High Court of KeralaSingle JudgeThe appeal will stand rejected.

New India Assurance Co. Ltd. v. Soudabi and Others

Case / Petition Number:MACA. No.162 of 2010

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Vinod Chandran
Judgment Date
2019-02-13
Court Decision / Holding
The appeal will stand rejected.
Final Disposition
The appeal will stand rejected.

Parties to the Case

Appellants / Petitioners

  • New India Assurance Co. Ltd.

Respondents

  • Soudabi, Melamkunthuthu House, Neeleswaram, Thazhekode Village, Koduvllly via, Kozhikode
  • Muhammed Shameel, S/O Shoukathali, minor represented by mother Soudabi, Melamkunaththu House, Neeleswaram, Thazhekode Village, Koduvllly via, Kozhikode
  • Muhammed Shadil, S/O Shoukathali, minor represented by mother Soudabi, Melamkunaththu House, Neeleswaram, Thazhekode Village, Koduvllly via, Kozhikode
  • Sainabha, M/O Late Shoukahli, Melamkunnathu House, Neeleswaram, Thazhekode Village, Koduvllly via, Kozhikode
  • P.V.Moideen Koya, S/O Mammed Koya, H.No.4/1318, Uppath House, Vellyil, Kozhikode
  • Muhammed Nowfal, S/O.Ahammad Maliyatt House, Vellayil Post, Kozhikode
  • The General Manager, K.S.R.T.C., Thiruvananthapuram
  • C.Sugunan, S/O.Muthoran, Chungam House, Choolamvayal, Kunnamangalam, Kozhikode

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri A.A. Ziyad Rahman

Counsels for Respondents

  • • Sri K.H. Asif
  • • Sri P.C. Chacko, SC, K.S.R.T.C.
  • • SMT.Kochumol Koduvath
  • • Sri Babu Joseph Kuruvathazha, SC, K.S.R.T.C.
  • • Sri B. Syed Mohammed
  • • Sri C.A. Majeed
  • • Sri Jacob Abraham
  • • Sri Joy George, SC, K.S.R.T.C.
  • • Sri P.B. Unnikrishnan Nair
  • • Sri V.V. Nandagopal Nambiar, SC, K.S.R.T.C.

Case Synopsis & Summary

MACA.No.162 of 2010 arises from a motor accident claim in Kozhikode where the New India Assurance Company, insurer of the scooter, challenges an award of the Motor Accidents Claims Tribunal. The deceased, husband of the first claimant, died when the scooter toppled and was run over by a KSRTC bus, killing him instantly; two minor children and the grandmother were dependants. The claim petition sought damages against the insurer and others on the theory of negligence by the KSRTC bus driver. The insurer contends that the FIR named the KSRTC driver as the accused and the Scene Mahazar indicates negligence by the KSRTC bus, which allegedly came on the wrong side. It argues the Tribunal erred in attributing negligence to the scooter rider, relying on an eye-witness account that is inconsistent with the Scene Mahazar. It also invokes Jiju Kuruvilla v. Kunjunjamma Mohan (AIR 2013 SC 2293) to urge that, where the accused is named in the FIR, the Tribunal should not fix liability on another. The Tribunal, however, found negligence on the scooter rider. The High Court distinguished the cited decision on the unique facts and noted the Scene Mahazar cannot reveal the manner of driving at the moment of the accident, while the eye-witness account supported rider negligence. The appeal is rejected; no costs order; the Tribunal’s finding remains intact.

Submissions & Arguments

Contentions of Appellants / Petitioners

The insurer argues that the FIR naming the KSRTC bus driver and the Scene Mahazar indicating the bus’s negligence show the bus driver as primarily liable. It submits that the Tribunal wrongly attributed liability to the scooter rider based on an eye-witness account, which the Mahazar undermines due to its post-accident nature. Relying on Jiju Kuruvilla v. Kunjunjamma Mohan (AIR 2013 SC 2293), the insurer contends that where the driver is named in the FIR, the Tribunal should not fix negligence on another. The insurer also contends the Scene Mahazar’s scope is limited; it records the location and positions after the collision, not the manner in which the driver or rider operated the vehicles. It argues that the documentary evidence and the FIR indicate the KSRTC bus may have contributed to the accident, and that the Tribunal’s emphasis on the eyewitness over the Mahazar contravenes settled principle. Therefore, the insurer requests reversal of the Tribunal’s finding on liability and thus reduction of liability on the insurer, or at least a remand with proper consideration of the bus driver’s role.

