The Oriental Insurance Co. Ltd. v. M.T. Suresh Babu and Badarudheen and United India Insurance Co. Ltd. (MACA No. 1992 of 2009)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** **THURSDAY, THE 11TH DAY OF APRIL 2013/21ST CHAITHRA 1935** ## **MACA.No. 1992 of 2009 ( )** **-------------------------AGAINST THE ORDER/JUDGMENT IN OPMV.227/2002 of M.A.C.T.,ERNAKULAM DATED 14-01-2009** ## **APPELLANT(S)/4TH RESPONDENT:** **------------------------------------------------------** **THE ORIENTAL INSURANCE CO.LTD, NOW REP, .BY ITS ASSISTANT MANAGER, REGIONAL OFFICE METRO PALACE, KOCHI-18.** **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT(S)/PETITIONER AND RESPONDENTS 1 & 2,:** **------------------------------------------------------------------------------------** **1. M.T.SURESH BABU S/O.M.K.THATHI, MANAKKATHARA HOUSE, NEAR TV JUNCTION, MARADU PO.** **2. BADARUDHEEN S/O. BEERABUNMI, MEENAMTHARA VELIYIL HOUSE, VALANTHAKKADU ROAD MARADU PO.** ## **3. UNITED INDIA INSURANCE CO.LTD, DIVISIONAL OFFICE, ERNAKULAM.** **R2 BY ADV. SRI.P.M.KUNJIMOIDEENKUTTY R2 BY ADV. SRI.LAL K.JOSEPH R2 BY ADV. SRI.V.R.REKESH R2 BY ADV. SRI.P.A.ABISH R1 BY ADV. SRI.ANIL S.RAJ R1 BY ADV. SMT.K.N.RAJANI R1 BY ADV. SRI.RADHIKA RAJASEKHARAN P. R1 BY ADV. SMT.ANILA PETER R3 BY ADV. SRI.S.MAMMU** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## S.SIRI JAGAN & BABU MATHEW P.JOSEPH, JJ. ================== ## M.A.C.A.No. 1992 of 2009 ================== Dated this the 11[th] day of April, 2013 J U D G M E N T ## Siri Jagan, J. One of the two insurance companies involved in O.P(M.V.). No.227/2002 before the Motor Accidents Claims Tribunal, Ernakulam, is the appellant herein. The 1[st] respondent herein filed the claim petition seeking compensation for the injuries and disability suffered by him in the accident involving two motor cycles, one insured with the appellant and the other insured with the 3[rd] respondent. The 1[st] respondent was a pillion rider in one of the motor cycles. Both motor vehicles were covered by package polices. The 1[st] respondent filed the claim petition alleging negligence solely on the part of the driver of the vehicle, in which, he was travelling as a pillion rider. But he had impleaded the owner and the driver of the other motor cycle and its insurance company also. But later on, the 1[st] respondent got the claim petition amended contending that the accident occurred because of the composite negligence of the drivers of both the vehicles. The Tribunal, after considering the evidence, M.A.C.A.1992/09 - : 2 :- relying solely on the scene mahazar, came to the conclusion that the accident occurred on account of the negligence of the driver of the vehicle insured with the appellant and awarded a total compensation of ` 1,08,638/- with 7.5% interest per annum and proportionate costs. The appellant is challenging the said award of the Tribunal. 2. The contention of the appellant is that except the scene mahazar, all the other evidence available directly points to the negligence of the driver of the motor vehicle, in which, the 1[st] respondent was a pillion rider. The scene mahazar was prepared the day after the accident. Despite the availability of the scene mahazar, the police completed the investigation and laid charge sheet against the driver of the motor cycle, in which, the 1[st] respondent was a pillion rider. In the above circumstances, the Tribunal could not have entered a finding of negligence on the part of the driver of the vehicle insured with the appellant is the contention raised. A further contention raised is that even assuming that there is any negligence on the part of the driver of the vehicle insured with the appellant, insofar as the driver of the other vehicle was also negligent, the Tribunal ought to have apportioned the negligence and directed M.A.C.A.1992/09 - : 3 :- both insurance companies to pay the compensation in appropriate shares. 3. The learned counsel for the 3[rd] respondent insurance company would contend that the scene mahazar is a most important document in respect of a criminal case, especially on the question of rash and negligent driving of a motor vehicle. The same was prepared the next day of the accident, which categorically shows that the accident happened on the right side of the vehicle insured with the 3[rd] respondent. That being so, the Tribunal was perfectly correct in entering a finding of negligence on the part of the driver of the vehicle insured with the appellant is the contention raised. 