tribunal committed any error in holding that it had territorial jurisdiction. Hence, I answer Question No.(i) against the appellant and hold that the Tribunal had the territorial jurisdiction to entertain the claim petition. ## **Question No.(ii)** 15. The definite case of the petitioner was that, while he was walking along the ThiruvananthapuramNagercoil National Highway, the motorcycle ridden by the second respondent hit him and he sustained multiple injuries. 16. To corroborate the pleadings, the petitioner produced Exts A1 FIR, A2 charge-sheet, A3 scene mahazar and A4 judgment. 10 MACA No.293 of 2012 17. On the contrary, the third respondent examined a person said to be their Investigator, who prepared Ext B2 report, wherein he has concluded that the petitioner was a pillion rider on the motorcycle. 18. The Tribunal discarded the evidence of RW1 and Ext B2 report for the reason that the information gathered by RW1 was just hearsay. 19. On a re-appreciation of the rival contentions and the materials on record, I find the course adopted by the Tribunal to be justifiable and correct, because the third respondent had not examined any of the socalled eye-witnesses as reported in Ext B2 report. 20. Admittedly, RW1 was not an eye-witness to the accident and he prepared Ext B2 on information purportedly gathered by him. Therefore, if Ext B2 is to be accepted, the statements given by the so-called witnesses have to be corroborated by examining the 11 MACA No.293 of 2012 said persons. 21. Furthermore, on the basis of Ext A2 chargesheet, the jurisdictional Magistrate had convicted the second respondent as per Ext A4 judgment for an offence under Sec.279 of the Indian Penal Code. 22. In **New India Assurance Co. Ltd v. Pazhaniammal** [2011 (3) KLT 648], a Division Bench of this Court has categorically held that, the production of charge-sheet is a prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Act. If any party disputes the charge-sheet, the burden is on such party to adduce evidence and discredit the charge-sheet. 23. In the present case, other than for examining RW1, who was not an eye-witness, there is no evidence to discredit Ext A2 charge-sheet, which stands fortified by Ext A4 judgment passed by the competent 12 MACA No.293 of 2012 Magistrate. 24. In the above legal and factual matrix, I do not find any error or illegality in the Tribunal arriving at the conclusion that the petitioner was a pedestrian and was knocked by due to the negligent riding of the motorcycle by the second respondent Hence, I answer Question No.(ii) against the appellant. ## **Question No.(iii)** 25. The petitioner had claimed that he was a Mason by profession and was earning a monthly income of Rs.6,000/-. The Tribunal fixed the notional monthly income of the petitioner at Rs.3,000/-. The Tribunal after taking note of Ext A6 wound certificate and Ext A7 treatment certificate found that the petitioner had suffered a compound fracture on both bones of his right leg and that he was treated as an inpatient for a period of 19 days. 13 MACA No.293 of 2012 26. On the date of trial of the claim petition, i.e., 6.6.2011, the Tribunal personally saw the petitioner and was convinced that he has a permanent disability because he was limping. Also, the petitioner stated that he was having persistent pain at the fracture side, that he was having difficulty in doing labour and also he had not removed the implants for the want of money. Accordingly, the Tribunal fixed the functional disability of the petitioner at 8%. 27. On a re-appreciation of the pleadings, materials on record, particularly taking note of the fact that the petitioner has already realized the entire award amount from the third respondent, at this distance of time, I do not find any ground to interfere with the quantum of compensation awarded by the Tribunal. Accordingly, I answer Question No.(iii) also against the appellant. 14 MACA No.293 of 2012 In view of the findings on Question Nos (i) to (iii), I hold that there is no merit in the appeal. Resultantly, the appeal is dismissed. However, in the peculiar facts and circumstances of the case, the parties shall bear their respective costs. sd/- sks/8.2.2022 **C.S.DIAS, JUDGE**