T. D. Mathew v. Xavier T.A. and United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 31ST DAY OF MARCH 2014/10TH CHAITHRA, 1936 MACA.No. 1537 of 2013 ------------------------- AGAINST THE AWARD IN OPMV 232/2007 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,ERNAKULAM DATED 20-07-2011 ## APPELLANT/PETITIONER: ---------------------------------------------- T.D. MATHEW, S/O. DEVASSI THURACKAL HOUSE, KUMBALANGI P.O., ERNAKULAM. BY ADV. SRI.T.R.SUGUNAN ## RESPONDENTS/RESPONDENTS: ---------------------------------------------------- 1. XAVIER T.A., S/O.ALAXANDER THUNDIPARAMBIL HOUSE, VATHURUTHI PO RAMESWARAM VILLAGE, ERNAKULAM-13. 2. THE UNITED INDIA INSURANCE CO. LTD PUTHUSSERRY COMPLEX GOVERNMENT HOSPITAL JUNCTION ALUVA-01 R2 BY ADV. SRI.JOHN JOSEPH VETTICKAD (B/O), NO MEMO R1 BY ADV. SRI.S.S.RAJESH R2 BY ADV. SRI.JOHN JOSEPH VETTIKAD R2 BY ADV. SRI.C.JOSEPH JOHNY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 31-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BABU MATHEW P. JOSEPH, J. = = = == = = = = = = = = = = = = = = M.A.C.A. No. 1537 of 2013 = = = = = = = = = = = = = = = = = = = Dated this the 31[st] day of March, 2014** ## **JUDGMENT** The appellant had sustained serious injuries in a motor accident that occurred on 23.6.2006 involving a motor cycle by which he was travelling as a pillion rider at the time of accident. The motor cycle was driven and owned by the first respondent and insured with the second respondent. The appellant filed a petition claiming compensation on account of the injuries sustained in the accident before the Motor Accidents Claims Tribunal, Ernakulam. The learned Tribunal, after considering the matter, found that the accident had occurred, but attributed 50% contributory negligence on the part of the appellant. The Tribunal assessed a total compensation of `72,529/- under various heads. But, awarded only ` 36,265/- as compensation to MACA 1537/2013 2 the appellant, being 50% of the total amount assessed, i.e., after deducting 50% for the contributory negligence found against him. Since there was no proof that the motor cycle involved in the accident was insured, the second respondent was exonerated and the first respondent was directed to pay the amount with interest at the rate of 8% per annum from the date of petition till realisation. Aggrieved by the finding of 50% contributory negligence on the part of the appellant and also of the finding of absence of insurance cover for the vehicle, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the second respondent. In the nature of the judgment being passed in this appeal, no notice need be issued to the first respondent. 3. Learned counsel for the appellant submits that the MACA 1537/2013 3 appellant was a pillion rider while the accident occurred. He has alleged rashness and negligence on the part of the first respondent as the cause of accident. The first respondent remained absent despite serving notice on him. Therefore, he was set ex parte. In that way, the first respondent has not disputed the rashness and negligence alleged against him. The police has charge-sheeted the first respondent alleging the offences under Sections 279 and 338 of the Indian Penal Code in the criminal case registered in respect of the accident. Therefore, rashness and negligence are alleged in the charge-sheet filed against the first respondent. The appellant has produced the criminal case records in support of his case alleged against the first respondent. No contra evidence has been adduced in the case. In such a circumstance, there was no evidence available before the Tribunal for arriving at a different finding other than the finding entered by the police in the MACA 1537/2013 4 Final Report filed in the criminal case. No contributory negligence has been alleged in the Final Report by the police against the appellant. In view of these facts, the Tribunal ought not to have found contributory negligence on the part of the appellant. In the light of the criminal case records, the Tribunal should have found negligence on the part of the first respondent alone as the cause of accident, contends the learned counsel. He further submits that even though enhanced compensation is claimed in this appeal, it is not pressed by the appellant. 4. Learned counsel for the second respondent has disputed the submissions so made by the learned counsel for the appellant in respect of the contributory negligence attributed against the appellant. 5. There is no dispute regarding the fact that an accident occurred involving the motor cycle driven by the first respondent. Also not disputed the fact that the MACA 1537/2013 5 appellant was a pillion rider on the motor cycle at the time of accident. He has claimed compensation on account of the injuries sustained in the accident alleging rashness and negligence against the first respondent. In support of that case, he has relied on the criminal case records. In the Final Report filed by the police before the court, the offences alleged against the first respondent are under Sections 279 and 338 of the Indian Penal Code. Therefore, it is the definite case of the investigating agency that the first respondent was rash and negligent at the time of accident. The first respondent remained absent before the Tribunal and he was set ex parte there. Therefore, he has not contested the rashness and negligence alleged by the appellant against him. The second respondent has not adduced any contra evidence before the Tribunal. Therefore, the only evidence in respect of the accident available before the Tribunal was the criminal case records MACA 1537/2013 6 wherein rashness and negligence have been alleged against the first respondent. This Court has repeatedly laid down that in the absence of better evidence, the Tribunal can rely on the Final Report filed by the police in the criminal case for entering a finding on negligence. (See _New India Assurance Co.Ltd. v. Pazhaniammal (2011(3)KLT 648)_ and _National Insurance Co.Ltd. v. Nirmala Balachandran [2012 (1)KLT SN 132(C.No.141)]._ Therefore, in the light of these rulings, the Final Report filed by the police in the criminal case can be relied on for entering a finding on negligence in the absence of any other better evidence. In that view of the matter, the appellant who was only a pillion rider while occurring the accident cannot be found to have contributed to the cause of accident. In the light of the evidence on record, the first respondent alone could be found responsible for the accident. Therefore, the finding contrary entered by the Tribunal that there was contributory MACA 1537/2013 7 negligence to the tune of 50% on the part of the appellant is set aside. Consequently, the reduction of 50% of the amount assessed is also set aside. The appellant is entitled to the total amount of ` 72,529/- (Rupees seventy two thousand five hundred and twenty nine only) as compensation. 6. The learned Tribunal, in the absence of evidence, did not find that the motor cycle was insured with the second respondent. The appellant has produced a copy of the Certificate of Insurance in respect of the motor cycle involved in the accident. Learned counsel for the second respondent admitted that the copy thus produced is the copy of the original Certificate of Insurance issued in respect of the motor cycle involved in the accident. Hence, the insurance cover for the motor cycle at the time of accident stands admitted. Therefore, the second respondent is liable to indemnify the first respondent, the owner/insured of the MACA 1537/2013 8 vehicle. The second respondent is directed to deposit the amount within two months from today with interest at the rate of 8% per annum from the date of filing of the petition till realisation. This appeal is allowed as above. Sd/- **BABU MATHEW P. JOSEPH** **JUDGE** ks. True copy P.S.to Judge MACA 1537/2013 9