Vineesh v. The New India Assurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 7[TH] DAY OF JUNE 2023 / 17TH JYAISHTA, 1945`** ## **`MACA NO. 1825 OF 2011`** ``` OPMV659/2005OFTHEMOTORACCIDENTSCLAIMSTRIBUNAL, THODUPUZHA ``` ## **`APPELLANT/RESPONDENT NO.4:`** ``` VINEESH,S/O.BHASKARAN, MUTTATHANIYILHOUSE,MANNAMKUDYBHAGOM,PAMPADUMPARA VILLAGE,MANNAMKUDYKARA. ``` ``` BYADVS. SRI.C.M.TOMY SRI.K.J.JOSEMON ``` ## **`RESPONDENTS/PETITIONERS AND RESPONDENTS 1 TO 3:`** - **`1 SAVITHRY, W/O. LATE SURENDRAN, SRAYIKKATTU HOUSE, VALLIYATHOVALA KARA, MANNAMKUDY BHAGOM, PAMPADUMPARA VILLAGE, PIN-685556.`** - **`2 RARISH, S/O.LATE SURENDRAN, SRAYIKKATTU HOUSE, VALIYATHOVALA KARA, MANNAMKUDY BHAGOM, PAMPADUMPARA VILLAGE-685556.`** - **`3 JOHNSON, S/O.THOMAS ANTONY,`** ``` KANDATHIPARAMBILHOUSE,KARUMADY,AMBALAPUZHA.P.O, ALAPPUZHADISTRICT-688561. ``` - **`4 MATHEW M.C., S/O.SAMUEL CHACKO,`** ``` MATTATHILHOUSE,VALIYATHOVALAKARA,VALIYATHOVALAP.O, KATTAPPANA-685510. ``` - **`5 THE NEW INDIA ASSURANCE CO.LTD.,`** - **`REP.BY ITS DIVISIONAL MANAGER, KOTTAYAM-686001.`** ``` R5BYADV.SRI.LALK.JOSEPH,SC,THENEWINDIAASSURANCE CO.LTD. ``` ``` ADV.SEBASTIANVARGHESE(K/141/2000) ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLY HEARDON31.05.2023,THECOURTON07.06.2023DELIVEREDTHE FOLLOWING: ``` MACA 1825 of 2011 2 ## **J U D G M E N T** The 4[th] respondent in OP(MV) No.659 OF 2005 on the file of the Motor Accidents Claim Tribunal, Thodupuzha is the appellant herein. He is impugning the award as he was found responsible to compensate the legal heirs of the deceased. 2. On 29.05.2005, at 2.30 p.m., while one Mr. Surendran was pillion riding a motorbike from Thovalla to Mannakudy, KL-6-6096 jeep driven by the 2[nd] respondent dashed against the motorbike and the pillion rider was thrown down and he sustained spinal injury. He was taken to Karuna Hospital, Nedumkandom, from where he was referred to Medical College Hospital, Kottayam. While undergoing treatment, he succumbed to the injury on 01.06.2005. 3. The legal heirs of deceased Surendran filed OP(MV)No.659 of 2005, claiming compensation of Rs.5 lakh. The Tribunal, after analysing the evidence, awarded compensation of Rs.3,61,800/fastening the liability on the appellant herein, who was the rider of the motorcycle, in which deceased Surendran was pillion riding. Against that finding of the Tribunal, the appellant has approached MACA 1825 of 2011 3 this Court, by filling the above MACA. 4. Before the Tribunal, PW1 was examined and Exts. A1 to A7 were marked from the side of the claimants/legal heirs of the deceased. RWs 1 and 2 were examined and Ext.B1 was marked from the side of the respondents. 5. Heard learned counsel appearing for the appellant and learned counsel appearing for the 5[th] respondent-New India Assurance Company. 6. The death of Sri.Surendran in the road traffic accident occured on 29.05.2005 is not in dispute. The involvement of KL-6 -9782 motorbike and KL-6-6096 jeep in the accident are also not in dispute. Both vehicles were insured with the 5[th] respondent-Insurance Company, also is an admitted fact. The 4[th] respondent herein is the owner-cum-driver of the jeep. The appellant herein is the owner-cum-rider of the motorcycle. 7. Learned Tribunal to fasten the liability on the appellant, relied on Ext.A1 copy of FIR, Ext.A2 copy of Mahazar and Ext.A6 copy of Final Report in Crime No.77 of 2005 of Vandenmedu Police Station. Ext.A4, the Report of Inspection of the Vehicles was also relied upon by the learned Tribunal to find that the damages on MACA 1825 of 2011 4 both the vehicles were on its front side, and so there occurred a head on collision between those two vehicles. The Charge Sheet would say that the appellant herein rode the motorbike in a rash and negligent manner and hit against the jeep which was stopped on the road. It is true that production Police Charge Sheet is _prima facie_ sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. But if any of the parties do not accept such Charge Sheet, burden must be on such party to adduce evidence. If Court feels that Charge Sheet is collusive, Tribunal can record that Charge Sheet cannot be accepted and call upon the parties at any stage to adduce oral evidence of accident and alleged negligence. In such case, issue of negligence must be decided on other evidence ignoring the Charge Sheet (reliance placed on **New India Assurance Co. Ltd** vs. **Pazhaniammal** [2011 (3) KLT 648]). 