N.S. Sabitha and others v. George Joseph and others

**MACA NOs. 498/2010 & 1917/2010** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 28[TH] DAY OF JULY 2021 / 6TH SRAVANA, 1943 MACA NO. 498 OF 2010** ## **AGAINST THE JUDGMENT IN OPMV 323/2002 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL ,ERNAKULAM** ## **APPELLANTS/PETITIONERS:** 1 N.S. SABITHA, AGED 35 YEARS W/O.LATE SHERIF RAWTHER. 2 MINOR SHARAFAZ SHERIEF AGED 16 YEARS S/O. -DO3 MINOR SHALICK SHERIEF AGED 9 YEARS S/O. -DO4 MOHAMMED KHAN RAWTHER AGED 69 YEARS (MINOR 2 & 3 ARE REPRESENTED BY THEIR MOTHER, IST APPELLANT) ALL ARE RESIDING AT ALEEMA, MANZIL, PERANDOOR ROAD, ELAMAKKARA, COCHIN-26). BY ADVS. SRI.R.SUDHISH SMT.M.MANJU ## **RESPONDENTS/RESPONDENTS:** 1 GEORGE JOSEPH, S/O.MATHEW JOSEPH, ARAYATH HOUSE, MEMURI P.O., KURUPPUMTHARA. 2 K.N.SASIKUMAR S/O.NARAYANAN KOTTAKKAL HOUSE, EDACOCHIN,, COCHIN – 6. **MACA NOs. 498/2010 & 1917/2010** **2** 3 THE ORIENTAL INSURANCE CO.LTD. REP. BY ITS MANAGER, REGL.OFFICE, GROUND FLOOR,, METRO PALACE, OPP.NORTH RAILWAY STATION,, COCHIN - 18. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.07.2021, ALONG WITH MACA.1917/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NOs. 498/2010 & 1917/2010** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 28[TH] DAY OF JULY 2021 / 6TH SRAVANA, 1943 MACA NO. 1917 OF 2010** **AGAINST THE JUDGMENT IN OPMV 325/2002 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL, ERNAKULAM** ## **APPELLANTS/ADDL.RESPONDENTS 4 TO 6:** 1 N.S.SABITHA, AGED 35 YEARS W/O.LATE SHERIF RAWTHER. 2 MINOR SHARAFAZ SHERIEF, AGED 16 YEARS S/O.DO. 3 MINOR SHALICK SHERIEF, AGED 9 YEARS S/O.DO. DO., (MINOR 2 & 3 ARE REP. BY THEIR MOTHER IST, APPELLANT), AALL ARE R/AT ALEEMA MANZIL,PERANDOOR ROAD,, ELAMAKKARA, COCHIN 26. BY ADVS. SRI.R.SUDHISH SMT.M.MANJU ## **RESPONDENT/PETITIONERS, RESPONDENTS 1 TO 3 AND ADDL.7TH** ## **RESPONDENT:** 1 FATHIMA @ PATHUMU, W/O.LATE ALI 2 ABDUL SALAMSO.LATE ALI. (DELETED) 3 NABEESADO.LATE ALI. 4 RAMLA,D/O.LATE ALI. 5 FATHIMA,D/O.LATE ALI. **MACA NOs. 498/2010 & 1917/2010** **4** - 6 SIDDIQUE,S/O.LATE ALI.(DELETED) - 7 JALEEL, S/O.LATE ALI. - 8 UMMU HABEEBA,D/O.LATE ALI. - 9 SHAKEELA,D/O.LATE ALI. - 10 ANSAR, S/O.LATE ALI. - , ALL ARE RESIDING AT MALIACKAL HOUSE, PORATHUR PO,VIA B.P.ANGADI,TIRUR-2. - 11 GEORGE JOSEPH,S/O.MATHEW JOSEPH ARAYATH HOUSE, MEMURI PO, KURUPPAMTHARA. - 12 K.N.SASIKUMAR,S/O.NARAYANAN KOTTAKKAL HOUSE,EDACOCHIN,COCHIN-6. - 13 THE ORIENTAL INSURANCE CO.LTD. REP.BY ITS MANAGER,REGL.OFFICE,GROUND FLOOR,, METRO PALACE OPP.NORTH RAILWAY STATION,COCHIN-18. - 14 NATIONAL INSURANCE CO.LTD. BY ITS BRANCH MANAGER, SHALIMAR CHAMBERS, P.T.JACOB ROAD, THOPPUMPADY,PIN 682 005 RESPONDENTS 2,6 AND 10 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER THE ORDER DATED 7.4.2021 IN I.A NO.1/2019 IN MACA 1917/2010. BY ADVS. SRI.A.N.PREMLAL SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. SMT.SARAH SALVY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.07.2021, ALONG WITH MACA.498/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NOs. 498/2010 & 1917/2010** **5** ## **COMMON JUDGMENT** As these appeals arise out of the common award in O.P (MV) Nos.323/2002 and 325/2002 of the Motor Accidents Claims Tribunal, Ernakulam and between the same parties, the appeals are being disposed of by this common judgment. The parties are, for the sake of convenience, referred to their status in the claim petitions. ## **O.P (MV)No.323/2002** 2. O.P(MV)No.323/2002 was filed by the legal representatives of Sherief Rawther (deceased) under Section 166 of the Motor Vehicles Act 1988(for brevity referred to as 'Act') claiming compensation on account of the death of the deceased in a road accident. The