Rajesh Kumar v Omanakkuttan Pillai and The Oriental Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 7TH DAY OF JULY 2017/16TH ASHADHA, 1939 MACA.No. 1132 of 2012 () ------------------------AGAINST THE AWARD IN OPMV 1727/2007 of I ADDL.MACT,KOLLAM DATED 28-02-2012 APPELLANT/PETITIONER: --------------------------------- RAJESH KUMAR S/O. SUKUMARAPILLAI, AGED 37, MAMPUZHA HOUSE, PERUMPUZHA CHERRY, ELAMPALLOOR VILLAGE, KOLLAM. BY ADVS.SRI.R.KISHORE SRI.ARUN BABU SRI.G.HARIPRASAD RESPONDENTS/RESPONDENTS: -------------------------------------- 1. OMANAKKUTTAN PILLAI S/O. KRISHNA PILLAI, CHAMAVILA VEEDU, VAKKANADU P.O., KOTTARAKKARA-691509. 2. THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE COMPANY LTD., LIC BUILDING, CHINNAKKADA, KOLLAM-691001. R2 BY ADV. SRI.MATHEWS JACOB (SR.) R2 BY ADV. SRI.P.JACOB MATHEW R BY ADV.SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ------------------------------------** ## **M.A.C.A.No.1132 of 2012** **----------------------------------Dated this the 7[th] day of July, 2017** ## **JUDGMENT** ## **Anil K. Narendran, J** This appeal arises out of the award passed by the 1[st] Additional Motor Accidents Claims Tribunal, Kollam dated 28.02.2012 in O.P.(MV)No.1727 of 2007, an application filed by the appellant/claimant under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained in a motor accident alleged to have occurred on 13.03.2007. Going by the averments in the claim petition, when the motorcycle in which the appellant/claimant was travelling reached the place of accident, it fell into a gutter while giving side to a lorry which came from the opposite side. As a result of the accident, he sustained injuries. According to the appellant/claimant, the accident occurred due to circumstances beyond his control. The first respondent, who is the relative of the appellant/claimant, is the owner of the motorcycle, in which he was travelling at the time of accident and the second respondent is its insurer. 2. Before the Tribunal, the first respondent owner of the motorcycle was set ex-parte. The second respondent insurer filed M.A.C.A.No.1132 of 2012 2 written statement contending that the policy issued in respect of the motorcycle in question will not cover the risk of the rider. The appellant/claimant filed private complaint under sub-section (3) of section 156 of the Criminal Procedure Code, 1973 alleging that he was the pillion rider in the motorcycle ridden by the first respondent owner. In the investigation conducted by Police it was found that, at the time of accident the appellant/claimant was riding the motorcycle and accordingly the case was referred. Therefore, the second respondent insurer contended that, the appellant/claimant has approached the Tribunal with _mala fide_ intention. 3. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. 4. After considering the materials on record, the Tribunal arrived at a conclusion that there is absolutely no evidence to prove that the accident occurred as alleged in the claim petition. The appellant/claimant has not produced any police records to prove the accident. In the absence of any evidence to prove negligence on the part of the first respondent owner, he cannot be held liable to pay compensation to the appellant/claimant. Since the first respondent owner cannot be held liable, the second respondent insurer cannot M.A.C.A.No.1132 of 2012 3 be held liable to indemnify the first respondent owner. Accordingly, the Tribunal dismissed the claim petition holding that the appellant/claimant is not entitled to realise compensation from respondents 1 and 2. 5. Feeling aggrieved by the award passed by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. We heard the arguments. 7. The sole issue that arises for consideration in this appeal is as to whether the impugned award passed by the Tribunal dismissing the claim petition filed by the appellant, in the absence of any evidence to prove negligence on the part of the first respondent owner, warrants interference in this appeal. 8. The case putforth by the appellant before the Tribunal was that, when the motorcycle in which he was travelling reached the place of accident, it fell into a gutter while giving side to a lorry which came from the opposite side, and he sustained injuries. According to the appellant, the accident occurred due to circumstances beyond his control. 9. The specific stand taken by the second respondent insurer in the written statement was that, the appellant filed private complaint alleging that he was the pillion rider in the motorcycle M.A.C.A.No.1132 of 2012 4 ridden by the first respondent owner. The investigation conducted by the police revealed that, at the time of accident the appellant was riding the motorcycle and accordingly the case was referred. The insurer has also contended that, the policy issued in respect of the motorcycle in question will not cover the risk of the rider. 10. In N **ew India Assurance Co. Ltd., v. Pazhaniammal** **and others (2011 (3) KHC 595)** a Division Bench of this Court held that, as a general rule it can safely be accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. If anyone 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. In **Khadeeja and others v. Rushdi and another (2016 (3) KLT 400)** , a Division Bench of this Court in which one M.A.C.A.No.1132 of 2012 5 among us (Anil K. Narendran, J) was a member, held that in a claim under Section 166 of the Motor Vehicle Act, for fixing liability on the respondents, who are the owner, driver and insurer of the offending vehicle, it is imperative for the claimants to prove that the accident was caused by the negligence of the driver or the owner of that vehicle. Thus, negligence on the part of the driver or owner of the offending vehicle is a prime consideration in a claim under Section 166 of the Act. Therefore, where the pleadings and the evidence on record on the side of the claimant are absolutely silent on this crucial aspect of the matter, a claim under Section 166 of the Act cannot be sustained. 12. In the instant case, the documents placed on record as Exts.A1 to A4 are only medical records. Ext.A5 is a certificate issued by Indian Army, which would show that the appellant was absent from duty from 25.3.2007 to 13.6.2007, and Ext.A6 is the copy of his driving license. Despite the specific contention taken by the second respondent insurer that, in the investigation conducted by the police it was revealed that at the time of accident the appellant was riding the motorcycle, and he was not the pillion rider as stated in the private complaint filed before police, the appellant has not chosen to produce any records relating to the crime registered by M.A.C.A.No.1132 of 2012 6 the police in connection with the alleged motor accident, like First Information Report, Final Report, etc. For fixing liability on the respondents, who are the owner and insurer respectively of the motorcycle, it was imperative for the appellant to prove before the Tribunal that the accident was caused by the negligence of the owner of that vehicle. In this context, it is apposite to note Ground (c) of the memorandum of appeal, which reads thus; “(c) The lower court erroneously reached a conclusion that there was no evidence to find the negligence of the 1[st] respondent. Even as per the petition the petitioner contended that the accident occurred due to reasons beyond his control and he never alleged that the accident occurred due to the negligence of the 1st respondent.” (underline supplied) 13. It was in the absence of any evidence to prove negligence on the part of the first respondent owner that the Tribunal held that the owner of the motorcycle cannot be held liable to pay compensation to the appellant and accordingly, the second respondent insurer was held not liable to indemnify the first respondent owner. 14. In such circumstances, the finding of the Tribunal that, the appellant/claimant is not entitled to realise any compensation from respondents 1 and 2 is perfectly legal, which warrants no interference in this appeal. M.A.C.A.No.1132 of 2012 7 In the result, this appeal fails and the same is accordingly dismissed. No order as to costs. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** AV /True Copy/ P.A to Judge