P.A. Jayakumar v Murugan and United India Insurance Co Ltd

MACA.Nos.1683/12, 1677/12 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 4[TH] DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945_ ## _MACA NO. 1683 OF 2012_ _AGAINST THE ORDER/JUDGMENT OPMV 363/2006 OF_ _ADDITIONAL .DISTRICT COURT & MOTOR ACCIDENT CLAIMS_ _TRIBUNAL ,THODUPUZHA_ ## _APPELLANT/S:_ _P.A.JAYAKUMAR, AGED 43 YEARS, S/O.AYYAPPAN NAIR, PANACHIKKATTU HOUSE CHALAMKODU, MUTHALAKODAM KARA, THODUPUZHA TALUK, IDUKKI DISTRICT._ _BY ADV.SRI.MANSOOR.B.H._ ## _RESPONDENT/S:_ _1 MURUGAN, S/O.SUBRAMANIAN, MUNDACKAL HOUSE, CHILAVU KARA KALAYANTHANI-P.O. KARIMANNOR VILLAGE, THODUPUZHA IDUKKI DISTRICT 685 581._ - _2 UNITED INDIA INSURANCE CO LTD_ _REP.BY THE BRANCH MANAGER, THODUPUZHA BRANCH-685 584._ _BY ADVS.G.CHITRA SRI.P.JACOB MATHEW_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.12.2023, ALONG WITH MACA.1677/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.Nos.1683/12, 1677/12 2 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 4[TH] DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945_ ## _MACA NO. 1677 OF 2012_ _AGAINST THE ORDER/JUDGMENT OPMV 672/2006 OF ADDITIONAL .DISTRICT COURT & MOTOR ACCIDENT CLAIMS_ _TRIBUNAL ,THODUPUZHA_ ## _APPELLANT/PETITIONER:_ _JAYAKUMAR, AGED 43 YEARS S/O.AYYAPPAN NAIR, PANACHIKKATTU HOUSE, CHALAMKODU,MUTHALAKODAM KARA, THODUPUZHA TALUK, IDUKKI DISTRICT._ _BY ADV SRI.MANSOOR.B.H._ ## _RESPONDENTS/RESPONDENTS:_ _1 MURUGAN, S/O.SUBRAMANIAN, MUNDACKAL HOUSE, CHILAVU KARA, KARIMANOOR VILLAGE, THODUPUZHA. IDUKKI DISTRICT-685 581._ _2 V.A.KABEER, S/O.ALIMA VELLAMPARAMBIL HOUSE, SREEMOOLA NAGARAM, ERNAKULAM-683 580._ _3 THE NEW INDIA ASSURANCE CO.LTD., REP.BY THE BRANCH MANAGER, CHENNATTUMATTOM JUNCTION, KATTAPPANA, IDUKKI DISTRICT-685 508._ _BY ADVS. G.CHITRA AMRIN FATHIMA SRI.GEORGE CHERIAN SR. SMT.LATHA SUSAN CHERIAN_ MACA.Nos.1683/12, 1677/12 3 _SMT.K.S.SANTHI M.M.MEERAN(M-207)_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.12.2023, ALONG WITH MACA.1683/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.Nos.1683/12, 1677/12 4 ## **JUDGMENT** **[MACA Nos.1683/2012, 1677/2012]** Both these appeals arose from a common award passed by the Motor Accidents Claims Tribunal, Thodupuzha, in O.P. (MV).No.363 of 2006 and O.P.(MV).No.672 of 2006. The appellant in these appeals was the petitioner in O.P.(MV). No.672 of 2006, which is the subject matter in MACA.No.1677 of 2012, whereas he was the 1st respondent in O.P.(MV). No.363 of 2006, which is the subject matter in MACA.No.1683 of 2012. 2. Both the claim petitions arose from an accident that occurred on 12.12.2005. According to the appellants, the accident occurred when the motorcycle bearing registration No.KL-06 B 5013, ridden by the appellant, was hit by an M80 scooter bearing registration No.KL-07K/9904 ridden by the 1st respondent in O.P.(MV).No.672 of 2006. In the accident, both the riders sustained injuries, and, seeking compensation, the aforesaid claim petitions were submitted. The 3[rd] respondent in O.P(MV). No.672 of 2006 was the insurer of the scooter ridden by the 1[st] respondent therein, and the 2[nd] respondent owned it. MACA.Nos.1683/12, 1677/12 5 The scooter ridden by the appellant was owned by himself and it was insured with the 2[nd] respondent in O.P.(MV).No.363 of 2006. 3. In both the claim petitions, the respective insurance companies have filed written statements, disputing the negligence but admitting the coverage of policy for the respective vehicles. The appellant filed a written statement in O.P.(MV).No.363 of 2006 disputing the negligence on his part as well. Similarly, the 1[st] respondent in O.P.(MV).No.672 of 2006, the rider of the M80 scooter also filed written statement disputing the negligence on his part. 4. The said claim petitions were jointly tried. The evidence consists of Exts.A1 to A19 and the appellant got himself examined as PW1. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the appellant himself and consequently, O.P.NO.672 of 2006 filed by the appellant was dismissed and O.P.(MV).NO.363 of 2006 filed by the claimant therein, the rider of the M80 scooter was allowed to recover an amount of Rs.1,82,400/- with interest at the rate of 7.5% per annum from the insurer of the scooter owned by the petitioner herein, the 2[nd] respondent in O.P. (MV).No.363 of 2006. These appeals were submitted by the MACA.Nos.1683/12, 1677/12 6 appellant challenging both the said awards, wherein he is mainly disputing the finding of the Tribunal on the question of negligence. 5. Heard Sri.B.H.Mansoor, learned counsel for the appellant in both the appeals, Smt.G.Chithra, learned counsel for the 1[st] respondent in both the appeals, Smt.Amrin Fathima, learned counsel for the 2[nd] respondent in M.ACA.No.1677 of 2012 and Sri.P.Jacob Mathew, learned counsel for M/s.United India Insurance Company, insurer of the motorcycle owned by the appellant herein and Latha Susan Cheriyan, learned counsel for M/s.New India Insurance Co.Ltd., the insurer of the M80 scooter. 6. The specific contention raised by the learned counsel for the appellant is that the finding of the Tribunal on the question of negligence is against the evidence adduced. It is pointed out that, the Tribunal mainly arrived at the conclusion after placing reliance upon the police report as well as the scene mahazar. As regards the police report, it was pointed out that, the appellant was already found not guilty by the competent criminal court after the trial and he was accordingly acquitted. It is also pointed out that the scene mahazar is not a legally MACA.Nos.1683/12, 1677/12 7 acceptable document to decide the said question, in the absence of other supporting evidence. Besides the same, it is also contended that the appellant submitted I.A.No.1740 of 2010 in O.P.