Contentions of Respondents

The respondents argue that the scooter rider was negligent, as the evidence before the Tribunal showed overtaking and loss of control leading to the accident. They rely on the eye-witness PW1’s deposition and the Scene Mahazar indicating the scooter rider’s role, along with the KSRTC bus lying on the wrong side after the collision. They contend the cross-examination did not negate the essential facts of the overtake. They argue that the FIR naming the bus driver does not automatically preclude negligence on the scooter rider, because the FIR reflects only one of several possible causal factors; they assert the credibility of the eyewitness and uphold the Tribunal’s reasoning. They maintain that the bus driver’s involvement did not absolve the scooter rider of fault and that the insurer’s challenge cannot override the proven facts; the Tribunal’s findings should be sustained and the appeal dismissed.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Jiju Kuruvilla v. Kunjunjamma MohanAIR 2013 SC 2293DistinguishedThe court distinguished this decision on the facts, noting the case involved reliance on an eye-witness and Scene Mahazar where the accused was already named in the FIR; the present case’s circumstances differ, and the court found it inapplicable.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 13TH DAY OF FEBRUARY 2019 / 24TH MAGHA, 1940** **MACA. No.162 of 2010** **AGAINST THE AWARD IN OP[MV] NO.2340/2004 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE DATED 03-07-2009** ## **APPELLANT/RESPONDENT NO.3:** **THE NEW INDIA ASSURANCE CO. LTD. SILVER PLAZA, I.G.ROAD, KOZHIKODE, REPRESENTED BY ITS MANAGER.** **BY ADV. SRI.A.A.ZIYAD RAHMAN** ## **RESPONDENTS/RESPONDENTS:** |**1**|**SOUDABI**| |---|---| ||**MELAMKUNNTHU HOUSE, NEELESWARAM,**| ||**THAZHEKODE VILLAGE, KODUVLLY VIA, KOZHIKODE.**| |**2**|**MUHAMMED SHAMEEL, S/O.SHOUKATHALI**| ||**AGED 8 YEARS, D.O.B. 07.05.2001, MINOR,**| ||**REPRESENTED BY LEGAL GUARDIAN MOTHER SOUDABI,**| ||**W/O. SHOUKATHALI, MELAMKUNNATHU HOUSE, NEELESWARAM,**| ||**THAZHEKODE VILLAGE, KODUVLLY VIA, KOZHIKODE.**| |**3**|**MUHAMMED SHADIL, S/O.SHOUKATHALI**| ||**AGED 6 YEARS, D.O.B.20.08.2003, MINOR**| ||**REPRESENTED BY LEGAL GUARDIAN MOTHER SOUDABI,**| ||**W/O. SHOUKATHALI, MELAMKUNNATHU HOUSE, NEELESWARAM,**| ||**THAZHEKODE VILLAGE, KODUVLLY VIA, KOZHIKODE.**| |**4**|**SAINABHA, M/O.LATE SHOUKATHALI**| ||**AGED 58 YEARS, W/O.LATE KUNHU MUHAMMED, MELAMKUNNATHU**| ||**HOUSE, NEELESWARAM,**| ||**THAZHEKODE VILLAGE, KODUVLLY VIA, KOZHIKODE.**| |**5**|**P.V.MOIDEEN KOYA, S/O.MAMMED KOYA**| ||**H.NO.4/1318, UPPATH HOUSE, VELLYIL, KOZHIKODE.**| MACA. No.162 of 2010 2 **6 MUHMMED NOWFAL, S/O.AHAMMED MALIYATT HOUSE, VELLAYIL POST, KOZHIKODE. 7 THE GENERAL MANAGER, K.S.R.T.C. THIRUVANANTHAPURAM. 8 C.SUGUNAN, S/O.MUTHORAN CHUNGAM HOUSE, CHOOLAMVAYAL, KUNNAMANGALAM, KOZHIKODE. BY ADVS. SRI.K.H.ASIF SRI.P.C.CHACKO, SC, K.S.R.T.C. SMT.KOCHUMOL KODUVATH SRI.BABU JOSEPH KURUVATHAZHA, SC, K.S.R.T.C. SRI.B.SYED MOHAMMED SRI.C.A.MAJEED SRI.JACOB ABRAHAM SRI.JOY GEORGE, SC, K.S.R.T.C. SRI.P.B.UNNIKRISHNAN NAIR SRI.V.V.NANDAGOPAL NAMBIAR, SC, K.S.R.T.C.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA. No.162 of 2010 3 ## **JUDGMENT** **The appeal is filed by the Insurance Company. The accident, which give rise to the claim, led to the death of the husband of the 1[st] claimant, who was also survived by two minor children and his mother. The accident occurred when the deceased was travelling in a scooter, which met with an accident on its overturning. The pillion rider, the deceased, fell down on the road. A KSRTC bus coming from the opposite direction ran over the pillion rider, thus killing him instantaneously. The Insurance Company had insured the scooter