Thulaseedharan Nair v. S. Abdul Rahim and Others

MACA.No.2495/2013 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _THURSDAY, THE 21[ST] DAY OF MARCH 2024 / 1ST CHAITHRA, 1946_ ## _MACA NO. 2495 OF 2013_ _AGAINST THE ORDER/JUDGMENT DATED IN OPMV NO.860 OF 2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ATTINGAL_ _APPELLANT/APPLICANT:_ _THULASEEDHARAN NAIR, S/O.MADHAVAN PILLAI P, KUNNUMPURATHU VEEDU, AKARAM KUTHIRAKULAM PO, VEMBAYAM._ _BY ADVS.SRI.C.R.SIVAKUMAR SRI.S.SURESH VAMANAPURAM_ ## _RESPONDENTS/RESPONDENTS:_ _1 S.ABDUL RAHIM, S/O.SHAHUL HAMEED, M/S.SUN INTERNATIONAL, SOUTH GATE SECRETARIAT, TRIVANDRUM, PIN-695 001. 2 AMEER A., S/O.ABDUL RAHIM, S.R.MANZIL, KOPPAM, VEMBAYAM P.O, PIN-695 615. 3 THE MANAGER, THE NEW INDIA ASSURANCE CO.LTD, BRANCH OFFICE, ATTINGAL P.O, PIN-695 101. BY ADVS.SRI.M.SHANAVAS SRI.P.JAYASANKAR SMT.M.MEENA JOHN SRI.K.P.SUJESH KUMAR SRI.VIJU THOMAS_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.2495/2013 2 ## **JUDGMENT** The appellant was the petitioner in O.P.(MV). No.860 of 2009 on the file of the Motor Accidents Claims Tribunal, Attingal. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 07.06.2009. 2. According to the appellant, the accident occurred when he was travelling on a motorcycle as a pillion rider, it was hit by a car bearing registration No.KL-01/AP-5655 driven by the 2nd respondent. The said vehicle was owned by the 1st respondent and it was insured with the 3rd respondent. The appellant sustained very serious injuries and the claim petition was submitted in such circumstances. 3. The 3[rd] respondent alone contested the matter by filing a written statement, wherein they specifically raised a contention that the accident occurred due to the negligence of the rider of the motorcycle and there was no negligence on the part of the 2nd respondent. The quantum of compensation was also disputed by them. It was also contended that, the claim petition was bad for the non-joinder of necessary parties because the petitioners- MACA.No.2495/2013 3 claimants have not impleaded the owner and insurer of the motorcycle KL-16/B-7963 as the respondents in the proceedings, despite the fact that the accident occurred on account of the rashness and negligence on the part of the rider of the motorcycle. The said claim petition was tried along with O.P.(MV). No.857 of 2009 filed by the rider of the motorcycle seeking compensation due to the injuries sustained in the accident. 4. Evidence in this case consists of Ext.A1 to A9 and Ext.X1 disability certificate. After the trial, the Tribunal found that the appellant could not prove the negligence on the part of the driver of the car and accordingly, the claim petition was dismissed. This appeal is submitted in such circumstances challenging the dismissal of the claim petition. 5. Heard Sri.C.R.Sivakumar, learned counsel for the appellant and Sri. Viju Thomas learned counsel for the 3rd respondent. 6. The main question to be considered is whether the finding of the Tribunal that the appellant failed to establish negligence on the part of the 2nd respondent in driving the car is correct or not. The learned counsel for the appellant submits that despite the fact MACA.No.2495/2013 4 that the Venjaramood Police registered Crime No.351 of 2009 in connection with the accident and after investigation thereon submitted Ext.A5 final report implicating the 2nd respondent as the accused, the same was not taken into account by the Tribunal while dismissing the claim petition. The learned counsel also placed reliance upon the decision rendered by a Division Bench of this Court in **New India Assurance Co.Ltd v, Pazhaniammal [2011(3)KLT648].** 7. On the other hand, the learned counsel for the 3rd respondent would point out that even as per the Police report, the manner in which the accident occurred was not in tune with the averments of the appellant in column 28 of the claim petition. Moreover, he also brought the attention of this Court to the nature of damages sustained to the vehicle as evidenced by the Ext.A4 inspection report of AMVI, which would indicate that the pleadings of the appellant as to the manner in which the accident occurred were not correct. The learned counsel for the 3rd respondent further points out that the Tribunal meticulously considered all the documents and by making a detailed discussion on the evidentiary value of the materials and also the probabilities of the accident, MACA.No.2495/2013 5 and arrived at a plausible conclusion which need not be interfered with. 8. I have carefully gone through the observations made by the Tribunal in the award. It can be seen that the Tribunal mainly relied upon Ext.A3 scene mahazar and A4 report of inspection by AMVI. Of course, it is true that the scene mahazar was prepared in a manner which would not give any clear idea about the spot of the accident and to that extent, the finding of the Tribunal with respect to the discrepancies therein is correct. However, the discrepancies in the scene mahazar by itself cannot be a reason to discard the entire case of the appellant. There is some force in the contention put forward by the learned counsel for the 3rd respondent