New India Assurance Co. Ltd. v. Jogy John and Sojan, MACA Nos. 49 & 2185 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 21ST DAY OF NOVEMBER 2016/30TH KARTHIKA, 1938** **MACA.No. 49 of 2013 () -----------------------** **AGAINST THE AWARD IN OPMV 317/2007 of ADDL. MACT,EKM DATED 09-08-2012** **APPELLANT/3RD RESPONDENT:** **------------** **NEW INDIA ASSURANCE CO.LTD.** **MG. ROAD, ERNAKULAM, REP.BY THE DY. MANAGER, REGIONAL OFFICE, KOCHI.** **BY ADV. SRI.RAJAN P.KALIYATH** **RESPONDENT/CLAIMANT & R2:** **--------------** **1. JOGY JOHN** **S/O.P.T.JOHN, PAYYAPPILLY HOUSE, KUTTIKATTUKARA POST, UDYOGAMANDAL ERNAKULAM 683 501.** **2. SOJAN S/O.VELAYUDHAN, THACHAPPILLY HOUSE, PADIYOORKARA, VARAPETTY VILLAGE, KOTHAMANGALAM POST, ERNAKULAM 686691.** ## **R1 BY ADV. SMT.K.TRESA RANI GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2016 ALONG WITH MACA NO.2185/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **M.A.C.A.Nos.49 & 2185 OF 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21[st] day of November, 2016 ## **JUDGMENT** ## Ravikumar, J. Both the appeals arise from the judgment and award dated 9.8.2012 in O.P.(MV)No.317/2007 passed by the Additional Motor Accidents Claims Tribunal, Ernakulam. The third respondent therein, who is the insurer of the alleged offending vehicle is the appellant in the former appeal and the latter appeal has been preferred by the claimant. For the sake of convenience, the parties are referred to hereinafter in this judgment in accordance with their status before the Tribunal in O.P.(MV)No.317/2007, unless otherwise specifically mentioned. 2. We have heard the learned counsel for the petitioner and the learned counsel for the third respondent insurance company. In the former appeal, though the rider of the motor cycle in which the petitioner travelled as a pillion rider was arrayed as the second 2 MACA Nos.49 & 2185 of 2013 respondent, notice to him was dispensed with earlier, as per dated 19.09.2016. 3. The main contention in the former appeal filed by the insurance company is that the Tribunal went wrong in finding that the accident occurred due to the negligence on the part of the first respondent ( first respondent before the Tribunal) who was riding motor cycle bearing Reg.No.KL 7 AJ 1884 insured with the third respondent, insurance company. The contention of the learned counsel for the third respondent is that the evidence of the petitioner as PW1 would indicate that he was riding the motor cycle and it is incorrect to say that he was travelling on motor cycle bearing Reg.No. KL 7 \/AN 8518 as pillion rider. The alternative contention is that if at all it cannot be found that the accident occurred due to the exclusive negligence from the part of the petitioner, the Tribunal ought to have found that the accident occurred due to the composite negligence of the riders of both the motor cycles and in such circumstances the petitioner ought not to have been granted the entire assessed compensation. 4. The grievance in the latter appeal is relating to the denial 3 MACA Nos.49 & 2185 of 2013 of interest from 22.02.2007. Obviously, the Tribunal as per impugned award granted interest on the amount awarded only from 22.02.2009 till realization. The contention is that the date 22.02.2009 has been given as the date from which the petitioner is entitled to get interest on mistaken fact relating the date of filing of the claim petition. It is the submission of the learned counsel for the petitioner that in the year 2006, claim petition was filed and along with an application to grant exemption from paying court fee. That application was allowed only on 22.02.2007 and it is only on that day after granting exemption, the claim petition was taken on file as O.P.(MV)No.317/2007. 5. In view of the fact that the sole dispute in the latter appeal pertains to the question whether the Tribunal is justified in limiting the entitlement to interest from 22.2.2009 and taking note of the fact that the question to be resolved in the former appeal as mentioned above would not be having any impact on this issue, we ween that this appeal can be considered first. On the aforesaid question, we have also heard the learned counsel for the third respondent insurance company. We have also gone through the original records. It is true that the MACA Nos.49 & 2185 of 2013 4 application was filed by the petitioner for compensation for the injuries sustained on 12.07.2004 in the year 2006 and an application was moved to grant exemption from paying court fee. The records would reveal that that application was allowed only on 22.02.2007 and on that day the claim petition was taken on file as O.P.(MV)No.317/2007. Despite our earnest efforts, we do not find any reason to give any relevancy to the date 22.02.2009. That apart, in the absence of any sustainable reason, under normal circumstances when an application for compensation is allowed, the applicant would be entitled to get interest from the date of the petition. In this case the date of petition has to be taken as 22.02.2007 as the very application for exemption from paying court fee was allowed and the case was taken on file only on that day. True that the petitioner moved a review petition as R.P.No.6866/2012 in O.P.(MV)No.317/2007 for the aforesaid purpose. However, the same was dismissed as per order dated 17.10.2013. It is to be noted that the said review petition was virtually considered by the successor officer of the Tribunal and as per the said order it was held that while passing orders in the claim petition, the Tribunal had used 5 MACA Nos.49 & 2185 of 2013 discretion in the matter of granting of interest and interest was ordered to be paid only on 22.02.2009 and in such circumstances, it could not be said that there occurred an error apparent on the face of the record warranting exercise of review jurisdiction. On perusing the impugned award, it is evident that the Tribunal granted interest only from 22.02.2009. Absolutely no reason whatsoever was given for not granting interest from the date of filing of the petition viz., 22.02.2007. We have already found that in the absence of any special reason for declining interest from the date of petition, under normal circumstances an applicant in a claim petition under the Motor Vehicles Act is entitled to get interest from the date of petition. Since we have already found the date of petition as 22.02.2007 and no special reason has been revealed from the evidence on record to decline interest from 22.02.2007 to 21.02.2009, we are of the view that in the impugned award, the date given as 22.02.2009 instead of 22.02.2007 is due to some oversight. In such circumstances, it is held that the petitioner/appellant would be entitled to get interest from 22.02.2007. 