8. In the case on hand, the accident occurred on 29.05.2005. The FIR was lodged on 31.05.2005 at 12.40 p.m. i.e., on the third day of the accident. It is pertinent to note that FI Statement was given by the driver of the jeep which was involved in the accident. In all probability he may give statement exonerating himself and his MACA 1825 of 2011 5 vehicle, and implicating the other vehicle involved in the accident. Ext.A2 Scene Mahazar shows that the tar road at the place of occurrence was having a width of 2.79 metres. But the place of occurrence is stated as 3 metres 4 centimetres on the northern side of an electric post standing on the southern side of the road. So learned counsel for the appellant would say that the place of occurrence was on the northern side of the road as seen from the Scene Mahazar. The motorcycle was proceeding towards east and the jeep was proceeding towards west. If the incident occurred on the northern side of the road as seen from the Scene Mahazar, definitely the jeep was on its wrong side. 9. RW-1-the appellant herein deposed before the Tribunal that while he was riding his motorcycle, the jeep driven by the 4[th] respondent herein in a rash and negligent manner, dashed against his motorcycle and due to that impact the pillion rider Sri.Surendran was thrown down on the road and he sustained injuries. According to him, the jeep driver, who was negligent, gave FI Statement before Police and a false case was registered against him. He was acquitted by JFCM, Nedumkandom, finding that he was not guilty of the offences alleged. MACA 1825 of 2011 6 10. RW-2, who claims to be an eye-witness to the incident, deposed before court that KL-6-6096 jeep driven by the 4[th] respondent in a rash and negligent manner, dashed against the motorcycle ridden by the appellant. According to him, the jeep driven by the 4[th] respondent came through the wrong side. Learned counsel for the Insurer contended that RW-2 was only a Mahazar witness in the criminal case registered against the appellant, and he was not cited as an Occurrence Witness. Only to save the appellant from his liability to compensate the legal heirs of the deceased, he is supporting the appellant, saying that he happened to see the incident and it was due to the rash and negligent driving of the jeep by the 4[th] respondent. 10. There is oral evidence of RWs 1 and 2 that the jeep driver was negligent and it came through the wrong side and dashed against the motorcycle, in which Sri.Surendran was pillion riding. The Scene Mahazar would say that the place of incident was on the northern side of the road. The jeep proceeding towards west was not supposed to go to the northern side, and if so, it was on the wrong side. So there is some force in the deposition of RWs 1 and 2, that while the appellant was riding his motorcycle through the MACA 1825 of 2011 7 northern side of the road, which was its proper side, the jeep coming from opposite direction came to the wrong side and dashed against the motorcycle. There is nothing to suggest that, the jeep was in a stationary condition when the accident occurred. If the jeep was keeping its proper side, there was no chance for the motorcycle to dash against that jeep, if the accident occurred at a place as stated in the Scene Mahazar. So a strong doubt is created in the mind of Court regarding the manner in which the accident occurred. Form the damages found on the vehicles, it is clear that it was a head on collision between those two vehicles. If the accident was on the northern side of the road, there need not be any hesitation to say that the jeep came to the wrong side and the accident occurred. If so, there is nothing to disbelieve the testimony of RWs 1 and 2. So even if Ext.A6 Charge Sheet is in the name of the appellant, the oral testimony of RWs 1 and 2 coupled with Ext.A2 Scene Mahazar is sufficient to say that the accident occurred due to the rash and negligent driving of the jeep by the 4[th] respondent. So the finding of the learned Tribunal that the accident occurred due to the rash and negligent riding of the motorcycle by the appellant is liable to be set aside. MACA 1825 of 2011 8 11. It is true that the motorcycle ridden by the appellant was having an act only policy and it will not cover a pillion rider. The jeep driven by the 4[th] respondent was insured with the 5[th] respondent. Since the accident occurred due to the rash and negligent driving of the jeep by the 4[th] respondent, who is the owner-cum-driver of the jeep, the Insurance Company is liable to indemnify him. 12. Regarding the compensation awarded by the Tribunal, there is no dispute or challenge from either side. So that part of the award need not be disturbed. The direction given by the Tribunal that the appellant herein shall deposit the award amount is hereby set aside, and the 5[th] respondent herein, who is New India Assurance Company, is directed to deposit the award amount of Rs.3,61,800/- (Rupees Three Lakh Sixty One Thousand and Eight Hundred only) in the Bank Account of respondents 1 and 2, who are the legal heirs of deceased Surendran, in equal share, with interest @ 7.5% per annum from 27.08.2005 till the date of realisation, after deducting Rs.50,000/- awarded under Section 140 of the Motor Vehicles Act, within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of MACA 1825 of 2011 9 the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of respondents 1 and 2 towards Tax, balance court fee and legal benefit fund. The appeal is allowed accordingly. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/06.06.2023.