that the description of the accident as shown in the claim petition was not exactly in tune with the version of the appellants and it is also not in tune with the damages sustained to both the vehicles in the said accident as is discernible from Ext.A4. However, a crucial aspect to be noticed in this regard is that, in the written statement of the 3rd respondent, they have a clear version of the accident which is as follows: “The averments in Col.28 are not fully correct and hence denied. The accident happened solely due to the MACA.No.2495/2013 6 carelessness of the applicant himself, who was riding the Motor Cycle bearing Reg.No.KL-16/B 7693. He had no driving licence to drive a Motor Cycle and police had taken a petty case against him. He was riding the motorcycle from North to South at a high speed, without showing any signal he suddenly turned the vehicle towards the west to enter the Petrol Pump. Because of his inexperience in riding the motorcycle, the accident happened. The 2nd Respondent had driven the car with utmost care and caution. There was not even an iota of negligence on the part of the 2nd respondent in driving the car. Being a tort feasor the applicant cannot claim compensation for his own wrong. This respondent is not either jointly or severally liable to pay compensation to the applicant.” 9. Another aspect to be noticed is that, on consideration of the entire documents available before this Court, the fact that both the vehicles were involved in the accident is clearly established and the same is not disputed by any of the parties. It is also discernible from the records that the appellant sustained injuries in the accident while he was travelling as a pillion rider on a motorcycle. Both these issues were found in favour of the appellant, by the Tribunal as well. The only dispute that remains to be settled is with reference to the question as to who was negligent and whose act was instrumental to the accident. While MACA.No.2495/2013 7 substantiating the contentions raised by the 3rd respondent, it was also pointed out that the rider of the motorcycle was not having any valid driving licence and he was charge-sheeted by the Police as well. Therefore, that is one aspect which indicates negligence on the part of the rider. 10. However, when considering the entire materials, I find some force in the contention put forward by the learned counsel for the appellant. Of course, it is true that, as rightly pointed out by the learned counsel for the 3[rd] respondent, there are certain discrepancies in the averments made by the appellant with regard to the description of the accident. The specific case as pleaded by the appellants in the claim petition is to the effect that while he was travelling as a pillion rider on the motorcycle, the car driven by the 2[nd] respondent hit on the rear side of the motorcycle. However, the AMVI reports would indicate that the motorcycle sustained no damages on the rear side of it. On the other hand, all the damages are on the handle, headlight and the right side cover of the motorcycle. Therefore, the possibility of the car hitting directly on the rear side of the motorcycle is very remote and it is not evident from any of the records. MACA.No.2495/2013 8 11. However, at this juncture the version of the accident according to the respondent and also as per the Police report are to be taken into account. Going by the averments in the written statement, the specific case advanced by the 3[rd] respondent is to the effect that while the car was being driven carefully, the motorcycle driven by the petitioner in O.P.(MV).No.857 of 2009 in front of the car without showing any signal turned towards the west of the road to enter into the petrol pump on that side and it resulted in the accident as the car hit the motorcycle. The Police records also would indicate that the accident occurred in the manner referred to above. However, if that version of the accident is accepted, the possibility of the car hitting the right front of the motorcycle cannot be ruled out. It is an admitted fact that both the said vehicles were on the very same direction, i.e from north to south. Therefore if the motorcycle turned towards the west, i.e., towards the right side of both the vehicles, the contention that the car which was coming from behind, hit the right front side of the motorcycle is a probable one. Another crucial aspect to be noticed is that the car sustained damages on the left side as well. Therefore, the damages sustained to the motorcycle on the right MACA.No.2495/2013 9 front side. This would clearly explain the version of the accident as is revealed from the version of the accident in the written statement and also in the police report. 12. The remaining question is whether there was negligence on the part of the rider of the motorcycle in taking a turn towards the western side of the road and whether it was without any signal or not. After considering the said question, as of now, there are no materials available on record. The only relevant aspect is the Police report in the form of an Ext.A5 charge sheet, in which the Police found negligence solely on the part of the 2[nd] respondent. The question regarding the manner of adjudication of negligence in such circumstances was already considered by this Court by a Division Bench of this Court in **New India Assurance Co.Ltd v, Pazhaniammal [2011 (3) KLT 648],** wherein it was categorically held that in the absence of any contra evidence, the conclusion arrived at by the Police in the final report submitted by them after conducting investigation in the crime registered in connection with the accident can be accepted as prima facie proof of negligence. MACA.No.2495/2013 10 13. Here, in this case, despite the fact that Ext.A5 final report stands against the 2[nd] respondent, the driver of the vehicle insured with the 3[rd] respondent, no contra evidence has been adduced by any of the respondents. As far as the claim petition under Section 166 of the Motor Vehicles Act is concerned, the decision as to the negligence is to be taken on the basis of preponderance of probabilities. Thus, while evaluating the materials now available on record, I am of the view that in the light of the observations made in **Pazhaniammal’s case** (supra)the finding in the police report has to be accepted in the absence of any contra evidence. 14. Of course, the learned counsel for the 3[rd] respondent also pointed out that, the rider of the motorcycle was not having a valid driving licence and the Police registered a separate case for driving the vehicle without having a valid licence against him. However, even if it is assumed that the rider of the motorcycle did not have any valid driving licence, that by itself cannot be a reason to attribute negligence on the part of the 2[nd] respondent in the absence of any specific evidence to that effect. While raising such a contention it is the duty on the part of the respondent to adduce MACA.No.2495/2013 11 specific evidence to the effect that, the lack of driving skills of the rider of the motorcycle also contributed to the accident. In this case, even though a contention to that effect has been raised in the written statement, the 3[rd] respondent did not care to let in any evidence to substantiate the same. Therefore, the said contention also cannot be accepted. This would lead to a conclusion that, the accident occurred solely due to the negligence of the second respondent. 15. There is yet another aspect which compels this Court to find the issue in favour of the appellant. This is in view of the fact that even if any contributory negligence is found upon the rider of the motorcycle, the same will not preclude the appellant in this case from claiming the entire compensation from the respondents herein. In **Khenyei v. New India Assurance Co. Ltd and Others [2015 (2) KLJ 593]** , the Honourable Supreme Court categorically observed that, when the question of composite negligence of two persons arises, the victim shall be entitled to proceed against both of them or any one of them for the entire compensation or part of it, as desired by the claimant. This is particularly because, being joint tortfeasors, the liability of both the tortfeasors would be joint MACA.No.2495/2013 12 and several. In this case, even if it is found that the negligence of the rider of the motorcycle contributed to the accident, still it would be a case of composite negligence and not a case of contributory negligence as far as the appellant in this case is concerned, being a pillion rider of the motorcycle. Therefore, even if there is a finding that, the rider of the motor cycle also contributed to the accident, that cannot be reason to deny the right of the appellant to claim the entire compensation from the 3[rd] respondent in this case. Therefore, on that ground also, the contention raised by the respondent in this case has to be rejected. 16. However, since the claim petition itself was dismissed, the quantum of compensation was not considered by the Tribunal. In such circumstances, I am of the view that, the matter can be remanded to the Tribunal for that limited purpose. In the result, this appeal is allowed. The award passed by the Tribunal in O.P.(M.V) No.860 of 2009, dismissing the claim petition is hereby set aside. It is held that, the accident occurred solely due to the negligence of the second respondent. Therefore, the first respondent being the owner and the third respondent being the insurer of the vehicle are jointly and severally liable to pay the MACA.No.2495/2013 13 compensation, along with the second respondent. Since the coverage of the policy is admitted by the third respondent, the said payment has to be affected by the third respondent. The matter is remanded to the Tribunal for considering the question of the quantum of compensation alone. The parties shall be at liberty to adduce such further evidence to establish their respective contentions pertaining to the quantum of compensation and the Tribunal shall provide them a reasonable opportunity for adducing such further evidence. Thereafter the Tribunal shall decide and quantify the compensation in accordance with law. The parties are directed to appear before the Tribunal on 30[th] April 2024. **Sd/-** **ZIYAD RAHMAN A.A. JUDGE** DG/rpk/23.3.24