Ouseph v. Jayasree Saju and United India Insurance Co. Ltd

1 MACA No.3965 of 2019 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 24[TH] DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943 MACA NO. 3965 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OPMV 683/2015 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,PERUMBAVOOR** ## **APPELLANT/S:** OUSEPH AGED 68 YEARS S/O. OUSEPH, THARYAKKU PUTHUSSERY HOUSE, PIRAROOR P.O, KALADY, ERNAKULAM DISTRICT, PIN 683574 BY ADV DINESH MATHEW J.MURICKEN ## **RESPONDENT/S:** 1 JAYASREE SAJU AGED 44 YEARS W/O. SAJU, THOOMBAYIL HOUSE, PERUMATTOM, OKKAL P.O, ERNAKULAM DISTRICT, PIN 683550 2 UNITED INDIA INSURANCE CO.LTD, K.G TOWERS, ANGAMALI P.O, ERNAKULAM DISTRICT, PIN 683572 BY ADVS. SANJANA R.NAIR -R1 SRI.P.K.MANOJKUMAR - R2 SMT.SAROGINI, GOVERNMENT PLEADER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 MACA No.3965 of 2019 ## **C.S.DIAS, J.** ## **====================== MACA No.3965 of 2019** ## **====================== Dated this the 24[th] day of February, 2022.** ## **JUDGMENT** The appellant was the first respondent in O.P. (MV) No.683/2015 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. The respondents in the appeal were the petitioner and the second respondent in the claim petition. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to her in an accident 15.12.2014. It was her case that, on the above said date, while she was riding a scooter bearing Reg. No.KL-40/B 1843 through the Angamaly-Kalady MC Road, another scooter bearing Reg. No. KL-41/B 3159 3 MACA No.3965 of 2019 (offending scooter), ridden by the first respondent in a rash and negligent manner, hit the scooter of the petitioner. The petitioner fell down and sustained multiple injuries in the accident. She was treated as an inpatient at the Little Flower Hospital, Angamaly. The offending scooter was owned by the first respondent and insured with the second respondent. The petitioner was employed as a Teacher in Sree Narayana Higher Secondary School, Okkal and was drawing a monthly income of Rs.43,984/-. Hence, she claimed a compensation of Rs.46,50,000/- from the respondents, which claim was limited to Rs.15,00,000/-. 3. The first respondent had entered appearance and filed written statement denying the allegations in the claim petition. He contended that the petitioner was travelling pillion on a motorcycle ridden by her husband. Then, the motorcycle met with an accident with another vehicle. On seeing the accident, the first respondent and 4 MACA No.3965 of 2019 other onlookers volunteered and took the petitioner to the hospital. Thereafter, the Kalady Police, to enable the petitioner to get undue compensation, made the first respondent as an accused in the case. Even though the first respondent had filed a complaint before the Superintendent of Police, Aluva Rural, against the false case foisted against him, no action was taken on his complaint. Nonetheless, the offending scooter was insured with the second respondent. Therefore, it was the second respondent who was to indemnify the liability of the first respondent. 4. The second respondent had filed a written statement admitting that the offending scooter had a valid insurance coverage. However, it was stated that the first respondent did not hold a valid driving licence. Hence, the first respondent had violated the insurance policy conditions. Therefore, the second respondent may be exonerated of its liability. 5 MACA No.3965 of 2019 5. The petitioner got herself examined as PW1 and Exts A1 to A16 were marked in evidence. The second respondent examined RW1 and marked Exts B1 to B4 in evidence. The disability certificate of the petitioner was marked as Ext C1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by directing the second respondent to pay the compensation amount and recover it from the first respondent, on the finding that the first respondent had violated the insurance policy conditions because the driving licence produced by the first respondent was a fake document as proved by RW1. 7. Aggrieved by the direction in the impugned award, permitting the second respondent to recover the compensation amount from the first respondent, the first respondent is in appeal. 8. Heard Sri.Dinesh Mathew J.Murikan., the learned 6 MACA No.3965 of 2019 counsel appearing for the appellant/first respondent, Smt.Sanjana R.Nair, the learned counsel appearing for the first respondent/petitioner and Sri.P.K Manoj Kumar, the learned counsel appearing for the second respondent/Insurer on admission of the appeal. 9. The principle grounds of challenge in the memorandum of appeal are: (i) whether the finding of negligence as against the appellant/first respondent is sustainable in law? (ii) whether the quantum of compensation awarded by the Tribunal is reasonable and just? and, (iii) whether the direction in the award permitting the second respondent to pay the compensation amount and recover it from the appellant is correct in law? ## **Ground No.