petitioners have averred that: on 20.7.2001 at about 1.30 a.m, when the deceased was travelling in a Qualis car bearing Reg. No.KL-7/AE 3378 (car) driven by one **MACA NOs. 498/2010 & 1917/2010** **6** Hakkim and the car was passing through the AlappuzhaErnakulam National Highway, when the car reached infront of the Cherthala Railway Station, a container lorry bearing Reg. No.KL-7/N 581 (lorry) driven by the 2[nd] respondent in a rash manner and at high speed, which was proceeding in front of the car and was attempting to overtake a van, the lorry suddenly applied the brake without giving any proper signal; thus the rear portion of the lorry collided with the car inflicting fatal injuries to the deceased, the driver and another passenger named Shihabudeen. Even though the injured were taken taken to the T.D.Medical College Hospital, Alappuzha, they succumbed to the injuries on the same day. The petitioners were the dependents of the deceased. The lorry was owned by the 1[st] respondent and was insured with the 3[rd] respondent. The deceased was a businessman and earning a monthly income of Rs.10,000/-. The petitioners claimed an amount of Rs.20,00,000/- as compensation from **MACA NOs. 498/2010 & 1917/2010** **7** the respondents. 3. The respondents 1 and 2 did not contest the proceedings and were set ex parte. 4. The 3[rd ] respondent – insurer of the lorry – filed a written statement admitting that the lorry had a valid insurance coverage. Nevertheless, the 3[rd] respondent denied the cause of the accident; that the Police after investigation had referred the case; that the accident occurred due to the negligence on the part of the driver of the car and that the claim petition was bad for nonjoinder of necessary parties. Hence the claim petition may be dismissed. ## **O.P (MV) 325/2002** 5. O.P(MV) No.323/2002 was filed by the legal representatives of Shihab @ Shihabudeen (deceased) under Section 166 of the Act, claiming compensation on account of the death of deceased in the same road accident as O.P (MV) 323/2002. It was the case of the petitioners that the **MACA NOs. 498/2010 & 1917/2010** **8** deceased while travelling in the same car as that of the deceased in O.P MV) No.323/2002, the accident occurred. The deceased was working as a Salesman in K.B.Garments, Ernakulam and earning a monthly income of Rs.4,000/-. The petitioners claimed a compensation of Rs.5,00,000/from the respondents. However, on the basis of the contention of the 3[rd] respondent in the written statement, the petitioners impleaded the legal representatives of the owner of the car as additional respondents 4 to 6 and the insurer of the car as additional 7[th] respondent. 6. The additional respondents 4 to 6 (the petitioners 1 to 3 in O.P (MV) 323/2202) did not contest the proceedings. The 7[th] respondent filed a written statement refuting the allegations in the claim petition and blamed the 2[nd] respondent for negligence. 7. The Tribunal consolidated and jointly tried the original petitions. 8. The 1[st] petitioner in O.P (MV) No.325/2002 was **MACA NOs. 498/2010 & 1917/2010** **9** examined as PW1, an eye-witness was examined as PW2 and person to prove the salary of Shihab @ Shihabudeen was examined as PW3, and Exts.A1 to A15 were marked in evidence on the side of the petitioners in the two original petitions. 9. The 3[rd] respondent examined RW1, the Investigating Officer who investigated Crime No.250/2001 of the Cherthala Police Station, and marked Exts.B1 to B6 in evidence. 