SANTHA KUMARI AMMA & ANJALI T. PILLAI v. LALY M., JOHNSON, THARA T.PILLAI and THE MANAGER, ICICI LOMBARD - GENERAL INSURANCE COMPANY LTD.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 6[TH] DAY OF FEBRUARY 2023 / 17TH MAGHA, 1944 ``` ## `MACA NO. 547 OF 2020` ``` (AGAINST THE AWARD DATED 12.02.2019 IN OP(MV) 1433/2011 ON THE FILE OF ADDL. DISTRICT JUDGE & MACT – III, PATHANAMTHITTA) ``` ## `APPELLANTS/PETITIONERS 1 & 2:` - `1 SANTHA KUMARI AMMA, AGED 57 YEARS, W/O.THANKAPPAN PILLAI, THARA NIVAS, KODUMON P.O., KODUMON VILLAGE, PATHANAMTHITTA, PIN -691 555.` - `2 ANJALI T.PILLAI, AGED 26 YEARS, D/O.SANTHA KUMARI AMMA, THARA NIVAS, KODUMON P.O., KODUMON VILLAGE, PATHANAMTHITTA, PIN - 691 555. BY ADVS.T.K.KOSHY SRI.SABU I.KOSHY` ## `RESPONDENTS/RESPONDENTS 1,2,4 & ADDL.5:` - `1 LALY M., W/O.JOHNSON, KOTTAMPALLIL, NEAR NOORNADU TEMPLE, PALAMEL, ALLEPPEY, PIN - 690 504.` - `2 JOHNSON, S/O.GEORGE, KIZHAKKETHARA THEKKETHIL, THATTAKKADU, NOORNADU P.O., MAVELIKAKARA, PIN – 695504.` - `3 THARA T.PILLAI, PUTHUSSERIL VEEDU, KODUMON, ANGADICKAL SOUTH P.O., ADOOR, PIN - 691 555.` - `4 THE MANAGER, ICICI LOMBARD - GENERAL INSURANCE COMPANY LTD., COCHIN, PIN - 682 031.` ``` BY ADVS.RISANI V.V. R.AJITH KUMAR (128/84) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 547 OF 2020 ``` ``` -2- ``` ## `JUDGMENT` ``` The appellants and the 3[rd] respondent are the petitioners and the 4[th] respondent respectively, in OP(MV)No.1433/2011 on the files of the ``` ``` “Additional District Judge and Motor Accidents – ClaimsTribunalIII”,Pathanamthitta ``` ``` (‘Tribunal’, for short). ``` ``` 2.As per the appellants, late Thankappan ``` ``` Pillai - who was the husband of the first among ``` ``` them - was involved in a motor vehicle accident, ``` ``` caused on account of the rash and negligent ``` ``` driving of the 2[nd] respondent, which finally led to his unfortunate death; and therefore, that ``` ``` they preferred the aforesaid Original Petition ``` ``` before the Tribunal for compensation. ``` ``` 3.The appellants say that, however, the ``` ``` Tribunal, on a wrong appreciation of the facts ``` ``` and evidence on record, dismissed the Original ``` ``` Petition, holding that late Thankappan Pillai ``` ``` MACA NO. 547 OF 2020 ``` ``` -3- ``` ``` was solely responsible for the accident and that ``` ``` no negligence can be cast upon the 2[nd] respondent. They impugn this finding of the Tribunal, asserting that it goes contrary to the depositions and evidence adduced by them; and thus pray that same be set aside. ``` ``` 4.Sri.R.Ajith Kumar Varma – learned ``` ``` Standing Counsel appearing for the “ICIC Lombard – General Insurance Company Limited” (‘Insurance Company’, for short), in response to the afore submissions of Sri.T.K.Koshy – learned counsel ``` ``` for the appellants, submitted that the Tribunal has not erred at all, because it correctly relied upon Exts.A1 to A4 - being the copies of ``` ``` the FIR, FIS, Scene Mahazar and the Reports of ``` ``` the Motor Vehicle Inspector, with respect to the crime that was registered consequent to the accident in question - to conclude that late ``` ``` Thankappan Pillai had driven his car into the ``` ``` MACA NO. 547 OF 2020 ``` ``` -4- ``` ``` wrong side of the road, thus causing collision between the two vehicles. He argued that, in the absence of any evidence to the contrary, the Tribunal could have done nothing more than to dismiss the Original Petition. ``` ``` 5.In reply, Sri.T.K.Koshy – learned ``` ``` counsel for the appellants, pointed out that the ``` ``` Tribunal has egregiously erred in not relying upon Ext.A5 – which is the copy of the ``` ``` Chargesheet in the same crime - prepared by the ``` ``` Police subsequent to the earlier “Refer Report”, ``` ``` in which, it has been conclusively found that 