Udhi Choudhari and Subin Joseph v Rajesh R.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 21[ST] DAY OF JANUARY 2022 / 1ST MAGHA, 1943 ``` ``` MACA NO. 2801 OF 2020 ``` ``` AGAINST THE ORDER/JUDGMENT IN OPMV 66/2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM ``` ## **`APPELLANT/S:`** ``` 1UDHI CHOUDHARI AGED 31 YEARS S/O.PRADEEP CHOUDHARI, NEELANJANAM HOUSE, CHALAPARAMBU, VAIKOM P.O., KOTTAYAM DISTRICT- 686 141. 2SUBIN JOSEPH S/O.JOSEPH, AIKKARAKUZHI HOUSE, AMALAGIRI P.O., KOTTAYAM DISTRICT, PIN - 688 036. BY ADV K.P.SUJESH KUMAR ``` ## **`RESPONDENT/S:`** ``` RAJESH R. S/O.RAVEENDRAN NAIR, MEERA VIHAR, AMBALAMEDU P.O., PUTHENCRUZ, ERNAKULAM, PIN - 682 303. BY ADVS. SRI.MATHEWS K.PHILIP SMT.T.MANASY ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2801 OF 2020 ``` ``` 2 ``` ## **JUDGMENT** The appellants were the respondents in OP(MV) No.66/2017 of the Motor Accidents Claims Tribunal, Ernakulam. The respondent in the appeal was the petitioner before the Tribunal. The parties are, for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation on account of the injuries sustained to him in an accident on 19.08.2016. It was his case that, on the aforesaid day, while he was riding his motor cycle bearing registration No. KL-40-C-8863 along the PoothottaTripunithura road, another motor cycle bearing registration No. KL-5-AK-350 (offending motorcycle) driven by the 1[st] respondent in a rash and negligent manner, hit the motor cycle of the petitioner. The petitioner fell down and sustained multiple injuries. The offending motorcycle was owned by the 2[nd] respondent and did not have a valid insurance coverage. ``` MACA NO. 2801 OF 2020 ``` ``` 3 ``` The petitioner was employed as the Branch Manager in AVIVA Life Insurance and earning a monthly income of Rs.15,000/-. Hence, the petitioner claimed a compensation of Rs.80,000/- from the respondents. 3. The respondents 1 and 2 had filed separate written statements, inter alia, contending that the accident occurred due to the negligence of the petitioner. They disputed the age, income and occupation of the petitioner. They also contended that, the petitioner was guilty for contributory negligence. They prayed that the claim petition be dismissed. 4. The petitioner had produced and marked Exts. A1 to A5 in evidence. The respondents did not let in any evidence. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioner to recover from the respondents 1 and 2 an amount of Rs. 69,000/- with interest and proportionate cost. ``` MACA NO. 2801 OF 2020 ``` ``` 4 ``` 6. Aggrieved by the impugned award, the respondents 1 and 2 are in appeal. 7. Heard; Sri. K.P. Sujesh Kumar, the learned counsel appearing for the appellants/respondents and Sri. Mathews K. Philip, the learned counsel appearing for the respondent/petitioner on admission. 8. The cardinal grounds of challenge in the memorandum of appeal are: - (i) the Tribunal has erred in finding negligence on the part of the 1[st] respondent. - (ii) the Tribunal ought to have dismissed the claim petition as the petitioner had not let in oral evidence to substantiate his assertions. - (iii) the compensation awarded under different heads is excessive. ## **Ground No.(i)** 9. The specific case of the petitioner in the claim petition was that, the accident occurred due to the negligence of the 1[st] respondent. The petitioner had produced Exhibit A2 final report laid by the Kochi City Traffic Police in Crime No. 3919/2016. ``` MACA NO. 2801 OF 2020 ``` ``` 5 ``` 10. The Division Bench of this Court in **New India Assurance Co. Ltd. vs. Pazhaniammal** : [2011 (3) KLT 648] has succinctly held that, as a general rule, the production of charge sheet is prima facie sufficient evidence of negligence for the purpose of the claim filed under Section 166 of the Motor Vehicles Act. The charge sheet can be accepted as evidence of negligence against the accused driver. If any party disputes such charge sheet, the burden is on such party to let in evidence and discredit the charge sheet. 11. In the instant case, although the petitioner had produced Ext.A1 FIR and Ext.A2 charge sheet, the respondents have not let in any evidence to the contrary to discredit the aforesaid crucial pieces of evidence relating to the accident. Therefore, going by the law laid down in **Pazhaniammal** (supra) and the fact that the respondents have not let in any evidence to the contrary, I hold that the finding of the Tribunal with regard to negligence on the part of the 1[st] respondent is perfectly justified. Hence, I answer ``` MACA NO. 2801 OF 2020 ``` ``` 6 ``` ## Ground No.(i) against the appellants. ## **Ground No.(ii)** 12. It is fairly well settled, that the proceeding before the Tribunal under the Motor Vehicles Act, 1988 is inquisitorial in nature. The Tribunal is not governed by the shackles of rigid procedures and strict rules of evidence as in a civil suit. A claim petition under the Act is to be determined on the touchstone of preponderance of probability and not on the principles of beyond reasonable doubt. The petitioner had produced documents which were marked as Exhibits A1 to A5, without any objection or protest from the respondents. The above documents prove that the accident occurred due to the negligence of the 1[st] respondent and the petitioner has sustained injuries and was treated at the Lakshmi Hospital, Ernakulam. There is no stipulation that the petitioner has to mount the box and prove the documents, especially since the proceedings are summary in nature. Therefore, the contentions put forward by the appellants that the claim ``` MACA NO. 2801 OF 2020 ``` ``` 7 ``` ought to have dismissed due to the non-examination of the petitioner is untenable and unsustainable in law. Hence I answer Ground No.(ii) also against the appellant. ## **Ground No.(iii)** 13. The Tribunal has meticulously considered each head of claim and awarded compensation under each head. I have gone through the compensation awarded under each head and find the same to be reasonable and just. 14. As against the claim of Rs. 80,000/-, the Tribunal has awarded only an amount of Rs. 69,000/-. I do not find any illegality or irregularity in the compensation awarded by the Tribunal. 15. This Court alerts itself of the fact that the accident had occurred in the year 2016. It is more than five years since the petitioner has been knocking at the doors of the courts seeking compensation. It is trite, that the Tribunals are permitted to do some guess work and also exercise their ``` MACA NO. 2801 OF 2020 ``` ``` 8 ``` discretion in awarding reasonable and just compensation, for which there cannot be any straight jacket formula based on mathematical exactitude. I find that the Tribunal has, after a thread bare analysis of the facts, judicially exercised its powers based on the provisions of the Act and the authoritative precedents of the Honourable Supreme Court while arriving at the conclusion in the impugned award. I am convinced that there are no justifiable reasons in the memorandum of appeal warranting admission of the appeal, which would only be a wastage of judicial time and harassment to the respondent/petitioner. In the result, exercising the powers of this Court under Order LXI Rule 11 of the Code of Civil Procedure, I hold that the appeal is devoid of any merit and does not warrant to be admitted. Resultantly, I dismiss the appeal at the threshold. Sd/- **C.S.DIAS JUDGE** avs