in which the deceased was travelling. The Insurance Company's specific case is that the FIR indicates that the KSRTC bus driver was arrayed as the accused. It is also submitted that the Scene Mahazar shows that the negligence was on the KSRTC bus, since** MACA. No.162 of 2010 4 **it was coming on the wrong side, ie. almost half on the wrong side of the road from the middle. It is also submitted that the Hon'ble Supreme Court had, in** _**Jiju Kuruvilla v. Kunjunjamma Mohan [AIR 2013 SC 2293],**_ **declared that when the accused has been arrayed in the FIR, the Tribunal should not find negligence on any other.** **2.** _**Jiju Kuruvilla**_ **[supra] was a specific case of the Scene Mahazar having been examined to find negligence on another person, who was not arrayed as the accused in the FIR by the Police. In the present case, the circumstances are quite different. It is based on the evidence led before the Tribunal that the Tribunal found negligence on the rider of the scooter. As to reliance placed on the Scene Mahazar in the present case, it has to be** MACA. No.162 of 2010 5 **noticed that the Schene Mahazar only indicated the spot in which the vehicles were found after the accident. The manner in which the vehicles were driven could not have been depicted in the Scene Mahazar, since at the time of the accident, the person, who draws up the Mahazar, was not present. As will be immediately noticed, it is the eye-witness account, which was relied upon by the Tribunal, to find negligence on the driver of the scooter.** **3. The Scene Mahazar indicated that the KSRTC bus, after the accident, was lying on the wrong side of the road. Quite possibly when the vehicle ran over a person; the driver of the bus would have lost his presence of mind and attempted to stop the vehicle as fast as possible. This in all probability is the reason for the bus being positioned on the wrong side of the road. In this context, it is also to be** MACA. No.162 of 2010 6 **noticed that, it is the back right wheel of the KSRTC bus, which ran over the deceased. If there was a head on collision, the front wheel would have run over the deceased.** **4. Now this Court has to look at the evidence as looked into by the Tribunal. PW1 is an eye-witness, who also made the First Information Statement [FIS]. In the FIS, PW1 had specifically stated that he saw a jeep in front of the motor bike, in which the deceased was travelling and the accident occurred when the motor bike was attempting to overtake the jeep. In his deposition before the Tribunal, PW1 had a different story to narrate. It was deposed that the jeep, which was in front of the bike, stopped abruptly, thus causing the bike to topple and the pillion rider was thrown on to the road. Both the versions are slightly different, but point to the negligence of the scooter** MACA. No.162 of 2010 7 **rider. In such circumstances, no reliance can be placed on the cited decision, nor on the Scene Mahazar. The evidence before the Tribunal by the eye-witness clearly indicated negligence on the scooter rider.** **5. Further, it is to be noticed that the claimants also initially filed the application alleging negligence on the scooter rider, which later was amended and the KSRTC driver was alleged to have caused the accident.** **6. Considering the overall circumstances** **as also the evidence as recorded by the Tribunal, this Court is of the opinion that the appeal cannot be entertained.** **The appeal will stand rejected. It has to be observed that the question dealt with in the appeal is confined to the aspect of negligence and resultant liability. No order as** MACA. No.162 of 2010 8 ## **to costs in the appeal.** **Sd/-** **K. VINOD CHANDRAN JUDGE** **sp/15/02/19** **//True Copy// P.A. To Judge**