## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
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THE HONOURABLE MRS. JUSTICE MARY JOSEPH
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WEDNESDAY, THE 27[TH] DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
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MACA NO. 151 OF 2024
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AGAINST THE AWARD DATED 23.08.2023 IN O.P(M.V) NO.1762 OF 2017 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM
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## **`APPELLANT/3RD RESPONDENT:`**
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THE UNITED INDIA INSURANCE CO. LTD,
T.P.CELL, JOS TRUST BUILDING, CHITTOOR ROAD, KOCHI-31,
REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE,
HOSPITAL ROAD, ERNAKULAM, PIN - 682035
BY ADVS.SRI.GEORGE A.CHERIAN
SMT.LATHA SUSAN CHERIAN
SRI.GEORGE CHERIAN (SR.)
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## **`RESPONDENT/PETITIONER:`**
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SOBIN K. VARGHESE
AGED 34 YEARS
S/O.LATE SEBASTIAN, NOW RESIDING AT KATTIL HOUSE,
S.N. NAGAR ROAD, MANNANTHURUTHU, VARAPUZHA FROM
MADAVANA HOUSE, FORT KOCHI, PIN – 6835 17
BY ADVS.SRI.A.R.NIMOD
SRI.M.A.AUGUSTINE(K/000511/2005)
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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING
ON 27.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **JUDGMENT**
## **Dated this the 27[th] day of March, 2024**
This appeal is originated from an award passed by Motor Accidents Claims Tribunal, Ernakulam (for short ‘the Tribunal’) on 23.08.2023 in O.P(M.V) No.1762/2017. The appellant is the insurer of the offending vehicle involved in the motor accident.
2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondent No. 3 in accordance with their status in the Original Petition.
3. The facts of the case in brief are to the following effect:
The petitioner sustained injuries in a motor accident occurred on 05.08.2007. He was pillion riding on a motorcycle bearing registration No.KL-07BF-947 which was ridden by the 2[nd] respondent and when reached near
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Bishop House, Pattalam, the petitioner was thrown from the vehicle to the road due to the rash and nelgigent riding by its rider. He sustained serious injuries and was rushed to a hospital for treatment. Claiming a total sum of `50,00,000/- as compensation, the above Original Petition was filed before the Tribunal.
4. The registered owner, the rider and the insurer of the motorcycle bearing registration No.KL 7BF 947 were arrayed as respondents 1 to 3 in the Original Petition. All respondents were served with notice. 1[st] and 2[nd] respondents did not turn up to contest the Original Petition and therefore, were declared by the Tribunal as _ex parte_ . 3[rd] respondent filed written statement admitting insurance coverage for the motorcycle bearing registration No.KL 7BF 947 under the certificate of insurance issued by them. Negligence on the part of the 2[nd] respondent was denied and that was sought to be attributed to the petitioner himself. The Original Petition was contended as
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not maintainable, since it was filed after ten years from the date of occurrence. Claim petition was sought to be dismissed for the above reasons.
5. Before the Tribunal, evidence was adduced by the petitioner. An ocular witness was examined as PW1 and Exts.A1 to A17 and C1 were marked on the side of the petitioner. 3[rd] respondent did not adduce any evidence. On appreciation of the entire evidence, the Tribunal found that the motor accident in question was occurred due to the rash and negligent riding of the motorcycle bearing registration No.KL 7BF 947 by the 2[nd] respondent. The Tribunal also found that the petitioner who had sustained injuries is entitled to get compensation from respondents 1 to 3 jointly and severally. A sum of `26,98,436/- was also arrived at as the compensation payable. Interest at the rate of 8% per annum was also ordered. 3[rd] respondent was directed to deposit the said sum with interest accrued on it from the date of filing of the Original
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Petition till the date of realisation. Proportionate costs was also allowed.
6. The award is under challenge by the insurer mainly on the question of limitation. According to her, the Original Petition having been preferred after ten years from the date on which the motor accident was occurred, is barred by limitation and ought not to have been entertained by the Tribunal. According to the learned counsel, though limitation period was not applicable at the relevant time for filing a claim petition seeking compensation, it having been filed with an inordinate delay of ten years, ought to have been dismissed by the Tribunal. The learned counsel has also relied on **Purohit and Company vs. Khatoonbee and another** [2017(2) KLJ 260 (SC)] to rest her contention.
7. Eventhough a ground was raised in the appeal memorandum challenging the quantum of compensation stood awarded by the Tribunal, at the time of argument the learned counsel submitted that he is not pressing it.