(MV).No.672 of 2006 for summoning one eye witness, who was shown as CW10 in the final report. Even though a summons was ordered in the said I.A. to the witness shown in the witness list produced along with the said application, the proceedings were completed before the examination of the said witnesses could be materialized. 7. On the other hand, the learned counsel for the 1[st] respondent in both the appeals would oppose the said finding by pointing out that, the Tribunal entered into the finding, holding the appellant responsible for the accident after meticulously appreciating the evidence adduced and the finding of the Tribunal is a probable one. Hence no interference is warranted. The respective insurance companies also supports the said contention. 8. I have carefully gone through the records including the Lower Court Records. Of course, it is true that from the observations made in the award, it is evident that the Tribunal mainly placed reliance upon the final report submitted by the MACA.Nos.1683/12, 1677/12 8 Police, wherein the appellant was implicated as an accused and also the spot of accident as is revealed from the scene mahazar. The reliance was also placed by the Tribunal on the decision rendered by a Division Bench of this Court in **New India Assurance Co.Ltd v, Pazhaniammal [2011 (3) KLT 648].** The observations made by this Court in **Pazhaniyammal (surpa),** are to the effect that the Tribunal can rely upon the finding entered by the Police after conducting the investigation in the absence of any contra evidence. Thus, what was laid down therein is that, in the absence of any contra evidence, the conclusions of the Police can be accepted as prima facie evidence to decide the question of negligence in a proceeding under Section 166 of the Motor Vehicles Act. However, the factual situation in this case is slightly different. The appellant got himself examined as PW1 and filed an application to examine another witness, who was cited as one of the witnesses in the final report submitted by the Police. I have examined the orders passed by the Tribunal in I.A.No.1740 of 2010 in O.P. (MV).No.672 of 2006, which was filed by the appellant for the said purpose. It is seen that the summons were ordered on three occasions, i.e, on 18.11.2011, 23.12.2011 and 20.11.2012 and MACA.Nos.1683/12, 1677/12 9 the matter was ultimately posted on 04.02.2012. On that day, the matter was adjourned to 18.02.2012 as the Tribunal was on leave. No further proceedings were mentioned in respect of the said application thereafter. It is also seen that the Tribunal disposed of all these claims on 23.03.20212 as well. The order sheet in the original petition also has no reference as to the final outcome of the I.A referred above. Thus, it is evident that the Tribunal concluded the proceedings and passed an award without examining the witnesses sought to be summoned by the appellant herein, even though the summons were ordered on the application submitted by the appellant. Thus, it is evident that the appellant was not granted a proper opportunity to establish his case. 9. Another material piece of evidence relied on by the Tribunal for holding the appellant responsible for the accident was the scene mahazar. As far as the acceptability of the scene mahazar is concerned, the Honorable Supreme Court has already held in **Jiju Kuruvila and Others v. Kunjunjamma Mohan and Others [(2013) 9 SCC 166]** that the decision on the question of negligence cannot be arrived at, merely placing reliance upon the scene mahazar. In the above judgment, it was MACA.Nos.1683/12, 1677/12 10 categorically held that the scene mahazar would reveal only the spot of the accident. Most relevant aspects like the speed of the vehicle, traffic at the relevant time and circumstances which led to the accident etc. may not be discernible from the scene mahazar. Therefore, in the absence of any other evidence supporting the contents of the scene mahazar, same as such cannot be accepted. Thus, when taking note of the entire materials placed on record, particularly the denial of opportunity to the appellant to adduce the evidence, I am of the view that, the award passed by the Tribunal to the extent it holds the appellant solely responsible for the accident, is to be set aside and the matter to be remanded back to the Tribunal for considering the said question afresh. It is in the light of the above, these appeals are allowed by setting aside the finding of the Tribunal holding the appellant solely responsible for the accident and the matter is remanded back to the Tribunal for reconsidering the question of negligence. All the parties shall be at liberty to adduce such further evidence as they deem fit for establishing the question of negligence. After giving reasonable opportunity for adducing such evidence to the parties, the Tribunal shall take a fresh MACA.Nos.1683/12, 1677/12 11 decision on the question of negligence and pass appropriate orders in this regard. It is reported that, by this time, the award passed in O.P.(MV).No.363 of 2006 is already satisfied by the 2[nd] respondent Insurance Company therein and therefore, it is clarified that the same shall be subject to the final outcome of the conclusions to be arrived at by the Tribunal. The parties shall appear before the Tribunal on 12.02.2024 and in case any of the parties are not appearing before the Tribunal on that day, notice shall be issued to them. The Tribunal shall take every endeavour to dispose of these claim petitions as expeditiously as possible at any rate within a period of six months from the date of the appearance of all the parties concerned. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/5.12.23