New India Assurance Co. Ltd. v Vineeth S/O Anandan (MACA No. 1895 of 2012) and connected matters

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942** ## **MACA.No.1895 OF 2012** **AGAINST THE AWARD IN OPMV 1520/2005 DATED 22-03-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/3RD RESPONDENT:** **THE NEW INDIA ASSURANCE COMPANY LIMITED PERUMBAVOOR, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G. ROAD, KOCHI -11.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/PETITIONER:** **VINEETH S/O. ANANDAN, THAIKOOTTATHIL HOUSE, KEEZHMADU, ALUVA - 683 101.** **BY ADV.** **SMT.ANUPAMA JOHNY FOR RESPONDENT** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2021, ALONG WITH CO.101/2015, MACA.1822/2012(B), MACA.2343/2012(B), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1895 OF 2012 & Conn.Cases** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942** ## **CO.No.101 OF 2015 IN MACA. 1822/2012** **IN MACA 1822/2012 OF HIGH COURT, FROM THE AWARD DATED 22.03.2012 PASSED IN OP(MV) NO.2128/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMABVOOR** ## **CROSS OBJECTORS (RESPONDENT 1 TO 3 IN MACA NO.1822/2012:** **1 JEEPAUL, AGED 42 YEARS, W/O ANTONY M.L., MALIYECKAL HOUSE, NETTINAMPILLY, MANICKAMAMANGALAM P.O., KALADY VILLAGE, ALUVA TALUK (WIFE OF DECEASED) 2 ANNAKHA MARIA ANTONY, AGED 17 YEARS (MINOR), DOB 16.06.1998, D/O ANTONY M.L., MALIYECKAL HOUSE, NETTINAMPILLY, MANICKAMAMANGALAM P.O., KALADY VILLAGE, ALUVA TALUK REP. BY MOTHER JEEPAUL, W/O ANTONY M.L., JEEPAUL, W/O ANTONY, MALIYECKAL HOUSE, NETTINAMPILLY, MANICKAMAMANGALAM P.O., KALADY VILLAGE, ALUVA TALUK, AS HER GUARDIAN AND NEXT FRIEND (DAUGHTER OF DECEASED ANTONY M.L.) 3 ANOKH M. ANTONY, AGED 14 YEAS, (MINOR) DOB 23.02.2003, S/O ANTONY M.L., MALIYECKAL HOUSE, NETTINAMPILLY, MANICKAMAMANGALAM P.O., KALADY VILLAGE, ALUVA TALUK. REP. BY MOTHER JEEPAUL, W/O ANTONY M.L., JEEPAUL, W/O ANTONY, MALIYECKAL HOUSE, NETTINAMPILLY, MANICKAMAMANGALAM P.O., KALADY VILLAGE, ALUVA TALUK, AS HIS GUARDIAN AND NEXT FRIEND (SON OF DECEASED ANTONY M.L.)** **BY ADVS.** **MACA.No.1895 OF 2012 & Conn.Cases** **3** **SRI.REJI GEORGE SMT.ANUPAMA JOHNY SRI.GOPAKUMAR G. (ALUVA)** **RESPONDENT/APPELLANT IN MACA NO.1822/2012:** **THE NEW INDIA ASSURANCE CO.LTD., PERUMABVOOR, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI - 11** **R1 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.MATHEWS JACOB SR.** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2021, ALONG WITH MACA.1822/2012(B), MACA.1895/2012, MACA.2343/2012(B), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1895 OF 2012 & Conn.Cases** **4** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942** ## **MACA.No.1822 OF 2012** **AGAINST THE AWARD IN OPMV 2128/2005 DATED 22-03-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/3RD RESPONDENT:** **THE NEW INDIA ASSURANCE COMPANY LIMITED PERUMBAVOOR NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G ROAD KOCHI 11** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS:** |**1**|**JEE PAUL**| |---|---| ||**W/O.ANTONY M.I MALIYECKAL HOUSE,**| ||**NETTINAMPILLY,MANICKAMAMANGALAM P.O.,**| ||**KALADY VILLAGE,**| ||**ALUVA TALUK 683120**| |**2**|**ANNAKHA MARIA ANTONY (MINOR)**| ||**MALIYECKAL HOUSE, NETTINAMPILLY,**| ||**MANICKAMAMANGALAM P.O.,**| ||**KALADY VILLAGE.**| ||**ALUVA TALUK 683120**| |**3**|**ANOKH M. ANTONY (MINOR),**| ||**MALIYECKAL HOUSE, NETTINAMPILLY,**| ||**MANICKAMAMANGALAM P.O.,**| ||**KALADY VILLAGE,**| ||**ALUVA TALUK, PIN - 683120**| **(MINOR RESPONDENTS 2 AND 3 ARE REPRESENTED BY THEIR MOTHER AND LEGAL GUARDIAN 1ST RESPONDENT)** **(THE 4TH PETITIONER IS NO MORE AND NO RELIEFS ARE CLAIMED AGAINST RESPONDENTS 1,2 AND 4 TO 6 IN THE** **MACA.No.1895 OF 2012 & Conn.Cases** **5** **ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL)** **R1 BY ADV. SMT.ANUPAMA JOHNY R1 BY ADV. SRI.REJI GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2021, ALONG WITH CO.101/2015, MACA.1895/2012, MACA.2343/2012(B), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1895 OF 2012 & Conn.Cases** **6** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942** ## **MACA.No.2343 OF 2012** **AGAINST THE AWARD IN OPMV 1457/2005 DATED 22-03-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/3RD RESPONDENT:** **THE NEW INDIA ASSURANCE COMPANY LIMITED PERUMABVOOR NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT/PETITIONER:** **SREEVAN S/O.SUPRAN, KULAKKAD COLONY, KEEZHAMADU, ALUVA, PIN 683101.