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8. The learned counsel for the petitioner contended on the contrary that the Original Petition was filed when time limit for filing the petition seeking compensation was not prescribed by the Motor Vehicles Act, 1988 (for short ‘the MV Act’). According to him, the documents marked in evidence itself indicate that the motor accident was occurred on 05.08.2007 and on that day itself, the petitioner had availed treatment from Medical Trust Hospital, Kochi. According to him, Ext.A2 is the accident register cum wound certificate prepared there on 05.08.2007, the date on which the motor accident was allegedly occurred. The learned counsel has also produced an order passed by the very same Tribunal in the very same Original Petition, while dismissing an application raising limitation as a preliminary issue. The Tribunal dismissed the application stating that the Original Petition was not barred by limitation. It thus directed the Original Petition to be proceeded with. That order was
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passed on 04.11.2022, but no challenge was raised against, by the appellant herein. The learned counsel for the appellant contended in the context that the period of limitation can be taken as a ground even in the appeal on hand.
9. If question of maintainability is heard by raising a preliminary issue and answered it by an order, it must be challenged then and there.
10. It is pertinent to note from the impugned award that even after passing of an order answering the preliminary issue in the affirmative manner, the Tribunal again raised that as an issue for trial and answered it in the impugned award. In the said circumstances, a challenge could be raised against answering of that issue in the impugned award. Going by the appendix wherein the documents marked in evidence and relied on by the Tribunal are dealt with, a copy of FIR is found marked as Ext.A1. It was dated 05.10.2007. According to the
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learned counsel for the appellant, it was registered on the basis of a private complaint filed by the petitioner before the Magistrate Court after two months of the date of the motor accident. But it is pertinent to note that the private complaint was taken on file by the Magistrate after taking cognizance of and it was referred to the police for investigation under Section 156(3) of the Code of Criminal Procedure (for short ‘the Cr.P.C.’) A final report was also laid in the First Information Report (FIR) after holding an elaborate investigation and that is marked in evidence as Ext.A3. It was dated 30.10.2007. A copy of the wound cum discharge certificate issued in favour of the petitioner from Medical Trust Hospital, Kochi is also produced and marked in evidence as Ext.A2 where also the accident was shown as occurred on 05.08.2007.
11. A final report was marked in evidence as Ext.A3 without any objection being raised by the appellant. It has been laid down by this Court in **The New India**
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## **Assurance Co. Ltd. v. Pazhaniammal [2011(3) KLT**
**648]** that a final report when produced and marked in evidence, would form _prima facie_ evidence of negligence unless collusion is established by the opposite party by adducing evidence. In the case on hand, no objection was found raised against the marking of the final report in evidence.
12. The learned counsel for the 3[rd] respondent has raised a contention that the driving licence and other vehicular documents of the offending vehicle were produced by the petitioner himself and therefore, collusion is there among the petitioner and the respondents. It is for the 3[rd] respondent to adduce cogent evidence to establish collusion alleged against the parties. It is pertinent to note that the respondent failed to adduce any evidence in the case on hand.
13. The factual situation in the decision relied on by the learned counsel for the 3[rd] respondent is totally
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different from the one on hand. The motor accident in that case was occurred on 02.02.1977. The allegation in the Original Petition was that the daughter of the petitioners died in a motor accident occurred on 02.02.1977. But going by the medical documents on record in the case, it was revealed that the death of the victim was occurred only on 23.02.2005, after a period of more than twenty eight years. Moreover, the Original Petition seeking compensation if was preferred immediately, then the period of limitation was applicable for raising a claim for compensation under the Act. Though the Original Petition ought to have been filed on 02.02.1977 seeking compensation for the injuries sustained by the daughter of the petitioners, they preferred to file the Original Petition only on the death of his daughter after twenty years from the date of the motor accident. In the above context that the Apex Court held in the case cited that the claim petition being filed
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after a considerable time is barred by limitation and accordingly dismissed it.
14. The factual situation in the case on hand is entirely different for the reason that on the very date on which the motor accident was allegedly occurred, the petitioner had attended a hospital and an accident register cum wound certificate was prepared reporting the injuries sustained by him. It is true that a crime was not registered on that date, but only after two months, based on a private complaint moved by the petitioner before the Magistrate court. A crime was registered following the filing of the private complaint and after concluding the investigation, a final report was also laid which was marked in evidence as Ext.A3. Moreover while preferring the claim petition on hand, period of limitation was not applicable. In the above circumstances that the Tribunal was pleased to allow the Original Petition, and calculated and awarded compensation in favour of the petitioner. The
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Tribunal is justified in doing so and there is no reason to
interfere with the impugned award.
Appeal fails for the reasons and is dismissed.
Sd/-
**MARY JOSEPH JUDGE**
NAB
