National Insurance Company Ltd. v. Aby V.P. and Others

**MACA.No.728 OF 2014(C)** 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942** ## **MACA.No.728 OF 2014(C)** **AGAINST THE AWARD IN OP(MV) 979/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR DATED 31.10.2013** ## **APPELLANT/3RD RESPONDENT:** **THE MANAGER NATIONAL INSURANCE COMPANY LTD., PERUMBAVOOR BRANCH, ERNAKULAM DISTRICT.** **BY ADVS. SRI.LAL K.JOSEPH SRI.V.S.SHIRAZ BAVA** ## **RESPONDENTS/PETITIONER AND THE RESPONDENTS 1,4,5 AND 6:** **1 ABY V.P. S/O. PAILY, VADAKKAN HOUSE, PATTIMATTOM P.O., PATTIMATTOM VILLAGE, ERNAKULAM DISTRICT-688011.** **2 BIJU S/O. SIVARAMAN, KATTIKUDIYIL HOUSE, VALAMABOOR KARA, MAZHUVANNOOR VILLAGE, N ORTH MAZHUVANNOOR P.O.-688910.** **3 LEKHA W/O. DILEEP, VETTIKKATTUMURI HOUSE, NORTH MUZHUVANNOOR KARA, NORTH MUZHUVANNOOR P.O. AIRAPURAM VILLAGE-688011. 4 ANJALY D/O. DILEEP, VETTIKKATTUMURI HOUSE, NORTH MUZHUVANNOOR KARA, NORTH MUZHUVANNOOR P.O. AIRAPURAM VILLAGE-688011.** 2 ## **MACA.No.728 OF 2014(C)** **5 AJEESH S/O. DILEEP, VETTIKKATTUMURI HOUSE, NORTH MUZHUVANNOOR KARA, NORTH MUZHUVANNOOR P.O. AIRAPURAM VILLAGE-688011.** **R1 BY ADVS. SRI.P.AYYAPPAN SRI.P.K.MOHAMMED PUZHAKKARA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.728 OF 2014(C)** 3 ## **C.S.DIAS,J** - - - - - - - - - - - - - - - - - - - - - - - - MACA No. 728 of 2014 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4[th] day of March, 2021 ## **JUDGMENT** The appellant was the 3[rd] respondent in OP(MV)No.979 of 2007 on the file of the Motor Accident Claims Tribunal, Perumbavoor. The first respondent was the petitioner in the claim petition and respondents 2 to 5 were the respondents 1, 4, 5 and 6 before the Tribunal. The parties are, for the sake of convenience, referred to as per their status in the claim petition. 2. The petitioner had filed the claim petition, under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in accident 02.01.2007. The brief facts in the claim petition, for the determination of the appeal, are that: on 02.01.2007 while the petitioner was attempting to get down from Lorry bearing registration No.KL 07/AD-5084 driven by the 1[st] respondent, the 1[st] **MACA.No.728 OF 2014(C)** 4 respondent moved the vehicle forward in an negligent manner and the petitioner sustained injuries. The 2[nd] respondent was the owner of the vehicle and the 3[rd] respondent was the insurer. Hence, respondents 1 to 3 are jointly and severally liable to compensate the petitioner on account of the injuries that he sustained, which he quantified at Rs.3,00,000/- , but was limited to Rs.1,50,000/-. 3. The 3[rd] respondent-insurance company filed a written statement, refuting the allegations in the claim petition. However, insurance company admitted the insurance policy of the offending vehicle. It was contended that the petitioner was travelling in the Lorry as a gratuitous passenger. Hence, the 3[rd] respondent has no liability to indemnify the 3[rd] respondent- the insurer. It was further contended that as the 3[rd] respondent had not collected any additional premium, the claim petition as against the 3[rd] respondent was not maintainable. 4. During the pendency of the proceedings, the **MACA.No.728 OF 2014(C)** 5 2[nd] respondent died and his legal representatives were impleaded as additional respondents 4 to 6. 5. The respondents 1 and 5 remained absent and they were set ex-parte. 6. The additional respondents 4 and 6 filed a joint written statement, _inter alia_ , contending that the offending vehicle was insured with the 3[rd] respondent. The accident occurred solely due to the negligence of the petitioner. The 1[st] respondent was holding a valid driving licence. The respondents 4 and 6 were not liable to pay any amount as compensation to the petitioner and the claim petition is only to be dismissed. 