Sidhique C.K. v. A.K. Elango and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 23[RD] DAY OF NOVEMBER 2023 / 2ND AGRAHAYANA, 1945 ``` ## **`MACA NO. 1165 OF 2011`** ``` AGAINST THE AWARD DATED 08.02.2011 IN OP(MV) 916/2009 OF PRINCIPAL ``` ## **`MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE`** ## **`APPELLANT/PETITIONER:`** ``` SIDHIQUE C.K. AGED 26 YEARS, S/O.ALI, RESIDING AT MYLADUMKUNNU PARAMBA, P.O POKKUNNU, KOZHIKODE. ``` ``` BY ADV SMT.CELINE JOSEPH ``` ## **`RESPONDENTS/RESPONDENTSS:`** - `1 A.K.ELANGO KOLATHUPULLY HOUSE MARKET LANE, PONKUNNAM, TRISSUR 686 506.` - `2 ABOOBACKER S/O ABDURAHIMAN AGED 33 YEARS, RESIDING AT PURAMKANDI HOUSE, OMANOOR, MALAPPURAM 673 640.` - `3 BAJAJ ALLIANZ GENERAL INSURANCE CO LTD., TECHNICAL MANAGER, 3RD FLOOR, FINANCE TOWER NEAR INDIAN EXPRESS, KALOOR, ERNAKULAM 682 018.` ``` 4MANI.M S/O.BHASKARAN NAIR AGED 42 YEARS, RESIDING AT PAVANGATTU HOUSE, P.O.KURUVATTOOR ,KOZHIKODE 673 611. ``` ``` 5JIJEESH S/O. CHANDRAN MODAVANKANDIYIL HOUSE, P.O.KIZHAKKUMMURI, KAVUMPOYIL, KOZHIKODE, 673 611. (DELETED) ``` - `6 THE NATIONAL INSURANCE CO LTD 2ND FLOOR, NOOR COMPLEX, MAVOOR ROAD, P.B.NO.811, KOZHIKODE 673 001.` ``` 2 ``` ## **`MACA NO. 1165 OF 2011`** ``` BY ADVS. SRI.AKHIL K.MADHAV K.RAKESH ROSHAN C.SIVANUNDAN CHENDAN THUSHARA.V S.K.AJAY KUMAR(K/557/1990) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1165 OF 2011 ``` ``` 3 ``` ## **`JUDGMENT`** The appellant is the petitioner in O.P.(M.V.) No.916/2009 on the files of the Principal Motor Accident Claims Tribunal, Kozhikode. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that took place on 18.10.2008. 2. According to the appellant, he was a driver of a goods autorickshaw bearing Registration No.KL 11 A 4796, which was in a stationary position at the time and place of the accident. At that time, a bus bearing Registration No.KL 8 AA 2100, driven by the 2nd respondent, in a rash and negligent manner, hit on another autorickshaw bearing Registration No.KL 11 U 7914, and thereafter, it lost control and hit the autorickshaw driven by the appellant. Consequent to the accident, he sustained serious injuries and was taken to MIMS Hospital, Kozhikode. The 1st respondent was the owner, and the 3rd respondent was the insurer of the bus. The 4th respondent was the driver, the 5th respondent was the owner, and the 6th respondent was the insurer of the said autorickshaw bearing ``` MACA NO. 1165 OF 2011 ``` ``` 4 ``` Registration No.KL 11 U 7914. The claim petition was submitted in such circumstances by the appellant seeking compensation of Rs.2,00,000/-. 3. The respondents 3 and 6, the insurers of the bus and the autorickshaw, respectively, filed written statements. In the written statement filed by the 3rd respondent, they admitted the coverage of the policy but disputed the liability on various grounds. They contended that the accident occurred due to negligence on the part of the driver of the autorickshaw bearing KL 11 U 7914. However, there was no denial regarding the involvement of autorickshaw bearing Registration No.KL 11 A 4796 in the accident. 4. The 6th respondent submitted a written statement admitting the coverage of policy over the autorickshaw bearing Registration No.KL 11 U 7914. However, they denied the liability on various grounds. According to them, the accident occurred due to negligence on the part of the driver of the bus. They also denied the involvement of the autorickshaw driven by the appellant in the accident. The quantum of compensation was also disputed. ``` MACA NO. 1165 OF 2011 ``` ``` 5 ``` 5. The evidence in this case consists of Exts.A1 to A8 from the side of the appellant and Ext.C1 from the side of the court. After the trial, the Tribunal came to the conclusion that the appellant could not prove that the autorickshaw driven by the appellant was involved in the accident and that he sustained injuries in the said accident. Therefore, the said claim petition was dismissed. Challenging the dismissal of the said claim petition, this appeal is filed. 6. Heard Smt.Celine Joseph, learned counsel appearing for the appellant, Sri.Akhil K. Madhav, learned counsel appearing for the 3[rd] respondent Insurance Company and Sri. C. Sivanandan, learned counsel appearing for the 6[th] respondent Insurance Company. 7. The main contest in this appeal relates to the involvement of the vehicle driven by the appellant in the accident and the injuries he claimed to have sustained in the accident. The learned counsel for the appellant would contend that, even though there were several documents indicating the involvement of his ``` MACA NO. 1165 OF 2011 ``` ``` 6 ``` vehicle in the accident and that he sustained injuries in the very same accident, the Tribunal overlooked the said material pieces of evidence and arrived at an erroneous conclusion. On the other hand, the learned counsels appearing for the 3[rd] and 6[th] respondents contend that the materials available on record are not sufficient to establish that the appellant had sustained the injuries in the accident, as referred to in the claim petition. 