## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE C.S.DIAS**
**WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943**
## **MACA.No.2813 OF 2008(A)**
**AGAINST THE AWARD IN OPMV 1689/2004 DATED 08-07-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL MUVATTUPUZHA**
## **APPELLANT/PETITIONER:**
**RAMESH P.V AGED 26 YEARS S/O.VEERANNAN, PUTHUVEETTIL HOUSE, VATTAYAR P.O., ANAVIRATTY VILLAGE, KURISUPARA, IDUKKI DISTRICT, PIN 685 611.**
**BY ADV. SMT.P.P.STELLA**
## **RESPONDENTS/RESPONDENTS:**
**1 LAKSHMANAN S/O VEERANNAN, PUTHUVEETTIL HOUSE, VATTAYAR P.O., ANAVIRATTY VILLAGE, KURISUPARA, IDUKKI DISTRICT, PIN 685 611. 2 THE MANAGER, THE ORIENTAL INSURANCE COMPANY LTD., KOTHAMANGALAM BRANCH, ELENJICKAL PLAZA, CHURCH VIEW JUNCTION, KOTHAMANGALAM, ERNAKULAM DISTRICT.**
**BY ADV.**
**R2 BY ADV. SRI.A.R.GEORGE**
**THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-04-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
## **Dated this the 7th day of April 2021**
The appellant was the petitioner in O.P.(MV) No.1689 of 2004 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. The respondents in the appeal were the respondents in the claim petition.
2. The facts in brief, relevant for the determination in the appeal, are: on 16.07.2004 while the appellant was travelling in an autorickshaw bearing registration No.KL-174828 from Adimali to Kurisupara through Kochi-Madhura road, the 1[st] respondent, the owner/driver of the autorickshaw drove the vehicle in a rash and negligent manner as a result of which the appellant sustained injuries. He underwent treatment as an inpatient and outpatient. The 2[nd] respondent is the insurer of the vehicle. Hence, the appellant is entitled compensation, which he quantified at Rs.1,50,000/-.
3. The 1[st] respondent did not contest the proceedings and was set ex parte. The 2[nd] respondent filed a written statement and an additional written statement, after
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obtaining leave under Section 170 of the Motor Vehicles Act, 1988, inter alia contending that the 1[st] respondent was not involved in the accident. The vehicle was driven by the appellant, who had no valid and effective driving licence. The 1[st] respondent was planted for the purpose of obtaining compensation from the 2[nd] respondent. Hence, the claim petition may be dismissed.
4. The appellant, with leave of the Tribunal, filed a replication.
5. The appellant and a witness were examined as PW1 and PW2 and Exts.A1 to A11 were marked in evidence through them. The 2[nd] respondent examined its Investigating Inspector as RW1 and Exts.B1 and B2 were marked through him.
6. The Tribunal, after analyzing the pleadings and materials on record, dismissed the claim petition finding that the allegations in the claim petition were false.
7. Aggrieved by the dismissal of the claim petition, the petitioner is in appeal.
8. Heard Smt.P.P.Stella, the learned counsel
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appearing for the appellant/petitioner and Sri.A.R.George, the learned counsel appearing for the 2[nd] respondent/Insurance Company.
9. The sole question that emerges for consideration in this appeal is whether the impugned award passed by the Tribunal is correct or not?
10. It was a specific case of the appellant that while he was travelling as a passenger in an autorickshaw, which was driven by the 1[st] respondent, due to the rashness and negligence on the part of the 1[st] respondent, the autorickshaw overturned and the appellant sustained injuries. Ext.A1 is the copy of the FIR that was registered pursuant to the FIS given by the appellant on the following day of the accident.
11. As per Ext.A1, a passenger by name Senthil also sustained injuries in the accident. The appellant was taken to the hospital by his brother, who is none other than the 1[st] respondent and one Kuttan, in another autorickshaw which was travelling behind the vehicle. However, while deposing as PW1, the appellant stated that he was taken to the
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hospital by the 1[st] respondent and two head load workers, who witnessed the accident. Furthermore, in Ext.A3 Wound Certificate, it is stated that it was one Suresh who took the appellant to the hospital because before reaching the hospital the 1[st] respondent – his brother left the scene of occurrence.
12. On the other hand, the RW1, the investigating inspector of the 2[nd] respondent who filed Ext.B1 investigation report, deposed that based on the statements of the father of Senthil, who is referred to in Ext.A1 and another witness, it was found that it was the appellant who was driving the vehicle.
13. The Tribunal, despite the findings of the Police in Ext.A5 charge sheet in Crime No.226 of 2004 came to the conclusion that the case set up by the appellant was false and concocted. In the said circumstances, the Tribunal dismissed the claim petition.
14. On a re-appreciation of the pleadings and materials on record, especially the oral testimonies of PWs 1 and 2 and RW1 read with Ext.B1 investigation report, it is found that
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the appellant has not approached the Tribunal with clean hands. The appellant has taken inconsistent stands in the claim petition and in his oral testimony.
15. The specific case in the claim petition was that the accident occurred due to the negligence on the part of the 1[st] respondent, who is none other than his brother. In Ext.A1 FIR given to the Police, he stated that it was the fellow passenger namely Senthil also sustained an injury and it was his brother and a person named Kuttan who took him to the hospital. Nevertheless, when he gave evidence as PW1, he took a volte face and stated that it was his brother and two other head load workers who took him to the hospital. In Ext.A3, it is seen that it was one Suresh who admitted the appellant to hospital. Then the appellant deposed that his brother had alighted from the autorickshaw midway and Suresh took him to hospital, which is per se unbelievable because no brother would leave his injured sibling in the hands of a stranger.
16. All the above inconsistent stands leads me to the inevitable conclusion that the case set up by the appellant is
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false and concocted. On the contrary, the 2[nd] respondent has proved through RW1 and Ext.B1, that it was the appellant who drove the autorickshaw, which is highly probable.
17. The Division Benches of this Court in **New India Assurance Co.Ltd v. Pazhaniammal** [(2011) (3) KLT 648] and **Kolavan v. Salim** [2018 (1) KLT 489] have held that the charge sheet can be taken as prima facie evidence to substantiate the negligence. However, the onus of proof is on the party against whom the charge sheet is filed to establish by cogent evidence that the charge sheet is incorrect.
18. In the instant case the 2[nd] respondent has shifted the onus of proof by examining RW1 and marking Ext.B1 wherein it shows that it was the appellant who was driving the autorickshaw. In view of the shifting of the onus of proof, according to me, the ratio in **New India Assurance Co.Ltd v. Pazhaniammal** [(2011) (3) KLT 648] and **Kolavan v. Salim** [2018 (1) KLT 489] stands discharged by the 2[nd] respondent. Therefore, I hold that the findings of the Tribunal that the case set up by the appellant is unbelievable
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is only to be accepted. In the light of the aforesaid findings, I uphold the impugned award and find no error in the impugned award warranting interference by this Court.
In the result, the appeal is devoid of any merit and is hence, dismissed.
**Sd/C.S.DIAS JUDGE**
**SCS**