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2021, ALONG WITH CO.101/2015, MACA.1822/2012(B), MACA.1895/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1895 OF 2012 & Conn.Cases** **7** ## **JUDGMENT** **[ MACA.1895/2012, CO.101/2015 IN MACA.1822/2012, MACA.1822/2012, MACA.2343/2012 ]** ## **Dated this the 19th day of March 2021** These appeals are connected and therefore I am disposing these three appeals and cross objection by a common judgment. MACA No.1822/2012 is against the award in O.P.(MV) No.2128/2005 on the file of the Motor Accident Claims Tribunal, Perumbavoor, and it is filed by the 3[rd] respondent - Insurance Company. The claim petition was filed by the legal heirs of the deceased-Antony who died in a motor vehicle accident. The other two appeals are filed by the 3[rd] respondent in O.P.(MV) No. 1520/2005 and 1457/2005, in which the petitioner/claimants are injured in the same accident. The Tribunal considered all the claim petition together and passed a common order. Therefore, I am disposing these appeals also by a common judgment. As I said earlier, all these appeals are filed by the 3[rd] respondent in the above three claim petition. (Hereinafter the parties are mentioned in accordance to their **MACA.No.1895 OF 2012 & Conn.Cases** **8** rank before the Tribunal) 2. The short facts are like this:- On 22.04.2005 at 4.30 p.m. the deceased in O.P.(MV)No.2128/2005 was riding motor cycle bearing Reg.No.KL-01/AH-2425 through AluvaMunnar road from west to east direction. During that time the petitioner in O.P.(MV)No.1520/2005 was riding motor cycle bearing Reg.No.KL-7/AW-8376 with the petitioner in O.P.(MV) No.1457/2005 on pillion seat along the road from the opposite direction i.e., from east to west. At that time the second respondent was driving the offending Maruthi Zen car KEK7874 in front of the motor cycle of petitioner in O.P. (MV)No.1520/2005 in the same direction. When the deceased arrived with motor cycle bearing Reg No.KL-01/AH – 2425 at south Vazhakulam Keenpadi, due to rash and negligent driving of the offending car KEK – 7874 by the 2[nd] respondent, it hit against the motor cycle of the deceased and the deceased lost control and his motor cycle hit at the motor cycle of the petitioner in O.P.(MV)No.1520/2005 and they fell on the road. The deceased also fell on the road and sustained serious head injuries. The petitioners in O.P(MV) No.1457/2005 and O.P. (MV) No.1520/2005 were taken into Carmel hospital, Aluva **MACA.No.1895 OF 2012 & Conn.Cases** **9** and they were admitted there as inpatient. The deceased in O.P(MV) No.2128/2005 was taken to Karothukuzhi Hospital, Aluva and he was given first aid from the hospital and then the deceased was taken to Medical Trust Hospital, Ernakulam. On 23.04.2005 at 1.40 a.m., he succumbed to the injuries. According to the petitioners the accident occurred due to the rash and negligent driving of the offending car KEK-7874 by the second respondent. The first respondent is the owner of the car and third respondent is the insurer. In O.P. (MV)No.2128/2005 the fourth respondent is the owner cum insured cum rider of motor cycle bearing Reg.No.KL-7/AW8376. The said motor cycle was insured with fifth respondent. The sixth respondent is the insurer of motor cycle KL-01/AH2425 ridden by the deceased in that case. According to the petitioners, the respondents are jointly and severally liable to pay compensation to the petitioners. 3. As I said earlier all the three cases were tired together. Exts. A1 to A14 were marked on the side of the petitioners. PW1 to PW3 were examined on the side of the petitioners. Exts. X1 and X1(a) is also marked. After going through the evidence and documents the Tribunal found that **MACA.No.1895 OF 2012 & Conn.Cases** **10** the 2[nd] respondent the driver of the car is negligent and therefore respondents Nos. 1 to 3 are liable to pay the compensation and compensation amount was also fixed. 4. Aggrieved by the findings of the Tribunal fixing negligence on the part of the 2[nd] respondent, the 3[rd] respondent filed these three separate appeals challenging the awards in the three claim petitions. 5. In M.A.C.A. No. 1822/2012, the cross objection is also filed by the claimants for enhancement of compensation. 