Vijayakumar B. v. Daneesh Mohanan Nair and Ratheesh M.G. and Oriental Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 ``` ``` MACA NO. 2346 OF 2012 ``` ``` AGAINST AWARD DATED 17.04.2012 IN OP(MV) NO.1398 OF 2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL ``` ## **`APPELLANT/APPLICANT:`** ``` VIJAYAKUMAR B. S/O. BHASKARAN NAIR, VIJAYA BHAVAN, KUTHIRAKULAM P.O., KOPPAM, MANICKAL VILLAGE. ``` ``` BY ADV SRI.M.DINESH ``` ## **`RESPONDENTS/APPLICANT & RESPONDENTS 2 TO 4:`** - **`1 DANEESH MOHANAN NAIR, DANEESH BHAVAN, VENKA VILA, IRINCHAYAM P.O.-695561.`** - **`2 RATHEESH M.G. S/O.MOHANAN NAIR, DANEESH BHAVAN, VENKA VILA, IRINCHAYAM P.O.-695561.`** - **`3 THE BRANCH MANAGER ORIENTAL INSURANCE CO. LIMITED, BRANCH OFFICE, RAMAKRISHNA BUILDINGS, NEAR ARISH JUNCTION, THAMPANOOR, THIRUVANANTHAPURAM-695001.`** ``` BY ADVS. DINESH MATHEW J MURICKEN SRI.M.JACOB MURICKEN ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2346 OF 2012 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V.) No.1398/2004 on the files of the Motor Accidents Claims Tribunal, Attingal. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 02.05.2004. According to him, the accident occurred when he was travelling as a pillion rider on a motorcycle bearing Registration No.KL 16/3713 ridden by the 2[nd] respondent, he applied sudden break in a rash and negligent manner and as the consequence of the same, the appellant was thrown off to the road, thereby causing serious bodily injuries. The said motorcycle was owned by the 1[st] respondent and was insured with the 3[rd] respondent. The claim petition was submitted in such circumstances by the appellant seeking a total compensation of Rs.2,00,000/-. 2. The 3[rd] respondent alone contested the matter by filing a written statement, wherein they admitted the coverage of policy for the said vehicle. However, they denied the liability on various grounds. The quantum of compensation was also disputed by ``` MACA NO. 2346 OF 2012 ``` ``` 3 ``` them. 3. The evidence in this case consists of Exts.A1 to A5 from the side of the appellant and from the side of the respondent Exts.B1, the copy of the policy was marked. After the trial the Tribunal came to the conclusion that the appellant failed to prove the involvement of the motorcycle in the accident and also that he sustained injuries in the accident. The claim petition was thus dismissed. This appeal is submitted by the appellant in such circumstances, challenging the order of the dismissal. 4. Heard Sri.M.Dinesh M., learned counsel appearing for the appellant and Sri.Dinesh Mathew J. Muricken, learned counsel appearing for the 3[rd] respondent. 5. The first question to be considered is whether the finding of the Tribunal holding that the vehicle insured with the 3[rd] respondent was not involved in the accident, is correct or not. To substantiate the accident, the appellant mainly places reliance upon Ext.A1 FIR registered by Venjaramoodu Police Station and Ext.A4 final report submitted by the Police after conducting investigation. However, the Tribunal did not rely upon the said ``` MACA NO. 2346 OF 2012 ``` ``` 4 ``` documents, mainly on the reason that there was a delay of 87 days in registering the FIR. Besides the same, apart from Ext.A5 disability certificate, no other evidence was adduced to substantiate the same. However, after carefully going through the observations made in the award and the documents produced in the claim petition, I find force in the contention put forward by the learned counsel for the appellant. Merely because of the reason that there occurred some delay in registering the FIR that by itself cannot be a ground to discard the case advanced by the appellant as such. The fact remains that the Police had indeed registered a crime, conducted an investigation and ultimately filed a final report implicating the 2[nd] respondent as an accused therein. As far as the contentions raised by the 3[rd] respondent Insurance Company is concerned, it could be seen that in the written statement, there is no specific denial of involvement the motorcycle in the accident. On the other hand, in paragraph 11 of the written statement they denied the averments made in the col. No.28 of the claim petition, and there is specific an averment that, there was no rashness or negligence on the part of the 2[nd] respondent in driving the vehicle ``` MACA NO. 2346 OF 2012 ``` ``` 5 ``` bearing Registration No.KL16/3713. Therefore, it is evident that, the 3[rd] respondent was not having a specific case as to the noninvolvement of the vehicle in the accident. Therefore, it was unnecessary for the Tribunal to assume that the said vehicle was not involved in the accident, by placing reliance upon the delay of 87 days in filing the final report. It is also to be noted in this regard that in **New India Insurance Company Ltd. v. Pazhaniyammal and others** [2011 (3) KLT 648] a Division of this Court categorically observed that, the conclusions arrived at by the Police in the final report submitted by them after conducting investigation in the crime registered in connection with the accident, could be treated as prima facie evidence for adjudicating the question of negligence, in the absence of any contra evidence adduced by any of the respondents who denied the accident. In this case, apart from the fact that, there was no specific denial as to the involvement of the vehicle in the accident at the instance of the 3[rd] respondent in their written statement, no contra evidence was also adduced against the version of the appellant as to the manner in which the accident occurred. In such circumstances, I ``` MACA NO. 2346 OF 2012 ``` ``` 6 ``` am of the view that the finding of the Tribunal, dismissing the application on the ground that the appellant failed to prove the accident, is to be interfered with. In other words, in the light of Exts.A1 FIR and A4 final report, which remain unchallenged by adducing any contra evidence, I find that the appellant sustained injuries in the accident in which the motorcycle bearing Registration No.KL 16/3713 ridden by the 2[nd] respondent, owned by the 1[st] respondent and insured with the 3[rd] respondent was involved. Therefore, all the respondents are jointly and severally responsible to pay the compensation. Since the coverage of policy is admitted by the 3[rd] respondent, they have the liability to pay the compensation on behalf of the 1[st] and 2[nd] respondents. 6. As the Tribunal dismissed the claim petition, the quantification of the compensation was not done. Therefore, for that limited purpose, the matter is remanded to the Tribunal for considering the same. In the result, this appeal is allowed. The award dated 17.04.2012 passed by the Motor Accidents Claims Tribunal, Attingal in O.P.(M.V.) No.1398/2004 is hereby set aside and the ``` MACA NO. 2346 OF 2012 ``` ``` 7 ``` claim petition submitted by the appellant is restored by holding that the accident occurred due to the rash and negligent driving of the 2[nd] respondent. Since the vehicle was insured with the 3[rd] respondent, they are liable to pay the compensation. The matter is remanded to the Tribunal for quantification of the compensation. The Tribunal shall provide a reasonable opportunity to the parties concerned to adduce evidence in support of their respective contentions with regard to the quantification of the compensation and pass an award in accordance with law. The parties are directed to appear before the Tribunal on 15.04.2024. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs ``` MACA NO. 2346 OF 2012 ``` ``` 8 ``` ## **`APPENDIX OF MACA 2346/2012`** ``` APPELLANT ANNEXURE Annexure A1 ``` ``` ORIGINAL TREATMENT CERTIFICATE ISSUED TO THE PETITIONER/APPELLANT FROM THE SUT PATTOM SUPER SPECIALTY HOSPITAL, THIRUVANANTHAPURAM DATED 13.2.2023 ```