Rajesh G.R. v. Jyothish Kumar T., Ratheesh and Oriental Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` TUESDAY, THE 28[TH] DAY OF MARCH 2023 / 7TH CHAITHRA, 1945 ``` ## **`MACA NO. 100 OF 2010`** ## **`AGAINST THE ORDER/JUDGMENT IN OPMV 269/2003 OF MOTOR`** ## **`ACCIDENT CLAIMS TRIBUNAL, KOLLAM`** ## **`APPELLANT/PETITIONER:`** ``` RAJESH G.R., AGED 38 YEARS, S/O.GOPALAKRISHNAN,VIJAYA VILASOM, NADACKKAL, KALLUVATHUKKAL.P.O. BY ADV SRI.LIJU. M.P ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 JYOTHISH KUMAR T., S/O.THANKAPPAN, JOY NIVAS,VENNIYOOR,NELLIVILA.P.O,, THIRUVANANTHAPURAM.` - `2 RATHEESH, VIJAYA VILASAM, NADACKKAL KALLUVATHUKKAL.P.O, KOLLAM.` - `3 THE DIVISIONAL MANAGER, ORIENTAL INSURANCE CO.LTD., KOLLAM. BY ADVS.SRI.P.JACOB MATHEW SRI.MATHEWS JACOB (SR.)` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP`** ``` FOR HEARING ON 02.11.2022, THE COURT ON 28.03.2023 DELIVERED THE FOLLOWING: ``` MACA No.100 of 2010 -:2:- ## MARY JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 100 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28[th] day of March, 2023 ## JUDGMENT The above appeal was originated from an award passed by Motor Accidents Claims Tribunal, Kollam (for sort ‘the Tribunal’) on 30.06.2009 in OP(MV) No. 269 of 2008. 2. By the impugned award the Tribunal dismissed the above Original Petition and thereby declined to grant compensation in favour of the petitioner. 3. The Original Petition above was filed under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the M.V.Act’). The pleadings raised in the Original Petition was that at about 5.15 p.m. on 02.10.2002, a motorcycle being Registration No.KL-01/Y 2579 in which the petitioner was travelling as pillion rider from Koduvazhannoor to Karatte, hit a pedestrian and in the impact, it overturned. The petitioner who was on the pillion seat of the motorcycle was thrown down and sustained injuries. MACA No.100 of 2010 -:3:- 4. Alleging that the rash and negligent riding of the motorcycle by its rider caused the motor accident in question and raising a claim for Rs.2,50,000/- as compensation the Original Petition above was filed. The registered owner, rider and insurer of the motorcycle were arrayed as respondents 1 to 3 in the above Original Petition. 5. Respondents 1 & 2 were served with summons from the Tribunal in the Original Petition, but they did not turn up to contest and therefore, were declared as ex parte by the Tribunal. 6. The 3[rd] respondent who was also served with summons from the Tribunal filed written statement admitting insurance coverage of the motorcycle by the policy issued by them. It was contended that the Original Petition is not maintainable in law or on facts, that the petitioner himself has caused the motor accident by riding the motorcycle bearing registration No.KL-01/Y 2579 in high speed at the relevant time and he colluded with his brother Mr.Ratheesh, influenced the police and fabricated a false case whereby his brother was chargesheeted for rash and negligent riding of the motorcycle at the relevant time. The case was fabricated with intent to get himself compensated by the MACA No.100 of 2010 -:4:- insurer of the motorcycle, that the motor accident being resulted from the careless riding of the motorcycle by the petitioner who is not entitled to get any amount as compensation from respondents 1 to 3 and that the policy issued for the motorcycle has the coverage under it. 7. An additional written statement was also filed by the 3[rd] respondent in the Original Petition reiterating that the petitioner being the pillion rider in the motorcycle, his risk is not covered under the policy, since additional premium was not collected by the insurer of the vehicle. Accordingly, the Original Petition is sought to be dismissed by the 3[rd] respondent. 8. Petitioner examined himself as PW1 and marked Exts.A1 to A10 in evidence. Respondent No.3 marked the copy of the policy issued for the motorcycle as Ext.B1. The Tribunal appreciated the oral as well as the documentary evidence on record and found that the petitioner himself has caused the motor accident to occur by riding motorcycle bearing registration No.KL-01/Y 2579 in a rash and negligent manner. The Tribunal found merit in the contention raised by the 3[rd] respondent in its written statement that the motorcycle involved in the motor MACA No.100 of 2010 -:5:- accident was ridden on the fateful day, by the petitioner himself and he alone was responsible for the motor accident. According to the 3[rd] respondent the final report was caused to be laid by the petitioner, who was a Civil Police Officer at the relevant time against Mr.Ratheesh, who is none other than his brother by falsely introducing him to the scene, influencing his position and colluding with Mr.Ratheesh. 