The Oriental Insurance Company Ltd. v. Naja and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **TUESDAY, THE 19TH DAY OF JULY 2016/28TH ASHADHA, 1938** ## **MACA.No. 1092 of 2010 ( )** **-------------------------AGAINST THE AWARD IN OPMV 760/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ALAPPUZHA DATED 21-08-2008** ## **APPELLANT(S)/2ND RESPONDENT:** **---------------------------** **THE ORIENTAL INSURANCE COMPANY LIMITED, ALAPPUZHA, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18.** ## **BY ADVS.SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENT(S)/PETITIONERS & IST RESPONDENT:** **------------------------------------------** **1. NAJA, W/O.LATE M.SREEKUMAR, MULLASSERY VELIYIL HOUSE, MUHAMMA P.O., CHERTHALA TALUK,, ALAPPUZHA DISTRICT.** **2. M.S.ARJUN (MINOR) S/O.LATE M.SREEKUMAR, DO. DO.** ## **3. MUKUNDAN, DO. DO.** ## **4. THULASI DO. DO.** **5. RAJENDRAN P., S/O.PARAMESWARAN, NANNAMKERIL VELI HOUSE, MUHAMMA P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT.** **[MINOR 2ND RESPONDENT IS REPRESENTED BY HIS MOTHER 1ST RESPONDENT]** ## **R1-4 BY ADV. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ. - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1092 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19[th] day of July, 2016** ## **J U D G M E N T** ## **C.T. Ravikumar, J.** This appeal is directed against the judgment and award dated 21.8.2008 in O.P.(M.V.)No.760/2204 passed by the Motor Accidents Claims Tribunal, Alappuzha. The appellant is the second respondent therein. The vehicle involved in the accident which led to its filing was insured with the appellant. The claim petition was filed by the respondents 1 to 4 herein who are the legal heirs of the victim of the said accident viz deceased Sreekumar. They filed the claim petition in the following circumstances:- On 13.2.2004 the deceased Sreekumar was riding his motorcycle bearing registration No.KL-5K-3126 through Kallappuram Kannady Kavala Road. At about 4 a.m when he reached near Kattukada Kizhakke Junction he met with the motor accident in question in which he lost his life. The aforesaid claim petition was then filed by his legal heirs who 2 M.A.C.A.No.1092 of 2010 are the wife, son and parents of deceased under Section 163A of the M.V.Act. Evidently, apart from stating that Sreekumar died in a motor vehicle accident they have specifically stated therein that on the date of the accident he was aged 28 years and that he was earning Rs.3,300/per month. The Tribunal considered the documentary evidence on record consisting of Exts.A1 to A11 on the side of the claimants and Ext.B1 on the part of the respondent therein for passing the award. It is to be noted that both sides did not adduce any oral evidence before the Tribunal. The Tribunal rejected the contentions raised on behalf of the respondents to defeat the claim and found that the appellants are entitled to get a compensation of Rs.2,82.000/- and awarded it. It is in the said circumstances, that the captioned appeal has been preferred by the second respondent, the insurer taking up the contention that the accident in question was a self invited one and therefore, the claimants who are the legal heirs of deceased Sreekumar are not entitled to get 3 M.A.C.A.No.1092 of 2010 compensation. 2. We have heard the learned counsel for the appellant and also the learned counsel for the respondents. 3. The learned counsel for the appellant contended that the Tribunal went wrong in granting compensation at the instance of the legal heirs of the deceased even though the claim petition was filed under Section 163A of the M.V.Act. In the light of the decision of the Hon'ble Apex Court in **National Insurance Company Ltd. v. Sinitha [2011 (4) KLT 821 (SC)]** it is contended that it would be open to the concerned insured owner or the insurer of the vehicle in question to defeat such a claim raised under Section 163A by pleading and establishing any one of the three faults namely wrongful act, negligent or default on the part of the victim of the accident. The learned counsel for the appellant further contented that though the documentary evidence produced by the respondents/claimants themselves would establish that the accident occurred solely due to the negligence of the M.A.C.A.No.1092 of 2010 4 deceased Sreekumar, the Tribunal had not appreciated the evidence therefrom in their true perspective. To buttress the said contention, the learned counsel drew our attention to Ext.A1 which is a copy of FIR and FIS, Ext.A2, copy of scene mahazar, Ext.A3 copy of the vehicle mahazar, Exts.A4 & A5 which are respectively the copies of Inquest Report and Postmortem Certificate. Relying on the said documents actually produced by the respondents/claimants it is contended by the learned counsel for the appellant that they would go to show that the accident occurred solely due to the negligence on the part of deceased Sreekumar. True that, in the written statement filed before the Tribunal also a specific contention has been raised by the appellant herein to the effect that since the accident in question is one invited by the deceased himself, the claimants being the legal heirs of deceased Sreekumar are not entitled to get compensation. However, the learned counsel for the respondents/claimants contended that though such a contention was specifically raised by the respondents 5 M.A.C.A.No.1092 of 2010 including the appellant herein before the Tribunal a scanning of the evidence on record would reveal that they had failed to establish the said contention. 