Valsamma Chacko and others v. M.A. Titto and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 02ND DAY OF JULY 2019 / 11TH ASHADHA, 1941** ## **M.A.C.A.No.2591 of 2008** **AGAINST THE COMMON AWARD IN O.P.(MV)NO.517/2001 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KOZHIKODE DATED 07-11-2007** ## **APPELLANTS/APPELLANTS:** - **1 VALSAMMA CHACKO, W/O.LATE CHACKO GEORGE, PUTHUPPALLIYIL HOUSE, P.O.KULIRAMUTTY, KOODARANHI, KOZHIKODE.** - **2 MILANA (MINOR, REP. BY MOTHER VALSAMMA GEORGE).** - **3 GEORGE, S/O.KURIAKOSE, PUTHUPPALLIYIL HOUSE, P.O.KULIRAMUTTY, KOODARANHI, KOZHIKODE.** - **4 ANNAMMA, W/O.GEORGE, PUTHUPPALLIYIL HOUSE, P.O.KULIRAMUTTY, KOODARANHI, KOZHIKODE.** **BY ADVS. SRI.V.C.JAMES SRI.GEORGE MECHERIL** ## **RESPONDENTS/RESPONDENTS:** - **1 M.A.TITTO, S/O. ANTONY, MOYALAM HOUSE, P.O.VARANDRAPPALLI, THRISSUR.** - **2 UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, SEEMA TOWER, MAVOOR AOD, KOZHIKODE.** - **3 M.A.THOMAS, C/O.M.A.TITTO, MOYALAN HOUSE, P.O.VARANDRAPPALLI, TRICHUR.** - **4 VALSAMMA CHACKO, W/O.LATE CHACKO GEORGE.** - **5 MILANA (MINOR), REP. BY LEGAL GUARDIAN VALSAMMA CHACKO, W/O.LATE CHACKO GEORGE.** M.A.C.A.Nos.2591/2008 & con.cases -2- **6 NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE-II, PB.NO.811, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE.** **BY ADVS. SRI.A.A.MOHAMMED NAZIR SRI.RAJESH THOMAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02.07.2019, ALONG WITH MACA.455/2017, MACA.467/2017, MACA.485/2017, MACA.2592/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.2591/2008 & con.cases -3- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 02ND DAY OF JULY 2019 / 11TH ASHADHA, 1941** **M.A.C.A.No.455 of 2017** **AGAINST THE AWARD IN O.P.(MV)NO.447/2001 DATED 07-11-2007 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANTS/PETITIONERS:** **1 VALSAMMA CHACKO, W/O.LATE CHACKO, PUTHUPPALLIYIL HOUSE, KULIRAMUTTY P.O., KOODARANHI, KOZHIKODE DISTRICT. 2 MILANA, D/O.VALSAMMA CHACKO, PUTHUPPALLIYIL HOUSE, KULIRAMUTTY P.O., KOODARANHI, KOZHIKODE DISTRICT. BY ADV. SRI.A.N.SANTHOSH** ## **RESPONDENTS/RESPONDENTS:** **1 M.A.TITTO, S/O.ANTONY, MOYALAN HOUSE, VARANTHARAPPALLY P.O., THRISSUR-680303 2 UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE , IRINJALAKUDA-680121. 3 M.A.THOMAS, C/O.M.A.TITTO, MOYALAN HOUSE, VARANTHARAPPALLY P.O., THRISSUR-680303** **BY ADVS. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02.07.2019, ALONG WITH MACA.485/2017, MACA.467/2017, MACA.2592/2008, MACA.2591/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.2591/2008 & con.cases -4- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 02ND DAY OF JULY 2019 / 11TH ASHADHA, 1941** **M.A.C.A.No.467 of 2017** **AGAINST THE AWARD IN O.P.(MV)NO.330/2001 DATED 7.11.2007 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONER:** **MILANA, D/O.VALSAMMA CHACKO, AGED 26 YEARS, PUTHUPPALLIYIL HOUSE, KULIRAMUTTY P.O., KOODARANHI, KOZHIKODE DISTRICT.** **BY ADVS. SRI.A.N.SANTHOSH SRI.GEORGE MECHERIL** ## **RESPONDENTS/RESPONDENTS:** **1 M.A.TITTO, S/O.ANTONY, MOYALAN HOUSE, VARANTHARAPPALLY P.O., THRISSUR-680303. 2 UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, IRINJALAKUDA-680121.** **3 M.A.THOMAS, C/O.M.A.TITTO, MOYALAN HOUSE, VARANTHARAPPALLY P.O., THRISSUR-680303.** **BY ADVS.** **SRI.JOSHY THANNICKAMATTAM SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02.07.2019, ALONG WITH MACA.485/2017, MACA.455/2017, MACA.2592/2008, MACA.2591/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.2591/2008 & con.cases -5- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 02ND DAY OF JULY 2019 / 11TH ASHADHA, 1941** **M.A.C.A.No.485 of 2017** **AGAINST THE AWARD IN O.P.(MV)NO.354/2001 DATED 07-11-2007 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER:** **VALSAMMA CHACKO, W/O.CHACKO, PUTHUPPALLILYIL HOUSE, KULIRAMUTTY P.O.,KOODARANHI, KOZHIKODE DISTRICT BY ADV. SRI.A.N.SANTHOSH** ## **RESPONDENT/S:** **1 M.A.TITTO S/O.ANTONY, MOYALAN HOUSE, VARANTHARAPPALLY P.O., THRISSUR-680303 2 UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, IRINJALAKUDA-680121 3 M.A.THOMAS, C/O.M.A.TITTO, MOYALAN HOUSE, VARANTHARAPPALLY P.O.,THRISSUR-680303** **BY ADVS. SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02.07.2019, ALONG WITH MACA.467/2017, MACA.455/2017, MACA.2592/2008, MACA.2591/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.2591/2008 & con.cases -6- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 02ND DAY OF JULY 2019 / 11TH ASHADHA, 1941** ## **M.A.C.A.No.2592 of 2008** **AGAINST THE COMMON AWARD IN O.P.(MV)NO.2465/2001 ON THE FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KOZHIKODE DATED 07-11-2007** ## **APPELLANTS/PETITIONERS:** |**1**|**VALSAMMA CHACKO,**| |---|---| ||**W/O.LATE CHACKO GEORGE, PUTHUPPALLIYIL HOUSE,**| ||**P.O.KULIRAMUTTY, KOODARANHI, KOZHIKODE.