High Court of KeralaSingle Judge2021-03-12Appeal allowed; award set aside; remand to MACT...

Shaji v. Benny K, Bilji Jose, United India Insurance Co. Ltd.

Case / Petition Number:MACA.No.1161 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2021-03-12
Court Decision / Holding: The award dated 05.02.2011 in O.P.(M.V.) No. 1200/2007 is set aside. The IInd Additional Motor Accidents Claims Tribunal, Kozhikode is directed to restore O.P.(M.V) No.1200/2007 and dispose the same in accordance with law, after giving opportunity to both sides to adduce further evidence, if any. Tribunal will dispose of the claim petition as expeditiously as possible, within six months from the date of receipt of copy of the judgment. The parties will appear before the Tribunal on 12.04.2021.
Final Disposition: Appeal allowed; award set aside; remand to MACT for fresh disposal with opportunity to adduce further evidence; six-month time limit

Parties to the Case

Appellants / Petitioners

Shaji, aged 41 years, s/o Joseph

Respondents

Benny K, s/o Kuri an (owner of motorcycle KL-11-W-8540)
Bilji Jose, s/o Jose (driver of motorcycle KL-11-W-8540)
United India Insurance Co. Ltd., (insurer of motorcycle KL-11-W-8540)

Legal Representation & Advocates

Counsels for Petitioners

• K. M. Jamaludheen
• Smt. Latha Prabhakaran

Counsels for Respondents

• Sri. Thomas Mathew Nellimoottil, SC

Case Synopsis & Summary

This High Court of Kerala, in MACA No.1161 of 2011, heard an appeal by Shaji challenging an award of the II Additional Motor Accidents Claims Tribunal, Kozhikode, which had dismissed OP(MV) 1200/2007 for lack of proof of a motor accident. The record shows that on 25 December 2006, around 7:45 p.m., the appellant, then standing near a bus stop, was allegedly struck by a motorcycle KL-11-W-8540 ridden by the 2nd respondent in a rash and negligent manner; he sustained injuries and was treated at Santhi Hospital and Medical College Hospital, Kozhikode. The petition under Section 166 of the Motor Vehicles Act claimed compensation for injuries; exhibits A1–A9 were marked; PW1 testified; Exhibit C1 is a disability certificate. The tribunal found the case unbelievable and rejected the claim, holding no motor accident occurred. The appellant argued that police records—a registered FIR (A1) and final report (A3) under IPC sections 279 and 338—establish negligence; the rider pleaded guilty before the Magistrate; reliance was placed on a Kerala High Court decision in Pazhaniammal to presume rashness. The respondents contended that the tribunal’s conclusion was sound and supported by the evidence and witness demeanor. The High Court, after considering the arguments, held that the tribunal erred and that the matter should be considered afresh with opportunity for additional evidence, without a de novo trial. The award was set aside, and remand directions were issued with a six-month timeline.

Provisions of Law Cited

Section 166 of the Motor Vehicles ActSections 279 and 338 of the IPC

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the accident occurred as alleged; police records—FIR Exhibit A1 and final report Exhibit A3—show that proceedings were initiated against the rider under IPC 279 and 338; the rider pleaded guilty; these materials establish negligence on the part of the 2nd respondent. The appellant contends that the Tribunal's conclusion that no motor accident occurred is erroneous and based on misreading of the evidence, including the testimony of PW1. Relying on The New India Assurance Co. Ltd v. Pazhaniammal (cited), it was submitted that there is a well–established presumption of rashness on the part of the rider in road traffic injuries where police records exist; on that basis, the burden shifts, requiring the respondents to prove otherwise. The appellant contends that the matter should be remanded for reconsideration after allowing both sides to adduce further evidence, but not for a de novo trial. The appellant seeks restoration of OP(MV) 1200/2007 and disposal in accordance with law with opportunity to present additional evidence, so that the tribunal can balance the evidence and determine liability and quantum properly.