(i)** 10. The specific case of the first respondent/petitioner in the claim petition was that while she was riding on a scooter along the Angamaly – Kalady 7 MACA No.3965 of 2019 MC road, due to the negligent driving of the offending scooter by the first respondent, the accident was caused. The appellant contended that he was not involved in the accident, but had only helped the petitioner to be taken to the Hospital. Actually, he was falsely implicated in the criminal case. Even though he had submitted a complaint before the Superintendent of Police, no action was taken. 11. In order to prove the assertion in the claim petition, the petitioner got herself examined as PW1 and marked Ext A5 charge-sheet filed by the Kalady Police in crime No.121/2015. 12. As per Ext A5 charge-sheet, it was the appellant who was found negligent in causing the accident. 13. A Division Bench of this Court in **New India Assurance Co. Ltd v. Pazhaniammal** [2011 (3) KLT 648] has succinctly held that, prima facie, the production of the charge-sheet is a sufficient evidence of negligence for the purpose of a claim under Section 166 of the Act. 8 MACA No.3965 of 2019 The charge-sheet can be accepted as evidence of negligence against the accused driver. If any party disputes such charge-sheet, the burden is on such party to adduce oral evidence and discredit the charge-sheet. 14. The above legal position has been reiterated by another Division Bench of this Court in **Kolavan v. Salim** [2018 (1) KLT 489] wherein it is held that once chargesheet is filed, the Tribunal will not be justified in finding negligence contrary to the finding in the charge-sheet, without there being any direct or corroborative evidence. 15. In the case at hand, even though the appellant had contended that he was in no way involved in the accident, he did not mount the box and let in any evidence to discredit Ext A5 charge-sheet. 16. In addition to the material, due to the vehement argument of the learned counsel appearing for the appellant that the appellant was falsely implicated in the case, this Court had directed the learned Government 9 MACA No.3965 of 2019 Pleader to obtain instructions as to what had transpired subsequent to Ext A5 charge-sheet. 17. It is bought to the notice of this Court that, the appellant had pleaded guilty to Ext A5 charge-sheet and was convicted and sentenced to pay a fine of Rs.1,500/- on 27.6.2018 in S.T 2437/2015 of the Judicial First Class Magistrate Court, Kalady. Therefore, the contention of the appellant that he was falsely implicated in the above crime can only be accepted with a pinch of salt. The fact that the appellant pleaded guilty to Ext A5 charge sheet and was convicted, proves that he was the person who had caused the accident and his defence is totally frivolous and without any bonafides. Hence, I answer ground No.(i) against the appellant. ## **Ground No.(ii)** 18. The first respondent had stated that she was a Teacher by profession and was earning a monthly income of Rs.43,984/-. To substantiate her contention, she had 10 MACA No.3965 of 2019 produced Ext A15 salary certificate. She also produced Ext A12 leave certificate, to prove that she was on loss of pay for 90 days. 19. Based on Exts A12 and A15, the Tribunal has awarded the first respondent an amount of Rs.1,31,952/towards loss of earnings. 20. Likewise, the disability of the first respondent was assessed by a Medical Board, pursuant to the direction of the Tribunal. As per Ext C1 disability certificate issued by the Medical Board, the first respondent is found to have a functional disability of 15%. On the strength of Ext C1, the Tribunal accepted the functional disability of the first respondent and held that she is entitled to an amount of Rs.1,13,400/- as compensation for loss due to disability. 21. Similarly, the Tribunal has also awarded compensation under the pecuniary and non-pecuniary heads, and has awarded the first respondent a total compensation of Rs.4,01,172/- with interest and cost. 11 MACA No.3965 of 2019 22. On an appreciation of the pleadings and materials on record, I find the compensation awarded to be reasonable and just. Thus, I answer Ground No.(ii) also against the appellant. ## **Ground No.(iii)** 23. Even though the appellant had contended that he had a valid driving licence, the second respondent examined RW1, an Official of the Regional Transport Office, Chennai, who produced Ext B4 letter stating that their office had not issued any driving licence in favour of the appellant. Hence, it was proved that the appellant did not hold a driving licence as on the date of accident. Neither did the appellant dispute the said revelation nor let in any evidence to the contrary. In the above circumstances, there is no error in the Tribunal permitting the second respondent to pay the compensation amount and recover it from the first respondent. Hence, I answer ground No.(iii) also against the appellant. 12 MACA No.3965 of 2019 24. On an overall re-appreciation of the pleadings, materials on record, I do not find any error in the impugned award warranting admission of the appeal. Hence, in exercise of the powers of this Court under Order XLI Rule 11 of the Code of Civil Procedure, I dismiss the appeal at the threshold. The parties shall bear their respective costs. SD/- Sks/24.2.2022 **C.S.DIAS, JUDGE**