**| |**2**|**MILANA (MINOR),**| ||**REPRESENTED BY MOTHER VALSAMMA GEORGE.**| |**3**|**GEORGE, S/O.KURIAKOSE, PUTHUPPALLIYIL**| ||**HOUSE, P.O.KULIRAMUTTY, KOODARANHI, KOZHIKODE.**| |**4**|**ANNAMMA, W/O.GEORGE PUTHUPPALLIYIL**| ||**HOUSE, P.O.KULIRAMUTTY, KOODARANHI, KOZHIKODE.**| ||**BY ADVS.**| ||**SRI.V.C.JAMES**| ||**SRI.GEORGE MECHERIL**| ## **RESPONDENTS/RESPONDENTS:** - **1 M.A.TITTO, S/O ANTONY, MOYALAN HOUSE, P.O.VARANDRAPPALLI, THRISSUR.** - **2 UNITED INDIA ASSURANCE CO.LTD., BRANCH OFFICE, SEEMA TOWER, MAVOOR ROAD,KOZHIKODE** - **3 M.A THOMAS, C/O.M.A.TITTO, MOYALAN HOUSE, P.O. VARANDRAPPALLI,THRISSUR.** M.A.C.A.Nos.2591/2008 & con.cases -7- **BY ADV. SRI.JOHN JOSEPH VETTIKKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02.07.2019, ALONG WITH MACA.485/2017, MACA.467/2017, MACA.455/2017, MACA.2591/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.2591/2008 & con.cases -8- ## **P.B. SURESH KUMAR, J.** **-----------------------------------------M.A.C.A. Nos.2591/2008, 2592/2008** **& 467/2017, 485/2017 and 455/2017 -----------------------------------------Dated this the 2[nd] day of July, 2019.** ## **J U D G M E N T** On 19.08.2000, one Chacko George was travelling from Ernakulam to Kozhikode with his wife and two minor children in a car owned by him. In the course of the journey, at Thalor in Thrissur district, the car collided with a bus which was coming from the opposite direction. Chacko George, one of his children and the driver of the car died and others sustained injuries in the occurrence. The car was also damaged extensively. The wife, the surviving child of Chacko George and the parents of Chacko George, thereupon instituted collectively and individually five proceedings for compensation before the Motor Accidents Claims Tribunal. One for the loss caused to them on account of the death of Chacko George, one for the loss caused to them on account of the death of the minor child, one for the damage caused to the car in the accident and the remaining for the injuries caused to them M.A.C.A.Nos.2591/2008 & con.cases -9- in the accident. Compensation was claimed in the proceedings from the owner, driver and insurer of the bus alleging that the accident occurred on account of the negligence of the driver of the bus. The insurer of the bus contested the proceedings contending, among others, that the accident occurred on account of the negligence of the driver of the car and they are, therefore, not liable to compensate the claimants. The Tribunal accepted the case put forward by the insurer of the bus and dismissed the claim petitions by a common award. The wife, the surviving child of Chacko George and the parents of Chacko George are aggrieved by the decision of the Tribunal in the claim petitions and they have therefore instituted these appeals collectively and individually. 2. Heard the learned counsel for the appellants as also the learned counsel for the insurer of the bus involved in the accident. 3. The learned counsel for the appellants strenuously contended that the accident occurred on account of the negligence of the driver of the bus and the finding to the contrary rendered by the Tribunal is unsustainable. It was submitted by the learned counsel that in the case registered in connection with the accident at the instance of the owner of the bus, the police came to the conclusion that the accident occurred on account of the M.A.C.A.Nos.2591/2008 & con.cases -10- negligence of the driver of the car and it is in the light of the said conclusion arrived at by the police that the Tribunal has accepted the case put forward by the insurer of the bus. It was contended by the learned counsel that in a case of this nature, the Tribunal should have decided the question of negligence independent of the police investigation. It was pointed out by the counsel that the wife of Chacko George who was an eyewitness to the occurrence has deposed before the Tribunal as PW1 that the accident occurred on account of the negligence of the driver of the bus, and the conclusion arrived at by Tribunal is without having regard to the said evidence. The essence of the submissions made by the learned counsel, therefore, was that the Tribunal ought to have held, based on the evidence of PW1, that the accident occurred on account of the negligence of the driver of the bus. It was also contended by the learned counsel alternatively that the Tribunal should have, at any rate, found that the drivers of both vehicles have contributed to the cause of the accident. According to the learned counsel, had that been the finding, it would have been a case of composite negligence and in that event, the victims of accident are entitled to claim compensation from the insurer of the bus as well. The learned