Contentions of Respondents

The respondents contend that the Tribunal's assessment was thorough, based on the entire record, including the demeanour of the witnesses; there is no corroborative evidence of a motor accident, and the police reports do not compel a conclusion of negligence on the part of the rider; the appellant's reliance on Pazhaniammal is misplaced. They submit that the dismissal by the Tribunal was justified and should not be undone by mere presumption; even if there was a police report, it does not by itself prove negligence; any remand must be limited to precise issues with fresh evidence, and the court should not direct a de novo retrial; counsel for the respondents argued that the prosecution record indicates the petition was based on a false claim, and that the proper course would be to dismiss, unless there is new evidence.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
The New India Assurance Co. Ltd v. Pazhaniammal	2011 (3) KLT 648	Mentioned Only	Cited by the appellant to argue a presumption of rashness; the High Court did not adopt this principle in its final order, instead remanding for fresh evidence.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942** ## **MACA.No.1161 OF 2011** **AGAINST THE AWARD IN OPMV 1200/2007 DATED 05-02-2011 OF II ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , KOZHIKODE** ## **APPELLANT/PETITIONER:** **SHAJI AGED 41 YEARS S/O.JOSEPH, RESIDING AT KANIYANKUNNEL HOUSE,, MARAMCHATTY, VIA KOODARANHI,, KOZHIKODE DISTRICT. BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN** ## **RESPONDENT/S:** **1 BENNY.K AGE NOT KNOWN, S/O KURIAN RESIDING AT 7/225,, THRIKKANAGERIL HOUSE, (PO) KOOMBARA,, KOZHIKODE DISTRICT-673 604 (OWNER OF THE, MOTORCYCLE BEARING REGN.NO.KL-11-W-8540). 2 BILJI JOSE S/O.JOSE AGED 28 YEARS, RESIDING AT KAVUNGUM THOTTATHIL HOUSE, MEEMUTTY, KOOMBARA, KOZHIKODE DISTRICT-, 673 604 (DRIVER OF THE MOTORCYCLE BEARING REGN.NO.KL-11-W-8540). 3 UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE, VELIMANNA BUILDING,,** MACA.No.1161 OF 2011 2 **MAIN ROAD, THAMARASSERY, KOZHIKODE DISTRICT-, 673 573, (INSURER OF THE MOTORCYCLE BEARING REGN.NO.KL-11-W-8540).** ## **R3 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1161 OF 2011 3 ## **`P.V.KUNHIKRISHNAN, J`** ## **`--------------------------------------M.A.C.A. No. 1161 of 2011 ------------------------------------------`** `Dated this the 12[th] day of March 2021` ## **`JUDGMENT`** ``` This appeal is filed against the award in O.P(M.V.) No. 1200/2007 on the file of the IInd Additional Motor ``` ``` Accidents Claims Tribunal, Kozhikode. Appellant is the petitioner in the claim petition. The above claim petition was filed under Section 166 of the Motor Vehicles Act claiming compensation for the injuries sustained to the petitioner in a road traffic accident. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal) ``` ``` 2. The short facts are like this:- On 25.12.2006, at about 7.45 p.m, While the petitioner was standing on the extreme side of Thiruvambadi-Ottapoyil Bus Stop, a ``` MACA.No.1161 OF 2011 4 ``` motor cycle bearing Registration No. KL-11-W-8540 ridden by the 2[nd] respondent in a rash and negligent manner, hit against the petitioner. He sustained injuries and was taken to Santhi Hospital, Omassery and then to Medical College Hospital, Kozhikode. According to the appellant/petitioner, the accident occurred due to the negligence of the rider of the motor cycle. First respondent is the owner, 2[nd] respondent is the rider and 3[rd] respondent is the insurer of the motor cycle. According to the petitioner, the respondents are jointly and severally liable to pay the compensation. ``` ``` 3. To substantiate the case, Exhibit A1 to A9 were marked and petitioner himself was examined as PW1. Exhibit C1 is the disability certificate. No evidence is adduced by the respondents. After going through the evidence and documents, the Tribunal found that the ``` MACA.No.1161 OF 2011 5 ``` case of the appellant cannot be believed and no motor accident happened as alleged by the appellant. Accordingly, this claim petition is dismissed. Aggrieved by the above award, this appeal is filed. ``` `4. Heard the learned counsel for the appellant and` `the learned counsel for the 3[rd] respondent.` `5. The learned counsel for the appellant submitted` `that the Police registered a case against the 1[st] respondent and a final report was also filed against the` ``` 2[nd] respondent. The learned counsel relied on the judgment of this court inThe New India Assurance Co. Ltd vs Pazhaniammal, [2011 (3) KLT 648] and submitted that it is to be presumed that the 2[nd] respondent is rash and negligent. ``` `6. The learned counsel for the 3[rd] respondent` `submitted that the Tribunal after going through the` MACA.No.1161 OF 2011 6 ``` entire documents and evidences and after watching demeanor of the witness, found that it is a false case and dismissed the petition. There is nothing to interfere with the impugned judgment. ``` ``` 7. It is an admitted case that an FIR is registered based on the statement of the appellant against the 2[nd] respondent. Exhibit A1 is the FIR. Exhibit A3 is the final report filed by the Police against the 2[nd] respondent alleging offences punishable under Section 279 and 338 of the IPC. It is also a fact that the 2[nd] respondent appeared before the Jurisdictional Magistrate Court and pleaded guilty. In such circumstances, the appellant prima facie proved that there is negligence on the part of the 2[nd] respondent. No evidence is adduced by the respondents to disprove the same. In the said circumstances, according to me, ``` MACA.No.1161 OF 2011 7 ``` the Tribunal erred is dismissing the claim petition as such. According to me, this is a matter to be considered by the Tribunal afresh, after giving opportunity to both sides to adduce further evidence, if any. I make it clear that no denova trial is necessary. The parties will be allowed to give additional evidence and thereafter, the Tribunal will decide the matter in accordance with law. ``` ``` Therefore, this appeal is allowed. ``` ``` 1. The award dated 05.02.2011 in O.P.(M.V) No. 1200/2007 on the file of IInd Additional Motor Accidents Claims Tribunal, Kozhikode is set aside. ``` ``` 2. The IInd Additional Motor Accidents Claims Tribunal, Kozhikode is directed to restore O.P(M.V)No.1200/2007 and dispose the same in accordance with law, after giving opportunity to both sides to adduce further evidence, if any. ``` MACA.No.1161 OF 2011 8 ``` 3. Tribunal will dispose of the claim petition as expeditiously as possible, at any rate, within six months from the date of receipt of copy of the judgment. ``` `4. The parties will appear before the Tribunal` `on 12.04.2021.` ``` Sd/- ``` ``` P.V.KUNHIKRISHNAN ``` ``` JUDGE ``` ``` avs ```