4. The learned counsel for the 1[st] respondent would contend that when the claim petition was prepared, the 1[st] respondent had a mistaken impression about the negligence part of the accident. That is why, subsequently the claim petition was amended to place the correct position of facts before the Tribunal. Therefore, the 1[st] respondent stands by the amended claim petition and the oral evidence adduced by him. 5. We have considered the rival contentions in detail. 6. It is not disputed by any of the parties that originally, M.A.C.A.1992/09 - : 4 :- the 1[st] respondent filed a claim petition categorically alleging that the accident happened solely because of the negligence of the driver of the motor vehicle, in which, he was travelling as a pillion rider. Much later, he got the claim petition amended. But even then, in the amended claim petition also, his contention only was that the accident occurred because of the composite negligence of drivers of both vehicles. The 1[st] respondent gave evidence as PW1. He filed a proof affidavit, in paragraph 6 of which, he categorically stated that the accident happened due to rash and negligent driving of the drivers of both motor cycles. In cross examination also his version was the same. Of course, to a pointed question as to whether the driver of the vehicle insured with the 3[rd] respondent insurance company was liable to pay compensation, he answered that he does not know. Again, to a pointed question as to whether the driver of the vehicle insured with the appellant was responsible of the accident, he again stated that he does not know. It is also an admitted fact that in the criminal case the Police charge sheeted the driver of the vehicle, in which, the 1[st] respondent was travelling as a pillion rider. As such, the only evidence available to support the contention that the driver of the vehicle insured with the M.A.C.A.1992/09 - : 5 :- appellant was negligent in causing the accident is the scene mahazar. Of course, the scene mahazar certainly supports that view. But the learned counsel for the appellant would point out that the scene mahazar was prepared the next day when the situation had totally changed and despite the scene mahazar, the Police after investigation laid charge against the vehicle insured with the 3[rd] respondent only, viz., the 2[nd] respondent herein. A Division Bench of this Court in **New India Assurance Company Ltd. v. Pazhaniammal** , 2011 (3) KLT 648, has held that production of police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. But it is true that that decision does not contemplate a situation where the records on the basis of which, the charge is laid is mutually contradictory. Taking into account the evidence available on record, the irresistible conclusion possible is that the drivers of both vehicles were equally negligent in causing the accident. That being so, we apportion the negligence between the driver of the vehicle insured with the appellant and the 2[nd] respondent, whose vehicle is insured with the 3[rd] respondent in equal proportion. Since the accident occurred because of the composite negligence of the M.A.C.A.1992/09 - : 6 :- two drivers, as the pillion rider of one of the two offending vehicles, the 1[st] respondent is entitled to recover compensation from the owners of both vehicles and their insurance companies jointly and severally. Accordingly, we hold that the owners and drivers of both vehicles and insurance companies of both vehicles are equally liable to satisfy the award of the Tribunal. Accordingly, we hold that the appellant and the 3[rd] respondent are liable to pay 50% each of the amount awarded by the Tribunal. It is submitted that as directed by this Court, the appellant insurance company has already deposited 50% of the amount awarded by the Tribunal. If that be so, the 3[rd] respondent insurance company shall deposit the balance amount within two months. The appeal is disposed of as above. **==> picture [200 x 29] intentionally omitted <==** Sd/sdk+ BABU MATHEW P.JOSEPH, JUDGE ///True copy/// P.A. to Judge M.A.C.A.1992/09 - : 7 :-