7. The petitioner produced and marked Exts. A1 to A8 series in evidence. The 3[rd] respondent produced and marked Ext.D1-copy of the insurance policy. Neither party adduced any oral evidence. 8. The Tribunal, after analysing the pleadings and materials of record, by the impugned award allowed the claim petition, in part, holding that **MACA.No.728 OF 2014(C)** 6 respondents 1 and 3 to 6 were jointly and severally liable to pay the petitioner an amount of Rs.43,150/with interest at the rate of 8% per annum from the date of petition till the date of realisation and proportionate cost. The 3[rd] respondent was directed to produce a cheque for the compensation amount in favour of the petitioner. 9. Aggrieved by the impugned award, the 3[rd] respondent-insurance company is in appeal. 10. The questions that arise for consideration in the appeal is (i) whether the petitioner was gratuitous passenger, and if so, (ii) whether the appellant/3[rd] respondent has to be exonerated of its liability. 11. The fact that the accident occurred on 02.01.2007 and the petitioner had sustained injuries is discernible from Exts.A1 to A5 series documents. 12. The specific case of the petitioner was that he was a loading and unloading worker and was not a gratuitous passenger. The said pleading stands corroborated by Ext.A2 FIR and Ext.A5 charge-sheet **MACA.No.728 OF 2014(C)** 7 filed by the police in Crime No.7 of 2007 of the Kunnathunad Police Station. 13. A Division Bench of this Court in **New India** **Assurance Co. Ltd. v. Pazhaniammal and Others** [2011(3) KLT 648], has laid down the law that the investigation conducted by the police and production of the charge sheet is _prima facie_ proof of the negligence attributed against the indictee in the charge-sheet. Then, the onus of proof to rebut the charge sheet is on the person who wants to disprove the charge-sheet. 14. Undisputedly, by Ext.A5 the police has found that it was due to the rashness and negligence on the part of the 1[st] respondent, that the petitioner sustained injuries. It is also seen from Ext.A1 and A5 that the petitioner travelled in the offending vehicle as a loading and unloading worker and he fell down and sustained injuries only because the 1[st] respondent suddenly moved the vehicle. Although the 3[rd] respondent had raised a contention that the petitioner was a gratuitous passenger, no material is forthcoming **MACA.No.728 OF 2014(C)** 8 either documentary or oral, to disprove the chargesheet of the police, particularly that the petitioner was a loading and unloading worker and not a gratuitous passenger. 15. Relying on the ratio in **Pazhaniammal** (supra), it was the bounden duty of the 3[rd] respondent to have mounted the box and let in contra-evidence, to disprove the charge-sheet. So far as the same has not been done, the course adopted by the Tribunal, by accepting Exts.A1 to A5 as proof for establishing that the petitioner was not a gratuitous passenger and that the accident was caused due to the negligence on the part of the 1[st] respondent, cannot be found fault with. 16. In the light of the above findings, I do not find any ground to interfere with the impugned award in exercise of the appellate jurisdiction of this Court. In the result, the appeal is dismissed. Needless to mention that the appellant shall deposit the balance amount due as per the impugned award before the Tribunal along with interest at the rate of 8% per **MACA.No.728 OF 2014(C)** 9 annum from the date of petition till the date of realisation and proportionate cost, within 60 days from today, failing which the 1[st] respondent/ petitioner shall be at liberty to execute the award in accordance with law. **Sd/-** **C.S.DIAS,JUDGE** dlK 04.03.2021