4. In the light of the rival contentions, the questions to be decided is whether the finding of the Tribunal that the question as to who was at fault in respect of the accident question is immaterial and foreign to an enquiry under Section 163A of the M.V.Act can be sustained and whether it is permissible for the appellant, being the insurer of the vehicle involved in the accident, to take up such a contention of negligence against the deceased to defeat the claim. If the answer to the first question is in the negative and that of the latter is in the affirmative the next question to be decided is whether the appellant had succeeded in establishing the averments regarding negligence on the part of the deceased taken specifically in the written statement. In fact, the issues involved in the first two questions are no more res integra. In the decision of the Hon'ble Apex Court in Sinitha's case (supra) it was held that 6 M.A.C.A.No.1092 of 2010 though in view of the specific provision under Section 163A (2) of the M.V.Act claimants should not be required to plead or establish negligence or any of the three faults on the part of the owner of the vehicle or vehicles concerned or of any other person it is open to the insured owner or insurer of the concerned vehicle to plead and prove that the accident in question arose due to any of the three folds namely 'wrongful' and 'negligent' or 'default'. In the light of the decision in Sinitha's case (supra) the contention raised by the appellant against the aforesaid findings has to be sustained and it has to be held that a claim raised under Section 163A of the M.V.Act could be defeated by the insurer or by the insured owner by pleading and proving any of the three faults, as mentioned therein, against the victim of the very accident in question. Accordingly, the finding of the Tribunal in conflict with the decision of the Hon'ble Apex Court, is vacated. 5. Then the next question to be decided is whether in this case the appellant had succeeded in establishing the M.A.C.A.No.1092 of 2010 7 fact that the accident occurred due to the negligence of the deceased Sreekumar. As noticed hereinbefore, except producing Ext.A11 which is the policy in respect of the vehicle in question, no other documentary evidence or oral evidence was produced by the appellant herein to establish the negligence attributed against the deceased Sreekumar. Even then we will consider the question whether by merely relying on the documents referred above, it would be open to the appellant to contend that they would go to prove that the accident occurred solely due to the negligence of deceased Sreekumar and ergo, the respondents 1 to 4 are not entitled to get the compensation being his legal heirs. While considering the sustainability of the said contention, the following recital in paragraph No.17 of the decision of the Hon'ble Apex Court in Sinitha's case would assume relevance. "The Tribunal in holding, that the rider Shijo was responsible for the accident, had placed reliance on copies of the first information report, postmortem certificate, scene mahazar, report of inspection of vehicle, inquest report and final report. Neither of M.A.C.A.No.1092 of 2010 8 these in our considered view, can constitute proof of “negligence” at the hands of Shijo." (emphasis added) It is obvious from the afore-extracted portion from paragraph 17 of the decision in **Sinitha's** case (supra) that in that case before the Hon'ble Apex Court copies of the F.I.R., postmortem certificate, scene mahazar, report of inspection of vehicle, inquest report, final report etc. were relied on to canvass that the rider was responsible for the accident and it was his negligence that had caused the accident. However, the Apex Court held that neither of those documents could constitute proof of negligence against the rider. It is evident from the said paragraph that documents which are similar in nature to Exts.A1 to A5 were considered by the Apex Court and the aforementioned observation was rendered even after perusing such documents. When that be the position, we are of the considered view that the aforesaid documents produced by the claimants and relied on by the appellant could not M.A.C.A.No.1092 of 2010 9 constitute proof of negligence against the rider viz., deceased Sreekumar. Though the insured owner or the insurer is entitled to defeat a claim raised under Section 163-A of the Motor Vehicles Act by pleading and establishing any one of the three faults the Apex Court held that it could be defeated only by producing cogent evidence in that regard. The aforequoted paragraph would reveal that the documents mentioned therein could not constitute such cogent evidence so as to defeat the claim raised under Section 163-A and therefore, relying merely on such documents the appellant cannot defeat the claim of respondents 1 to 4, the claimants. The discussion as above would reveal that, in this case, even after taking up a specific contention that the accident occurred due to the negligence from the part of deceased Sreekumar for whose death compensation was claimed by respondents 1 to 4, the appellant had failed to establish the same. When that be the position, the challenge against the impugned judgment by the 10 M.A.C.A.No.1092 of 2010 2[nd] respondent has to fail. Accordingly, this appeal is dismissed. In the circumstances obtained in this case, the parties shall bear respective costs. Sd/- **C.T. RAVIKUMAR JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/