8. I have carefully gone through the records. Ext.A2 is the wound certificate issued by the MIMS Hospital, Kozhikode. It is evident from the said document that the appellant was brought to the hospital on 18.10.2008 at 11.30 p.m., whereas the accident occurred on the same day at 10.50 p.m. Thus, it is evident that he was brought to the hospital immediately after the accident, and the alleged cause of injuries recorded in Annexure A2 was an autorickshaw collision on 18.10.2008 at 10.45 p.m. at Govindapuram. The details of the injuries sustained by the victim are also explicitly mentioned therein. Ext.A3 is the discharge summary from the hospital. In the said document, it has been clearly mentioned that the petitioner has ``` MACA NO. 1165 OF 2011 ``` ``` 7 ``` been brought to the Emergency Department following a road traffic accident in which the pickup auto he was driving was crushed. The aforesaid documents were prepared immediately after the accident. Therefore, it carries some genuineness regarding the reasons recorded therein, mainly because the possibility of false information being submitted at the relevant time is very low. Ext.A4 is the final report submitted by the Police after conducting an investigation. The Tribunal mainly relied upon Ext.A4 and observed that in the final report, there is no reference to the appellant having sustained injuries in the accident. I have gone through the Ext.A4 document, which is marked as part of the documents. Unfortunately, the document produced before the court was incomplete, and it contains only two pages, and the remaining pages are missing. The learned counsel for the appellant made available a copy of the complete final report, from which it could be seen that the involvement of the vehicle driven by the appellant was specifically referred to. 9. Another crucial aspect to be noticed is that the 3rd respondent, the insurer of the bus, filed a written statement without ``` MACA NO. 1165 OF 2011 ``` ``` 8 ``` any denial as to the involvement of the vehicle driven by the appellant. They also did not raise a contention to the effect that the appellant had not sustained any injuries in the accident referred to in the claim petition. In the claim petition, a clear narration of the incident, as referred to above, was mentioned. However, the same has not been denied by the 3rd respondent. The crucial aspect to be noticed in this regard is that, as per the final report submitted by the Police, the driver of the bus was implicated as the accused. 10. Thus, when considering all the relevant aspects, I find that there are ample materials indicating the involvement of the autorickshaw driven by the appellant in the accident and that he sustained injuries in the very same accident. The cause of injuries suffered by the appellant, as recorded in Ext.A2 and A3, which were prepared immediately after the accident, cannot be ignored. Besides the same, mentioning the petitioner's vehicle in the final report is also a relevant aspect that fortifies the contention of the appellant in this regard. As observed above, the Tribunal mainly relied upon Annexure A4 final report to hold that there was no reference to the ``` MACA NO. 1165 OF 2011 ``` ``` 9 ``` appellant having been involved in the accident. However, it can be seen from the records that the document relied on by the Tribunal was incomplete, wherein the relevant pages where the involvement of the appellant was referred to, were not there. Therefore, the finding entered by the Tribunal dismissing the claim petition was erroneous. From the materials placed on record, the irresistible conclusion possible is that autorickshaw bearing Registration No.KL 11 A 4796, driven by the appellant, was involved in the accident, and he sustained injuries in the accident as well. As it is evident from the records that the driver of the bus was held liable for the accident as per the final report, the same can be accepted for deciding the question of negligence in view of the fact that the respondents have adduced no contra evidence. The position of law in this regard is well settled in the light of the decision rendered by a Division Bench of this Court in **New India Insurance Company Ltd. v. Pazhaniyammal and others [2011 (3) KLT 648],** where it was held that when there is no contra evidence against the conclusion arrived by the Police, the same can be accepted to ``` MACA NO. 1165 OF 2011 ``` ``` 10 ``` adjudicate the question of negligence in a claim petition under Section 166 of the Motor Vehicles Act. In the light of the aforesaid observations and findings, the award dated 08.02.2011 in O.P.(M.V.) No.916/2009 passed by the Principal Motor Accident Claims Tribunal, Kozhikode, is hereby set aside. However, as the Tribunal did not quantify the compensation, the matter is remanded back to the Tribunal for the said purpose. The appellant, as well as the respondents, shall be at liberty to adduce further evidence for determining the quantum of compensation, and after considering the materials placed on record, the Tribunal shall quantify the compensation receivable by the appellant, and the award shall be passed in accordance with the law. The parties are directed to appear before the Tribunal on 20.12.2023. In case any of the parties are not appearing, notices shall be issued to them by the Tribunal. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs