The National Insurance Co. Ltd. v. Saraswathy @ Saras, Abhijith, Anju and N.D. Antony

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 29TH DAY OF NOVEMBER 2017/8TH AGRAHAYANA, 1939** **MACA.No. 985 of 2014 () ------------------------** **AGAINST THE AWARD IN OPMV 339/2007 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,PERUMBAVOOR DATED 16-01-2014** **APPELLANT(S)/2ND RESPONDENT:** **---------------------------** **THE NATIONAL INSURANCE CO. LTD.** **KALAMASSERY, REPRESENTED BY ITS DEPUTY MANAGER REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35.** **BY ADVS.SRI. GEORGE CHERIAN (SR.) SMT.K.S.SANTHI** **RESPONDENT(S)/CLAIMANTS & 1ST RESPONDENT:** **-----------------------------------------** ## **1. SARASWATHY @ SARASU** **W/O.VENU, PARAKKATTUMALA HOUSE, THEVAKKAL KARA THRIKKAKARA NORTH VILLAGE, 682 030.** **2. ABHIJITH, S/O.VENU** **PARAKKATTUMALA HOUSE, THEVAKKAL,682 030..** ## **3. ANJU, D/O.VENU** **PARAKKATUMALA HOUSE, THEVAKKAL, 682 030..** ## **4. N.D. ANTONY** **S/O.DOMINIC, NEDIYAPARAMBIL, RESIDING AT JOJO NEST EDATHALA KARA, ALUVA EAST VILLAGE, 683 101** **R1,R2,R3 BY ADV. SRI.R.DIVAKARAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.K.ABDUL REHIM, J. & K.P.JYOTHINDRANATH, J.** ======================== **M.A.C.A.No.985 of 2014** ======================== Dated this the 29[th] day of November 2017 ## **JUDGMENT** ## C.K.Abdul Rehim, J. The 2[nd] respondent-insurance company in O.P. (M.V)No.339/2007 on the files of the Motor Accidents Claims Tribunal, Perumbavoor is the appellant herein, challenging the award to the extent it discarded the contention of the appellant that the vehicle insured by them had not involved in the accident in question. 2. The claim before the Tribunal was filed by the wife and two children of a person named Venu, who allegedly died due to the injuries sustained in a motor vehicle accident, which occurred on 15.10.2006 at 7.40 pm. The claim was preferred with an allegation that, at the place of accident the person died was hit by a Scooter bearing Reg.No.KL-7/AG 4827, which was M.A.C.A.No.985 of 2014 **2** driven by 1[st] respondent in rash and negligent manner. According to the claimants, Venu died while undergoing treatment at the Medical College Hospital, Kalamassery on the morning hours of 18.10.2006. It was alleged that the accident occurred due to rash and negligent driving of the Scooter by the 1[st] respondent. The Scooter in question was insured with the 2[nd] respondent and hence they are liable to pay the amount of compensation, was the claim. 3. Before the Tribunal, the 1[st] respondent had filed a written statement denying the allegation of negligence. It was contended that he was driving the vehicle with due caution and care and the accident occurred only due to the negligence on the part of the deceased himself, who under the influence of alcohol had gone across the road negligently. 4. The 2[nd] respondent insurance company filed a written statement admitting the policy of insurance. But it was contended that, the person died had sustained injuries only due to a fall on the road and that the story of the accident was cooked up only for getting compensation from the insurance M.A.C.A.No.985 of 2014 **3** company. In other words, the contention of the 2[nd] respondent before the Tribunal was that, the vehicle in question was not involved in the accident. 5. The Tribunal, after evaluating the evidence on record, discarded the contentions raised by the 2[nd] respondent and found that the claimants were successful in proving negligence against the 1[st] respondent, who was the owner-cum-rider of the Scooter involved in the accident. It was held that the 2[nd] respondent, being the insurer of the vehicle is liable to pay compensation. Accordingly, the Tribunal had awarded a total sum of Rs.5,94,974/-. 6. Contentions raised by the appellants are based on the testimony of RW1-Doctor and Ext.X1 case records produced from the Medical College Hospital, Cochin. RW1 - Doctor had deposed that, the person died was admitted in the hospital at 1.46 pm on 16.10.2006, and he died on 6.40 am on 18.10.2006. RW1 deposed that he was on casualty duty on the night of 15.10.2006 and the person died came to the casualty on the early morning of 16.10.2006 at 1.54 a.m., with complaint of M.A.C.A.No.985 of 2014 **4** abdominal pain and distension of abdomen and inability to pass urine. It is mentioned that, at that time the patient gave a history of fall on the road. According to RW1, it was mentioned by the patient himself. The Doctor deposed that his condition was not very stable and his pulse rate and Blood Pressure were not normal. 7. Testimony of the Doctor is to the effect that, at that time he came alone and he was smelling alcohol. The clinical features were suggestive of intra-abdominal injury, could be a liver injury. There was rigidity of abdomen and diffused tenderness. According to RW1, even though the patient was advised for admission, he was not willing; and he was not admitted. The Doctor further deposed that, on the next day (as per Ext.X1 on 16.10.2006 itself) he came to the very same medical college hospital with a reference letter from the General hospital, Ernakulam, at about 1.46 p.m. and got admitted therein. Ext.X1 treatment records would indicate that at the time of admission on 16.10.2006 at 1.46 p.m., the history noted was “H/O fall”. It is evident from the case records that the patient M.A.C.A.No.985 of 2014 **5** was managed with immediate surgical procedures, but he died at 6.40 am on 18.10.2006. Ext.A5 is the Post Mortem Certificate issued on conducting autopsy on the body of the deceased. The anti- mortem injuries noted therein include, fracture of 8,9 and 10[th] ribs on the left side and 7,9 and 10[th] rips on the right sides. The medical records would indicate that the person had severe internal injuries to the abdomen and liver, for which he had undergone surgical procedures. 8. Contention of learned Counsel appearing for the appellant insurance company is that, the police case was fabricated only after death of the person, on the morning of 18.10.2006. It is true that Ext.A1 FIR was registered only on the morning of 18.10.2006, on the basis of an intimation received from the Medical College Hospital. According to RW1, it is after intimating the death that the relatives informed that the person died had sustained injuries in a motor vehicle accident and requested for conducting post-mortem. However, it has come out in evidence that the Police had investigated the case and filed a final report, charge sheeting the 1[st] respondent on the basis that M.A.C.A.No.985 of 2014 **6** he had driven the Scooter in a rash and negligent manner and caused to hit the same against the person died, at about 7.40 p.m. on 15.10.2006 at a place about ¾ k.m. towards east from Kangarapady junction. The claimants have produced all the records relating to the criminal case registered by the Police, including the charge sheet. The 1[st] claimant, who is the wife of the deceased, was examined as PW1. Her testimony is to the effect that her husband has not reached to the house on the night of 15.6.2006 and on enquiry the relatives found him lying on a public road. They brought him to the house under the impression that he was lying there unconscious because of excess consumption of liquor. But at about 1 a.m., he had severe abdominal pain and was taken to the Medical College Hospital. 9. According to her, when the Doctor questioned about the history, the deceased was not in a position to gave any answer and she only mentioned to the Doctor that Venu had sustained injuries due to fall on the road. Only subsequently when the people in the locality mentioned about the accident which occurred on 7.40 p.m. on 15.10.2006, she came to realise M.A.C.A.No.985 of 2014 **7** that the injuries were sustained due to the accident. She further deposed that, when enquired at the Police Station it was informed that, a person named Antony, who is a retired Tahsildar, had informed at the station about the hit of his Scooter on a person at the place of the accident. In the cross examination PW1 had deposed that, when the person died was brought to home during night of 15.10.2006 there was no external injuries and he was taken to the Medical College Hospital only after midnight when it is found that he was suffering from severe abdominal pain. She denied the suggestion that the injuries were sustained due to fall on the road. According to her, she realised about the accident caused by the Scooter, only when it is learned that the owner of the Scooter had informed about the accident at the Police Station. 10. From the evidence discussed as above, question to be considered as to whether the appellants/claimants were successful in proving the motor vehicle accident and in proving negligence on the part of the 1[st] respondent. All the records relating to the criminal case registered with respect to the M.A.C.A.No.985 of 2014 **8** accident, including the charge sheet, were proved from the side of the appellant/claimants. It remains settled through the decision of this Court in **New India Assurance Company v. Pazhaniammal[2011 3 KLT 348]** that the production of Police charge sheet is prima facie sufficient evidence to prove negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. Therefore, the question to be considered is whether the appellants/claimants had successfully rebutted the prima facie evidence adduced on behalf of the claimants. The appellant insurance company is placing heavy reliance on the testimony of RW1. Even if the version put forth by RW1 Doctor is accepted as true and correct, it would only indicate that at the time when the patient was admitted at 1.46 pm on 16.10.2006 and when he came to the causality on the early morning of the same day, the history and alleged cause mentioned to the Doctor was a fall on the road. But the said evidence need to be evaluated in harmony with the oral testimony of PW1, the widow of the deceased. She deposed that the person died was brought to the house by some of their relatives, only during the late night M.A.C.A.No.985 of 2014 **9** on 15.10.2006. At that time the relatives who brought him as well as PW1 were under the impression that he was seen lying on the public road unconscious due to heavy intoxication. She conceded, that at that time nobody had knowledge about the motor vehicle accident. It is only later, it came to their knowledge about the hit by a Scooter. On enquiry it was learned that the 1[st] respondent, who is the owner-cum-driver, had reported about the accident to the Police Station. In this regard, it is pertinent to note the contention raised by the owner-cumdriver of the vehicle before the Tribunal. He had admitted about the accident. But only denied the negligence alleged against him. Further, we take note of the fact that the person died had sustained very severe injuries like fracture of various ribs on both sides of his chest, along with severe internal injury to the abdomen and liver. A mere fall on the road will not in any probability cause such severe injuries. In the case at hand, it is evident that the Police after conducting detailed investigation had charge sheeted the 1[st] respondent. Considering the above mentioned circumstances, we are of the opinion that the M.A.C.A.No.985 of 2014 **10** appellant was not successful in rebutting the evidence adduced by the claimants to prove the accident and the negligence on the part of the 1[st] respondent. Consequently, we find no ground to interfere with the conclusions arrived by the Tribunal. Even though there is a challenge against the quantum of compensation awarded, on a perusal of the impugned award, we are convinced that only just and reasonable compensation is awarded under different heads. Under the above mentioned circumstances, the appeal deserves no merits and the same is accordingly dismissed. Sd/ ## **C.K.ABDUL REHIM JUDGE** **K.P.JYOTHINDRANATH** **JUDGE** jm/