2[nd] respondent was negligent in driving his ``` ``` vehicle. He pointed out that the only reason why ``` ``` the Tribunal has refused to accept Ext.A5 is ``` ``` because it was the result of a re-investigation conducted by the Police, allegedly without the permission of any Court. He argued that this finding itself is wrong because Ext.A5 would ``` ``` MACA NO. 547 OF 2020 ``` ``` -5- ``` ``` show to the contrary. ``` ``` 6.As an alternative plea, Sri.T.K.Koshy submitted that, even going by the evidence on record, since there is at least a preponderance of possibility of the accident having been caused by the 2[nd]respondent, additional opportunity ought to have been given to his clients to lead evidence, including by citing ``` ``` witnesses, who had seen the accident. ``` ``` 7.I notice from the files that respondents 1 and 2 have not appeared in spite of service of ``` ``` notice - which has been completed through paper ``` ``` publication. However, since the Policy is admitted by the 4[th] respondent – Insurance ``` ``` Company, I do not think that their absence would be of any consequence. ``` ``` 8.I have gone through the materials and ``` ``` evidence available on record, which have been handed over across the Bar by the learned ``` ``` MACA NO. 547 OF 2020 ``` ``` -6- ``` ``` counsel for the partieswith specific consent ``` ``` that this Court can act upon it without dispute. ``` ``` 9.As rightly argued by the appellants, the ``` ``` learned Tribunal has relied upon the “Refer Report” settled by the Police consequent to the earlier investigation, but has refused to accept or to attach any credibility to Ext.A5 – which ``` ``` is the Chargesheet in the same crime, settled by ``` ``` the Police after a re-investigation. The sole ``` ``` reason cited by the Tribunal is that Ext.A5 has ``` ``` been filed by the Police without any orders ``` ``` having been obtained from a “Higher Court”. ``` ``` 10.It is relevant that, while concluding as ``` ``` the Tribunal has done in the impugned Award, it ``` ``` has given great amount of reliance on Ext.A2 Scene Mahazar and Exts.A3 and A4 Reports of the Motor Vehicle Inspector. However, the argument of the appellants that, as per the ratio in Jiju Kuruvila and Others v. Kunjujamma Mohan and ``` ``` MACA NO. 547 OF 2020 ``` ``` -7- ``` ``` others[2013 ACJ 2141], these documents cannot have primacy over the Police Investigation Report, had not been touched upon or answered. The contention that, such documents are not ``` ``` conclusive, certainly ought to have been considered by the Tribunal; as also the plea of the appellants that they should have been given ``` ``` an opportunity of leading additional evidence. ``` ``` 11.I am, therefore, of the firm view that ``` ``` the matter will require to be remanded to the ``` ``` Tribunal for a fresh consideration; and I record ``` ``` that this has not been opposed by the learned Standing Counsel for the Insurance Company, who, however, pleaded that his client also be ``` ``` reserved necessary opportunities during such ``` ``` course. ``` ``` In the afore circumstances, and without ``` ``` entering into the merits of this matter in any manner, I allow this Appeal and set aside the ``` ``` MACA NO. 547 OF 2020 ``` **==> picture [22 x 9] intentionally omitted <==** ``` Award of Tribunal; with a consequential direction to reconsider OP(MV) No.1433/2011, after affording necessary opportunities of hearing and of leading additional evidence to both sides; thus to culminate in a fresh order, as expeditiously as is possible, but not later than eight months from the date of receipt of a copy of this judgment. ``` ``` This appeal is thus allowed; however, ``` ``` without making any order as to costs. ``` ``` Sd/- ``` ## `DEVAN RAMACHANDRAN` ``` JUDGE ``` ``` akv ```