Padmavathi (LRs) v. M.G. Gopalakrishnan Kammath and Others (including United India Insurance Co. Ltd.)

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` THURSDAY, THE 2[ND] DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944 ``` ## `MACA NO. 2360 OF 2012` ``` AGAINST THE DISMISSAL OF OP(MV)No.25/2009 VIDE AWARD DATED 23.02.2012 OF MOTOR ACCIDENTS ``` ``` CLAIMS TRIBUNAL,ERNAKULAM ``` ## `APPELLANTS/PETITIONERS:` - `1 PADMAVATHI, AGED 70 YEARS,(EXPIRED) W/O.GOVINDA KAMATH, MAVUNGAL PARAMBIL HOUSE, CHELLANAM P.O, COCHIN-8.` - `2 MINOR ANJU GAYATHRI, AGED 17 YEARS, D/O.GOPALAKRISHNA KAMMATH, REPRESENTED BY NEXT FRIEND AND GUARDIAN, PADMAVATHI, W/O.LATE KRISHNA KAMATH, MAVUNGAL PARAMBIL HOUSE, CHELLANAM P.O, COCHIN-8.(ATTAINED MAJORITY)` - `3 MINOR SOORYA GAYATHRI, AGED 15 YEARS, D/O.LATE GOPALAKRISHNA KAMMATH, REPRESENTED BY NEXT FRIEND AND GUARDIAN PADMAVATHI, W/O.LATE KRISHNA KAMATH, MAVUNGAL PARAMBIL HOUSE, CHELLANAM P.O, COCHIN-8.(ATTAINED MAJORITY)` - `4 MINOR KESAV G.KAMMATH, AGED 11 YEARS, S/O.GOPALAKRISHNA KAMMATH, REPRESENTED BY NEXT FRIEND AND GUARDIAN, PADMAVATHI, W/O.LATE KRISHNA KAMATH, MAVUNGAL PARAMBIL HOUSE, CHELLANAM P.O, COCHIN-8.(REP.BY APPELLANT 2) *APPEALALNTS 2 TO 4 ARE LR’S OF A1. THE FOLLOWING FACTS ARE RECORDED IN THE PARTY ARRAY *APPELLANT NO.1 EXPIRED *APPELLANT 2 TO 4 ARE LEGAL HEIRS OF APPELLANT NO.1 *APPELLANTS 2 TO 3 ATTAINED MAJORITY *APPELLANT NO.4 IS REPRESENTED BY APPELLANT NO.2 AS HIS NEXT FRIEND. THE ABOVE FACTS ARE RECORDED AS PER ORDER DATED 2.2.2023 IN VIEW OF THE MEMO DATED 3.11.2021 BY ADVS.SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH` ## `RESPONDENTS/RESPONDENTS:` ``` 1M.G. GOPALAKRISHNA KAMMATH, S/O.GOVINDA KAMMATH, MAVUNGAL PARAMBIL HOUSE, CHELLANAM P.O, COCHIN-682008. 2M.M.SUDHAKARA KAMMATH @ MANOJ, S/O.MADHAVA KAMMATH, MAVUNGAL PARAMBIL HOUSE, CHELLANAM P.O, COCHIN-682008. ``` - `3 UNITED INDIA INSURANCE COMPANY LTD, BRANCH OFIFCE, P.B NO. 228, BANK OF BARODA BUILDING, PALACE ROAD, MATTANCHERRY, COCHIN-682002.` ``` R1 AND R2 BY ADV.SRI.SUSHANTH.J. R3 BY ADV.SMT.R.REMA ``` ``` R3 BY ADV.SRI.JOHN JOSEPH VETTIKKAD, STANDING COUNSEL ``` ``` THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02.02.2023, THE ``` ``` COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.No.2360 of 2012 ``` ``` 2 ``` ## **`JUDGMENT`** ``` Dated this the 2[nd] day of February, 2023 ``` This appeal is directed against an Award passed by Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) on 23.02.2012 in O.P.(MV) No.25/2009. By virtue of the impugned award the Tribunal has dismissed the Original Petition filed by the petitioners before the Tribunal as OP (MV) No.25/2009. 2. For the sake of clarity, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 to 3 in accordance with their status before the Tribunal. 3. The above petition was filed by the legal representatives and dependents of one Mrs.Jalaja who is the wife of the 1[st] respondent. 2[nd] respondent was the rider of the two wheeler which was allegedly involved in the motor accident. Mrs.Jalaja was allegedly pillion riding in a two wheeler ridden by the 2[nd] respondent, which skidded on the road and caused serious injuries to her. She succumbed to the serious injuries later and therefore claiming for a sum of ``` M.A.C.A.No.2360 of 2012 ``` ``` 3 ``` Rs.10,00,000/- as compensation the above Original Petition was moved before the Tribunal. The owner, rider and insurer of the offending two wheeler were arrayed as respondents 1 to 3 in the above original petition. 4. 1[st] and 2[nd] respondents did not turn up before the Tribunal to contest the Original Petition and therefore declared ex-parte. The 3[rd] respondent filed written statement before the Tribunal admitting insurance coverage for the two wheeler involved in the motor accident. It denied negligence on the part of the rider of the two wheeler and disputed the quantum of compensation claimed for it’s exorbitant nature. The age, occupation and monthly income of the deceased were also disputed. 5. Before the Tribunal, the 1[st] petitioner filed proof affidavit and marked Exts.A1 to A8 in evidence. Permission was obtained by the 3[rd] respondent to defend the claim petition by raising all the defences available under the statute. On appreciation of the evidence, the Tribunal found that the petitioners failed to prove negligence on the part of the rider of ``` M.A.C.A.No.2360 of 2012 ``` ``` 4 ``` the two wheeler and thus, the Original Petition seeking compensation was dismissed. 6. The contention of the learned counsel for the petitioners was that the Tribunal is erred in dismissing the Original Petition seeking compensation. According to her, though the refer report was produced before the Tribunal, petitioners failed to mark that document in evidence. The Tribunal has taken a view that the petitioners failed to prove negligence on the part of the rider of the two wheeler for the reason that the final report was not produced. The learned counsel canvassed for a remand of the case back to the Tribunal, enabling production of the final report there and for a re-consideration of the original petition on it's basis. 7. The learned counsel has also relied on Shajahan U.S. v. K.Sundaresh G.Pai and Another [2019 (3) KHC 412] and Kaushnuma Begum v. New India Assurance Co.Ltd. [2001 (1) KLT 408] to substantiate her contentions. The learned counsel has submitted on the basis of Shajahan U.S. supra that a provision is not there in the Motor Vehicles Act, 1988 (for short ``` M.A.C.A.No.2360 of 2012 ``` ``` 5 ``` the M.V.Act’) directing the claimant in a proceedings under Section 166 to plead and prove negligence on the part of the driver of the vehicle for sustaining a claim for compensation. The learned counsel has also pointed out that the strict liability principle is applicable in the case on hand, since the 3[rd] respondent has taken a contention in the written statement that the accident in question was occurred due to crossing of the road by a dog all on a sudden. 8. The learned counsel for the 3[rd] respondent has contended that the view taken by the Tribunal being correct, interference with the award under challenge is not warranted. 9. Going by the records of the case on hand, it is found that the true copy of the FIR in Crime No.2171/2006 of Kochi City Traffic Police Station is marked in evidence as Ext.A1. True copy of the scene mahazar is also marked in evidence as Ext.A2 and true copy of the post-mortem certificate is available in evidence as Ext.A3. The report of inspection of the two wheeler was also marked in evidence as Ext.A6. It is not indicated from the contents of those documents that the rider of the two ``` M.A.C.A.No.2360 of 2012 ``` ``` 6 ``` wheeler was rash and negligent and thereby caused the accident. Though it was urged vehmentally by the learned counsel that the refer report was produced before the Tribunal, it could not be traced out despite the thorough search made. 10. The claim petition was preferred by the petitioners under Section 166 of the MV Act. It is the mandate of Section 166 that the claimant himself in a case of injury or claimants in the case of death of a victim of motor accident have to plead and prove negligence on the part of the rider/driver of the alleged offending vehicle. What has been stated in Shajahan U.S supra was that if a final report is marked in evidence and the claimant failed to adduce any further evidence to prove the final report, then also a claim petition will sustain and the Tribunal is bound to grant compensation. In the case on hand, the final report is not marked in evidence. Admittedly an FIR was registered but the investigation proceeded on its basis cluminated in filing of a refer report which reports lack of negligence on the part of the rider of the motorcycle in causing the motor accident. The refer report was not made available ``` M.A.C.A.No.2360 of 2012 ``` ``` 7 ``` while evidence was adduced before the Tribunal. It is also not produced in the appeal on hand. Therefore, this Court is in darkness as to the actual cause that resulted in the motor accident. A claim for compensation under Section 166 MV Act cannot rest on a contention raised by the respondent in it’s written statement filed in the Original Petition that a dog crossed the road ahead the moving motorcycle all on a sudden and caused the motor accident. The petitioners’ specific averment in the Original Petition was that the accident was occurred due to the rash and negligent riding of the two wheeler by it's rider who is none other than the 2[nd] respondent. Therefore it is the burden of the claimant to establish negligence on the part of the 2[nd] respondent. In the case on hand the claimants failed to adduce cogent and reliable evidence to establish it’s allegation in the Original Petition that the motor accident was occurred due to the rash and negligent riding of the motorcycle by it’s rider. The Tribunal has correctly taken such a view and found that the claim for compensation is defeated. Accordingly it dismissed the Original Petition seeking ``` M.A.C.A.No.2360 of 2012 ``` ``` 8 ``` compensation. Interference with the award under challenge is not required. Strict liability principle propounded in Rylands v. Fletcher [ (1868) L.R.3 HL.330 ] cannot be applied in the case on hand as the factual scenario there is totally different from the one in the case on hand. Therefore, the dictum in Kaushnuma Begum supra is also not applicable in the case on hand. MACA fails for the reasons and is dismissed. Sd/- **MARY JOSEPH** **JUDGE** MJL