counsel for the appellants concluded his submissions praying that in the event this court affirms the finding rendered by the Tribunal that M.A.C.A.Nos.2591/2008 & con.cases -11- the accident occurred on account of the negligence of the driver of the car, having regard to the object of the statutory provisions, the matters may be remitted to the Tribunal for fresh disposal after affording an opportunity to the appellants to convert the claim petitions to those preferred under Section 163A of the Motor Vehicles Act, whereunder, the claimants would be in a position to claim compensation from the insurer of the bus without there being any obligation to establish negligence on the part of the driver of the bus. 4. I have examined the contentions raised by the learned counsel for the appellants. As pointed out by the learned counsel for the appellants, in the case registered in connection with the accident, after due investigation, the police came to the conclusion that the accident occurred on account of the negligence of the driver of the car. True, the conclusion arrived at by the police in the case registered in connection with the accident as to the negligence is not binding on the parties to the proceedings before the Tribunal and they are entitled to adduce independent evidence to prove the negligence on the part of the driver of the bus. It appears, it is in the said circumstances, the wife of deceased Chacko George gave evidence in the proceedings as PW1 for proving negligence on the part of the driver of the bus. No doubt, she is an eye witness to M.A.C.A.Nos.2591/2008 & con.cases -12- the accident and a competent witness and she has deposed that the accident occurred on account of the negligence of the driver of the bus. But insofar as she is a claimant in almost all the proceedings and she being a person interested in the outcome of the proceedings, one would certainly expect some other materials to corroborate the evidence tendered by PW1. Unfortunately, no other evidence was let in by the claimants to prove the negligence on the part of the driver of the bus. Further, Exht.B1 scene mahazar prepared by the police in the case registered in connection with the accident which is part of the records indicates that the width of the tarred portion of the road at the place of occurrence was 8.5 meters and the place of occurrence was 3.42 meters from the eastern tarred end of the road. Ext.A1 first information report in the said case indicates that the car was proceeding from south to north and the bus was coming from north to south. In other words, the accident occurred on the side of the bus. PW1 has admitted in her evidence that the entire front portion of the car dashed against the front portion of the bus. In other words, the materials on record would indicate beyond doubt that the car which should have gone through the western side of the road had gone to the eastern extremity of the road and dashed against the bus. Having regard to the totality of the M.A.C.A.Nos.2591/2008 & con.cases -13- facts and circumstances, I am of the view that the Tribunal cannot be found fault with for having concurred with the conclusion arrived at by the police that the driver of the car while making an attempt to overtake a KSRTC bus in a rash and negligent manner had gone abruptly to the eastern extremity of the road and caused the accident. It is all the more so since the Tribunal has recorded that it had called for the case diary maintained by the police and perused the statements obtained by the police from other eye witnesses, and the statements and materials available in the case diary would not justify any conclusion other than the conclusion arrived at by the police. If the accident occurred on account of the negligence of the driver of the car, the claimants cannot seek compensation from the insurer the bus and the decision taken in this regard by the Tribunal is perfectly in order. 5. It is now trite that the claimant in a proceedings before the Motor Accidents Claims Tribunal under Section 166 can certainly convert the proceedings into one under Section 163A of the Act, but such an option has to be exercised by him before the commencement of the trial [See **Deepal Girishbhai Soni v. United India Insurance Co. Ltd** . 2004 KHC 595 and **United India Insurance Company Ltd. v. Akbar Shihab and others** , 2012 KHC 304]. Since the claimants have not exercised their option for conversion M.A.C.A.Nos.2591/2008 & con.cases -14- of the proceedings before commencement of the trial, the prayer made by the learned counsel for the appellants for remitting the matters to the Tribunal for fresh disposal cannot be entertained. The appeals, in the circumstances, are liable to be dismissed and I do so. ## **Sd/-** **P.B.SURESH KUMAR** **JUDGE** vv