10. The Tribunal, after appreciating the pleadings and materials on record, dismissed O.P (MV) No.323/2002 on the finding that the petitioners have not proved that the accident occurred on account of the negligence of the 2[nd] respondent. Nonetheless, the Tribunal allowed O.P (MV) No.325/2002 and awarded an amount of Rs.2,11,000/- as compensation to the petitioners to be realised from the additional 7[th] respondent – the insurer of the car. 11. Aggrieved by the dismissal of O.P.(MV) **MACA NOs. 498/2010 & 1917/2010** **10** No.323/2002, the petitioners have filed M.A.C.A No.498/2010 and aggrieved by the findings in O.P(MV) No.325/2002 that the deceased - driver of the car was negligent in causing the accident, the additional respondents 4 to 6 in the said original petition have filed MACA No 1917/2010. 12. Heard Sri.Sudhish.R, the learned counsel appearing for the appellants in the two appeals, Sri.Mathew Jacob, the learned Senior Counsel appearing for the 3[rd] respondent – insurer of the lorry - in MACA No. 498/2010 and the 13[th] respondent in MACA No.1917/2010 and Smt.Sarah Salvy, the learned counsel appearing for the 14[th] respondent – insurer of the car - in MACA No.1917/2010. 13. The questions that arise for consideration in these appeals are: - (i) Whether the impugned award passed by the - Tribunal holding that the appellants have failed to prove **MACA NOs. 498/2010 & 1917/2010** **11** negligence on the part of the 2[nd] respondent is justifiable or not ? - (ii) Whether the dismissal of O.P No.(MV) 323/2002 - and the allowing of O.P (MV) 325/2002 is correct or not? 14. It was the common case of the petitioners in both the original petitions that, on the ill-fated day - 20.7.2001, at about 1.30 a.m., when the car driven by the Hakkim was proceeding on the Alappuzha – Ernakulam National High way with Sherief Rawther and Shihab @ Shihabudeen as passengers, a lorry which was proceeding in-front of the car, driven by the 2[nd] respondent in a rash and negligent manner, attempted to overtake a van, but suddenly applied the brake without giving any proper signal and the rear portion of the lorry collided with the car inflicting fatal injuries to the occupants of the car. 15. In order to substantiate the petitioner's cases, they examined PW1 to PW3. PW1 is none other than the 1[st] petitioner in O.P (MV) No.325/2002, who admittedly has **12** **MACA NOs. 498/2010 & 1917/2010** not seen the incident. PW3 was the person who was examined to prove Ext.A15 salary certificate of Shihab @ Shihabudeen – the deceased involved in O.P (MV) 325/2002. Therefore, the only purported ocular witness was PW2, one Sreekumar. PW2 testified that while he was moving on his motorcycle behind a super-fast bus – which was moving from south to the north – that is in the opposite direction, he witnessed the lorry attempting to overtake a van, but the lorry suddenly moved backwards and hit the car. The Tribunal, who saw the demeanour of the witness, refused to believe his testimony. 16. The learned counsel appearing for the appellants has taken me through the oral testimony of PW2, and I have re-appreciated the same. It is hard to believe the oral testimony of PW2 for more reasons than one. PW2 was admittedly moving on a motorcycle behind a passenger bus in the opposite direction, that too in the wee hours, to be precise at 1.30 a.m, along the National Highway. It was **MACA NOs. 498/2010 & 1917/2010** **13** impossible for him to have got a glimpse of the real incident when all the vehicles were moving at high speed. Even more curious is his statement that when lorry was overtaking a van, it moved backwards and hit the car. How the lorry could move in reverse gear when attempting to overtake a vehicle in front is beyond human comprehension. Also, the lorry did not hit the van in front. Thus, the said testimony of PW2 has only be shunned as interested and unworthy of any credence. Therefore, I totally endorse the finding of the Tribunal in this regard. 