6. Heard the learned counsel for the appellant and the learned counsel for the respondents/claimants. The learned counsel for the appellant submitted that the deceased in O.P(M.V) No. 2128/2005 is a Police Constable. Therefore, with the collusion of the Police Department, a charge sheet is submitted against the 2[nd] respondent, the driver of the car. The contention of the Insurance Company is that the car is not involved in this case. The learned counsel submitted that the first version to the doctor which is recorded in the Wound Certificate will not show that the car is not involved in the accident. As per the version, two motor cycle is involved in **MACA.No.1895 OF 2012 & Conn.Cases** **11** the accident. Moreover, the learned counsel also submitted that, in the First Information Statement also involvement of car is not mentioned. The learned counsel submitted that the car is produced before the Police during investigation after 50 days. The learned counsel submitted that there is no damage to the car as per the report of AMVI. The learned counsel further submitted that, the other injured has no case to the doctor, at the time of their examination that there is involvement of car in the accident. Therefore, the learned counsel submitted that there may not be any presumption against the 2[nd] respondent and the evidence adduced in these case are not sufficient enough to prove that the 2[nd] respondent is rash and negligent in the accident. 7. The learned counsel for the claimants supported the impugned judgment and submitted that, all the contentions are considered by the tribunal and rejected and there is nothing to interfere with the impugned award. Cross Objectioner in the M.A.C.A. No. 1822/2012 submitted that the quantum of compensation awarded by the Tribunal is too low and that may be enhanced . But the respondent in the cross objection submitted that the Insurance Company is **MACA.No.1895 OF 2012 & Conn.Cases** **12** challenging only the negligence part and therefore the cross objection is not maintainable. The learned counsel relied on the judgment of this Court in _**Sarla Verma & Others v. Delhi Transport Corporation & another [2010 (2) KLT 802].**_ 8. Admittedly, no evidence is adduced by the respondent. The claimants examined PW1 to PW3. Exhibit X1 is the case diary of the criminal case. Admittedly, the car driver who is the 2[nd] respondent in the claim petition is the accused in the criminal case. There is a presumption against Respondent No.2 regarding the negligence, in the light of the judgment of this Court in _**The New India Assurance Co. Ltd vs Pazhaniammal, [2011 (3) KLT 648].**_ The learned counsel is relying on the documents produced by the claimants before the Tribunal. The Tribunal considered each and every contention of the 3[rd] respondent Insurance Company and rejected the same. It will be better to extract the finding of the Tribunal and is extracted below:- _“16. It is true that the petitioner in OP.1457/2005 and OP.1520/2005 went to Carmel Hospital, Aluva for their treatment on the same day. Exts. Al and A4 are their wound certificates respectively. The history and alleged cause of injury stated in their wound certificate is similar._ **MACA.No.1895 OF 2012 & Conn.Cases** **13** _“_ മമമമടമർ സസകകളകൽ മപമകകമമമൾ മവററമരക മമമമടമർ സസകകൾ മകടക _". They were examined by the Casualty Medical Officer of Carmel Hospital, Aluva on 22.4.2005 at 4.45 pm. So the involvement of motor cycle KL-7AW-8376 is admitted. According to third respondent, the involvement of car is not mentioned by them to the doctor. They have no case that the car hit on their motor cycle. So there is no concealment or exaggeration from their side in stating the cause of accident. PWI._ _17. Another contention of third respondent is that a police constable Praveenkuamar had taken the deceased to Medical Trust Hospital. Emakulam. But he was not made a witness in Ext.A12 charge sheet. Nobody has a case that Praveenkuamar was an eye witness to the accident. So there is no meaning in including him in the witness list attached to Ext.A12 charge sheet. So the above contention of the third respondent has no merit._ _18. The most important contention of the third respondent is that the involvement of the car is not mentioned. I have already stated that when the Head Constable arrived at the Medical Trust Hospital, Ernakulam there was nobody who had seen the accident. So the Head Constable obtained a written intimation from the Causality Medical Officer and on the basis of that written intimation, the Sub Inspector has registered the case. From the CD statement of PW2 the involvement of offending car was known to the investigating officer, That statement was recorded on 24.4.2005 and that is appended to ExtA7 FIR. Then there was search for the car. On 11.6.2005 the car was produced by the accused / second respondent before PW3 at Thadiyittaparambu Police Station and he has prepared Ext. Xl(a) body mahazar and the car was taken_ **MACA.No.1895 OF 2012 & Conn.Cases** **14** _into custody. PW2 has given clear and cogent evidence as to how the investigating officer identified the car. There is no reason to disbelieve the evidence of PW3 also. In 2011 KLT 648 the Hon'ble High Court of Kerala held that charge sheet filed by police after due investigation is prima facie sufficient evidence of negligence for the purpose of claim under Section 166 of MV Act. If any one of the parties do not accept such charge sheet and allege that it is a collusive charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced, the Tribunal should give further opportunity to others also to adduce oral evidence and in such a case, the charge sheet will pale into insignificant and dispute will have to be decided on the basis of the evidence. In the instant case, the contention of third respondent is that ExtA12 charge sheet is made on the basis of fabricated facts. The offending car has been dragged into the accident in order to help the legal heirs of deceased Police Constable to obtain compensation. But the third respondent has not adduced any independent evidence to establish their version. On the other hand, the petitioner examined PWs 1 to 3 and marked Ext X1 and X1(a) to fortify their version. The evidence of PWs 1 to 3 corroborates the police records produced by the petitioners. So I find that despite the fact that the third respondent challenged ExtA12 charge sheet, they failed to establish their version by adducing independent evidence. So I find that the version of the petitioners are true and correct. Their version derives ample corroboration from the evidence of PWs 1 to 3 and Exts A7 to A10 and Exts.X1 and X1(a). So the petitioners proved the involvement of the offending car KER-7874 in the accident._ _19. The next question to be decided is whether the_ **MACA.No.1895 OF 2012 & Conn.Cases** **15** _accident occurred due to the rash and negligent driving of the car KER-7874 by the second respondent. The evidence of PWs1 and 2 would show that the car was proceeding in front of motor cycle KL-7/AW-8376 from east to west. The motor cycle KL-01 AH-2425 ridden by deceased Antony along with PW2 on pillion seat came form west to east. From Ext A8 scene mahazar it is understood that the road at that place of accident got width of 6.60 metres. I have already stated that the spot of accident is not located on the basis of measurements of tar end either at the northern side or southern side. But present of blood stains are seen at the sport of accident. As it was a collision of three vehicles, it is not possible to locate the exact spot of accident. The blood stain on the road shows that the deceased fell on the road and sustained head injury. The evidence of PWs 1 and 2 would show that the car was in a reckless speed and hence the second respondent lost control and it hit at the motor cycle of deceased. So it can be concluded that the accident occurred solely due to the rash and negligent driving of the offending car KER 7874 by the 2[nd] respondent. The issue is answered accordingly.”_ 9. I see absolutely no reason to interfere with the above finding. According to me, the claimant proved the case at least through preponderance of probabilities. There is oral evidence supported by documentary evidence. _Prima facie_ , the 2[nd] respondent is negligent. I don't want to interfere with the above finding of the Tribunal. Therefore, the contention of the 3[rd] respondent is rejected and **MACA.No.1895 OF 2012 & Conn.Cases** **16** consequently, the appeal is to be rejected. 10. The learned counsel for the cross objection submitted that the amount awarded by the Tribunal is too low. The Tribunal after going through the entire oral and documentary evidence, granted an amount of Rs.12,42,206/- (Rupees Twelve Lakhs Forty Two Thousand Two Hundred and Six Only). I think it is a just and reasonable compensation. No enhancement is necessary. According to me, the amount awarded by the Tribunal on different heads are a just and reasonable compensation. There is nothing to interfere with the same. Therefore, these cases are disposed of in the following manner:- M.A.C.A. No. 1822 of 2012, C.O. No. 101 of 2015 in M.A.C.A. No. 1822 of 2012, 1895 of 2012 and 2343 of 2012 are dismissed. **Sd/P.V.KUNHIKRISHNAN JUDGE** VPK avs