9. It was argued by Sri.Liju, the learned counsel on behalf of the petitioner that the Tribunal is highly unjustified in discarding the final report marked in evidence in the case on hand as Ext.A2. To fortify his contention, he has relied on Kolavan v. Salim [2018 (1) KLT 489] and New India Assurance Co. Ltd. v. Pazhaniammal [2011(3) KLT 648]. 10. It has been held by a Division Bench of this Court in Kolavan supra that the Tribunal will not be justified in finding negligence contrary to the finding in the chargesheet merely relying on the scene mahazar, in the absence of any evidence against the finding in the chargesheet. In Pazhaniammal supra it was held: MACA No.100 of 2010 -:6:- “ Prima facie, charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunals should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act.” 11. It has come out from the above cases that a chargehseet can be prima facie evidence of negligence of the driver of the vehicle if no other evidence is forthcoming from the materials stand marked in evidence to indicate otherwise. If anything suggestive of collusion of the investigating officer who laid the final report is found from any materials marked to form evidence in the case on hand, the final report will pale into insignificance and is liable to be discarded. 12. In the case on hand, the final report is marked in evidence as Ext.A2. As per Ext.A2, the 2[nd] respondent stands chargesheeted for offences punishable under Sections 279, 337 and 338 IPC. The 3[rd] respondent has contended in the written MACA No.100 of 2010 -:7:- statement filed in the Original Petition seeking compensation that the petitioner was a Civil Police Officer and by influencing the investigating officer, he managed to introduce one Mr.Ratheesh as rider of the motorcycle, who is none other than his brother and caused the final report to be laid against him for the offences stated supra. 13. The petitioner tendered oral evidence as PW1. In the chief affidavit, he had stated categorically in tune with the final report that the motorcycle was ridden at the relevant time By Mr.Ratheesh, his brother and the motor accident was occurred due to his rash and negligent riding. According to him, Mr.Ratheesh was riding the motorcycle in excessive speed and in a careless and negligent manner and thus caused it to hit a pedestrian namely Sunil Kumar, who sustained serious injuries thereby. In cross examination it has come out in evidence that he was working as Civil Police Officer of the Police Station where FIS was lodged by Mr.Sunil Kumar. He has also stated during cross examination that the rider of the motorcycle, his brother had also sustained injuries in the motor accident. But despite the challenge raised against the above aspect, the petitioner did MACA No.100 of 2010 -:8:- not produce any medical documents to establish that his brother as rider of the motorcycle had also sustained injuries in the motor accident. 14. Yet another thing to view the chargesheet with suspicion was that in the crime registered on the basis of the FIS laid by Mr.Sunil Kumar from the hospital, the petitioner himself was alleged as the rider of the motorcycle and not even a whisper was made against the presence of Mr.Ratheesh in the rider seat and rash and negligent riding by him of the motorcycle. It is found from Ext.A6, the accident register cum wound certificate prepared at Sree Uthradom Thirunal Hospital, Thiruvananthapuram whereto the petitioner was transported to immediately after the motor accident that he was accompanied by his father, and not by his brother, Mr.Ratheesh who according to PW1, had also sustained injuries in the motor accident. 15. The above aspects divulged from the documents marked in evidence by the petitioner create doubt on the genuineness of the final report marked in evidence as Ext.A2. The conclusion liable to be drawn from the discussion above was that the petitioner has concocted a false case by substituting MACA No.100 of 2010 -:9:- Mr.Ratheesh, who was his younger brother in his place as the rider of the motorcycle responsible for causing the motor accident. 16. The above factums emanated from cross examination of PW1 and materials marked in the case are only evidence came contrary to the contents of the final report stands marked in evidence as Ext.A2 and relied on by the petitioner as prima facie evidence of negligence of the 2[nd] respondent. 17. The Tribunal has come to the conclusion based on the materials discussed above that the story of the motor accident projected by the petitioner as basis for his claim for compensation is only a false and fabricated one. The finding of the Tribunal is only to be maintained and this Court do so. Appeal fails for the reasons and is dismissed. No order as to costs. Sd/MARY JOSEPH JUDGE ttb