17. The 3[rd] respondent - insurer - examined RW1the investigating officer – to corroborate Ext.B6 case diary. The Investigating Officer categorically deposed that the incident was treated as accidental because nobody had witnessed the incident. 18. Furthermore, going by Exts.B4 and B5 AMVI reports read with Ext.B2 scene mahazar, it is proved **MACA NOs. 498/2010 & 1917/2010** **14** beyond any semblance of doubt that the left side portion of the car hit on the right side rear portion of the lorry causing extensive damage to both the vehicles. 19. On the basis of Ext.B2 scene mahazar and Exts. B4 and B5 AMVI reports read with Ext.B3 final report, which have been corroborated by RW,1 it is only to be accepted that the accident occurred on account of the negligence of the driver of the car who hit on the rear portion of the lorry, for which negligence cannot be attributed on the 2[nd] respondent. 20. Even more interesting is the fact that the petitioners 1 to 3 in O.P (MV) No.323/2002, who were the additional respondents 4 to 6 in O.P (MV) No.325/2002, did not dispute the fact that the accident had happened due to the negligence of the car driver. Accordingly, the Tribunal held that the driver of the car was negligent and the deceased owner of the car vicariously liable and directed the insurer of the car to pay the compensation to the **MACA NOs. 498/2010 & 1917/2010** **15** petitioners in O.P (MV) No.325/2002. It was only when their claim petition was dismissed and the O.P (MV) No.325/2002 was allowed, the petitioners in O.P (MV) No.323/2002 have awaken from their slumber and preferred the appeals. 21. The Hon'ble Supreme Court in **Oriental Insurance Co.Ltd. v. Meena Variyal and others** [AIR 2007 SC 1609] has succinctly laid down the law that in a claim petition filed under Section 166 of the Motor Vehicles Act, it is imperative that the negligence on the part of the driver of the offending vehicle has to be proved. Only if the driver of the vehicle is found negligent, can the owner of the vehicle be held vicariously liable and the insurer be directed to indemnify the loss caused to the owner of the vehicle. The above view has been reiterated by the Hon'ble Supreme Court in **Reshma Kumari v. Madan Mohan [** 2013 (2)KLT 304] **,** wherein it is held in paragraph 11 that while making an application for **MACA NOs. 498/2010 & 1917/2010** **16** compensation under Section 166 of the Act, it is necessary for the claimant to prove negligence on the part of the driver of the vehicle. The burden is on the claimant to establish the negligence on the part of the driver only then the claimant would be entitled for compensation. 22. Following the ratio in the afore-cited decisions and after re-appreciating the entire pleadings and materials on record, particularly Ext.B2 scene mahazar, Exts.B4 and B5 AMVI reports and Ext.B3 final report read with the oral testimony of RW1, I do not find any scrap of material to attribute negligence on the 2[nd] respondent to hold that the 1[st] respondent – the owner of the lorry – vicariously liable to pay compensation and the 3[rd] respondent to indemnify the 1[st] respondent. According to me, the Tribunal has rightly arrived at the conclusion that the petitioners have failed to prove negligence on the part of the respondents in O.P (MV) No.323/2002. **MACA NOs. 498/2010 & 1917/2010** **17** 23. In view of the above findings, I answer Question Nos.(i) and (ii) against the appellants and confirm the findings of the Tribunal in the impugned award. In result, the appeals are dismissed. The parties shall bear their respective costs. ma/28/7/2021 Sd/- **C.S.DIAS, JUDGE** **/True copy/**