6. We will now consider M.A.C.A.No.49/2013. As noticed 6 MACA Nos.49 & 2185 of 2013 hereinbefore, the said appeal has been preferred by the insurer of the motor cycle bearing Reg.No. KL-7 AJ 1884. Obviously, the contention of the appellant is that the Tribunal went wrong in holding that the accident in which the petitioner sustained injuries occurred due to the negligence on the part of the first respondent. It is contended that going by the version of PW1, the first respondent was proceeding from west to east through the northern half of the road in question at the time of the accident. The contention is that going by the evidence of the petitioner as PW1, he was coming from Kalamassery and therefore it is contended that he must have been coming from east to west. The evidence on record would reveal that there was a median on the road in question. The petitioner who was proceeding from Kalamassery i.e. from east to west entered the other portion of the road leading from west to east for the purpose of crossing the same and to go to a place that situates by the side of the northern end of the road. In this case Ext.A1 is the charge sheet. Going by the charge sheet the first respondent who was the rider of the motor cycle bearing Reg.No.KL 07 AJ 1884 is the accused. In the light of the decision in _**New India**_ 7 MACA Nos.49 & 2185 of 2013 _**Assurance Co.Ltd. v. Pazhaniammal ( 2011 (3) KLT 648)**_ , in a claim filed under Section 166 of the Motor Vehicles Act, production of the final report is a sufficient prima facie evidence of negligence. True that it is evident from the expression employed in the said decision that it would only constitute a sufficient prima facie evidence. When that document constitutes only prima facie evidence, certainly it is rebutable. Then the question is what is the evidence let in by the third respondent or in that matter by the first respondent to rebut the said evidence. As regards the first and second respondents they remained ex parte before the Tribunal. They did not file any written statement as well. 7. The learned counsel for the third respondent insurance company contended that the Tribunal ought to have scanned the evidence discernible from Ext.A3 scene mahazar. It is to be noted that no oral evidence was adduced by the respondents. There is nothing on record which would reveal whether Ext.A3 scene mahazar was prepared and the place of occurrence was identified by the officer concerned with the help of an occurrence witness. In other words, it is MACA Nos.49 & 2185 of 2013 8 not discernible from there as to whether the place of occurrence was identified on being shown by the occurrence witness. It is to be noted that neither the person who had shown the place of occurrence if it was shown by an occurrence witness or the officer who prepared Ext.A3 was examined before the Tribunal. In such circumstances, in the absence of any oral evidence in support of the recitals in the scene mahazar merely because something could be drawn from scene mahazar cannot be a reason to hold that the scene mahazar would outweigh Ext.A1 charge sheet or it would itself act as rebuttal evidence to the sufficient prima facie evidence adduced by the production of Ext.A1 final report. That apart, going by Ext.A3 scene mahazar, both the vehicles were virtually proceeding from west to east. Going by the scene mahazar place of occurrence is on the northern side of the road leading from west to east. It is evident that the portion of the road leading from east to west and the portion of road leading from west to east are separated by a median. In such circumstances, it is evident that both the vehicles were on the same side of the road at the time of the accident and were moving in the same direction atleast at the time of MACA Nos.49 & 2185 of 2013 9 the accident lest a collision between these two vehicles would not have occurred. At any rate, it is to be found that the third respondent had not adduced any evidence to rebut the sufficient prima facie evidence on the question of negligence. In such circumstances, we do not find any reason to uphold the contention of the third respondent that the accident occurred due to the negligence of the petitioner and not due to the negligence on the part of the first respondent. Since the insurance coverage of the vehicle driven by the first respondent is not in dispute, the third respondent cannot wriggle out of the liability to indemnify the first respondent. 8. In such circumstances, there is absolutely no merit in the contention advanced by the third respondent. The Tribunal as per the impugned award granted a total compensation of Rs.6,29,648/- with interest @ 9% from 22.02.2009 till deposit. In view of our finding that the Tribunal has correctly fixed the negligence on the part of the first respondent and rightly called upon the third respondent to indemnify the first respondent, the third respondent is liable to deposit the amount granted as per the impugned award. In view of the finding MACA Nos.49 & 2185 of 2013 10 in the latter appeal, the said amount will carry interest from 22.02.2007 instead of 22.02.2009. In the result, M.A.C.A.No.49/2013 is dismissed. M.A.C.A.No.2185/2013 is allowed and the amount granted under the impugned award viz., Rs.6,29,648/- will carry interest @ 9% per annum from 22.02.2007 till realization. There will be no order as to costs in both the appeals. ## **C.T.RAVIKUMAR, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv.