IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA WEDNESDAY, THE 19TH DAY OF NOVEMBER 2014/28TH KARTHIKA, 1936
MACA.No. 2093 of 2014 () -------------------------
AGAINST THE AWARD IN OPMV 865/2008 of MACT MUVATTUPUZHA DATED 10-07-2013 APPELLANT(S)/RESPONDENTS 1 & 2: ------------------------------------------------------------
1. RAJAN S/O KESAVAN, KALLEKIPPARAMBIL HOUSE MULAKKULAM VADAKKEKARA KARA, PIRAVOM VILLAGE MUVATTUPUZHA TALUK
2. SASIDHARAN, AGED 58 YEARS S/O KUNJU, MANGATTIL HOUSE, ELANJI WEST ELANJI P.O BY ADVS.SRI.K.PAUL KURIAKOSE SRI.ELDO KURIAKOSE
RESPONDENT(S)/PETITIONERS & 3RD RESPONDENT:
-----------------------------------------------------
1. VARGHESE, AGED 48 YEARS S/O ULAHANNAN, PADINJAREKOCHERIYIL HOUSE MULAKKULAM VADAKKEKARA KARA, PIRAVOM VILLAGE MUVATTUPUZHA TALUK
2. THE BRANCH MANAGER, NATIONAL INSURANCE CO. LTD, DAMODAR CHAMBERS STATUE JUNCTION, TRIPUNITHURA R1 BY ADV. SRI.M.S.UNNIKRISHNAN R2 BY ADV. SRI.GEORGE CHERIAN (SR.) R2 BY ADV. SMT.K.S.SANTHI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **T.R.RAMACHANDRAN NAIR & P.V. ASHA, JJ.**
**- - - - - - - - - - - - - - - - - - - - - - - - - -**
## **M.A.C.A. No.2093 OF 2014**
**- - - - - - - - - - - - - - - - - - - - - - - - - -**
## **DATED THIS THE 19TH DAY OF NOVEMBER, 2014**
## **JUDGMENT**
## Ramachandran Nair, J.
The appellants are aggrieved by the award of the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV) No.865 of 2008. Going by the award, appellant No.2 is found liable to compensate the injured, since the policy of the offending vehicle is a liability only policy and it does not cover the risk of gratuitous passengers.
2. We heard Shri Paul Kuriakose, learned counsel for the appellants, Shri M.S. Unnikrishnan, learned counsel for the claimant and Smt. K.S. Santhi, learned counsel appearing for the insurance company.
3. Shri Paul Kuriakose, learned counsel for the appellants submitted that actually the injured was a pedestrian, which was his case also before the Police. The first appellant was driving autorickshaw bearing registration No.KL-5/G 2159 on the date of accident, viz. on 14.1.2007 at 10.30 a.m. Through Kocherithazham-Chemmanamkunnu public road. The claimant/first respondent herein was walking through the said road from
MACA No.2093/2014
-2-
north to south. A jeep was going in front of the autorickshaw. The first respondent, in a negligent and reckless manner, abruptly crossed the road after the jeep passed him, without noticing the autorickshaw which was coming behind the jeep. When the first appellant tried to stop the vehicle suddenly, it lost its control and after hitting the first respondent it overturned.
4. In this context, learned counsel for the appellants relied upon Annexure A1 First Information Report, based on which the Police registered a crime. Therein, it is stated that the accident occurred when the first respondent was walking through the above said road. Thereafter, complaining that the Police is not taking any action, he filed a private complaint before the Judicial First Class Magistrate Court, Vaikom, wherein also he categorically stated that the accident occurred while he was walking through the road. Annexure A2 is the certified copy of the said complaint. The Police filed a final report on 30.4.2007 alleging offences under Sections 279, 337 and 338 I.P.C., against the first appellant, in C.C. No.208/2007. According to the appellants, in the final report, the
MACA No.2093/2014
-3-
circumstances leading to the accident have been clandestinely altered and the first respondent has been described as a passenger in the autorickshaw. Annexure A4 is the judgment in the criminal case. It shows that he had pleaded guilty and was punished for the offences and a fine of Rs.300/- was imposed, but his lawyer had informed that he was acquitted of the charge. It is therefore submitted by the learned counsel for the appellants that since the first respondent had a case that he was a pedestrian, the finding of the Tribunal that the policy is limited, cannot be justified. Actually he is a third party and therefore the liability can be fastened on the insurance company. It is submitted that unfortunately the appellants could not contest the matter properly as the counsel engaged for appearing on their behalf, left India without appearing in the case which fact was not known to the appellants. The autorickshaw is owned and used only for private purpose. Therefore, the vehement argument raised by Shri Paul Kuriakose, learned counsel for the appellants is that the matter should be remanded back to the Tribunal for fresh consideration after giving an opportunity to the appellants to adduce evidence.
MACA No.2093/2014
-4-
5. Learned counsel for the claimant, Shri M.S. Unnikrishnan submitted that there is no case for a remand, as the appellants did not contest the matter before the Tribunal. On the evidence, the Tribunal found that the claimant was a passenger. It is submitted that the argument based on Annexure 1 F.I.R. and the private complaint of the party cannot be accepted since after investigation the Police filed a final report as per Annexure 3, where the claimant is shown as a passenger. Appellant No.2 was found guilty also. Therefore, nothing survives in the matter and the liability has been rightly fastened on the registered owner.
6. Learned counsel for the insurance company submitted that the Police records, viz. the final report submitted as per Annexure 3 was rightly relied upon by the Tribunal. No contra evidence was adduced by the appellants. The appellants did not even file their written statement and they remained ex-parte without appearing before the Tribunal. It is therefore submitted that since they have not pleaded the case now argued before this Court, they cannot be heard to say the same after the competent Tribunal has adjudicated the matter finally. The insurance company had raised a
MACA No.2093/2014
-5-
contention that the policy is a liability only policy and the risk of gratuitous passenger is not covered.
7. The Tribunal found on issue Nos.1 and 2 in paragraph 7 that the accident occurred due to the negligence of the first appellant herein. The Tribunal has gone through the final report as well as the judgment in C.C. No.208/2007 dated 30.1.2009 (Annexure 4) which disclosed that the first respondent pleaded guilty and ordered to remit fine amount. It was found by the Tribunal in paragraph 9 of the award that the claimant sustained injuries while he was travelling in the autorickshaw and therefore he was a gratuitous passenger.
8. In a case like this where the appellant did not raise their pleadings before the Tribunal, did not participate in the enquiry and did not even attempt tendering of any evidence before the Tribunal, there is no case for a remand of the matter. Of course, learned counsel submitted, by relying upon the judgment of a Division Bench of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal** (2011 (3) KLT 648) that the Police charge sheet is only a prima facie sufficient evidence of negligence and
MACA No.2093/2014
-6-
when the court feels that charge sheet is collusive, the said question can be examined. The said judgment cannot help them in any manner. Therein, this Court held that “as a general rule it can be accepted that production of charge sheet is prima facie sufficient evidence of negligence for purpose of a claim under Section 166. If any of the parties do not accept such charge sheet, burden must be on such party to adduce evidence.” It was further held that “if the Tribunal feels that charge sheet is collusive, Tribunal can record that charge sheet cannot be accepted and call upon the parties, at any stage, to adduce oral evidence of accident and alleged negligence.” Herein, such a contingency does not arise, according to us.
9. The contentions raised by the appellants are only an after thought after the award went against them. Even the criminal case was not defended by them and based on the charge sheet appellant No.1 was called upon for trial and he had pleaded guilty. Before the Tribunal also, no attempt was made. There is no scope for a remand of the matter by this Court. We do not find that Annexures 1 and 2 will bind the first respondent now, since his information before the Police was subjected to investigation and the Police
MACA No.2093/2014
-7-
found that he was a gratuitous passenger and was not a passenger. When Annexure 3 certified copy of charge sheet is prima facie evidence, going by the decision of this Court in the above judgment, unless and until the same was challenged by the appellants and independent evidence was adduced by them, it has to be accepted.
For all these reasons, we find that no case has been made out for a remand of the matter and there is no case made out for interference of the award also on merits as well as the quantum of compensation. Therefore, the appeal is dismissed. No costs.
## **(T.R.RAMACHANDRAN NAIR, JUDGE)**
## **(P.V. ASHA, JUDGE)**
**kav/**
