Vinod v. Thomas Mathew @ Shibu Natannoor Veedu and United India Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` FRIDAY, THE 16[TH] DAY OF DECEMBER 2022 / 25TH AGRAHAYANA, 1944 ``` ## **`MACA NO. 1343 OF 2013`** ``` AGAINST THE ORDER/JUDGMENT IN OPMV 162/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MAVELIKKARA DATED 12/06/2013 ``` ## **`APPELLANT/PETITIONER:`** ``` VINOD AGED 43 YEARS S/O.PADMANABHAN ACHARY, RAJAN BHAVANAM, THAMALLAKAL P.O., HARIPAD. BY ADVS.SRI.M.V.THAMBAN SRI.B.BIPIN SRI.R.REJI SMT.THARA THAMBAN ``` ## **`RESPONDENTS/RESPONDENTS 1 & 2:`** - `1 THOMAS MATHEW @ SHIBU NATANNOOR VEEDU, THAMALLACAKAL P.O., KUMARAPURAM VILLAGE, ALAPPUZHA DISTRICT, PIN - 690 548.` - `2 THE UNITED INDIA INSURANCE CO. LIMITED REPRESENTED BY ITS DIVISIONAL MANAGER, KAYAMKULAM, PIN - 690 502.` - `R2 BY ADV.THOMAS MATHEW NELLIMOOTTIL, SC` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 16.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** MACA No.1343 of 2013 -:2:- ## MARY JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A No. 1343 of 2013 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of December, 2022 ## JUDGMENT This appeal is filed challenging an award passed by Motor Accident Claims Tribunal, Mavelikkara (for short ‘the Tribunal’) on 12.06.2013 in OP (MV) No.162/2005. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and respondents 1 and 2 in accordance with their status in the above Original Petition. 2. The petitioner was allegedly travelling at 3 p.m. on 29.02.2004 in an autorickshaw bearing registration No.KL-4M/8853 from North to South through ThamallakkalHaripad Road and it capsized due to the rash and negligent driving in excess speed by its driver. Petitioner sustained serious injuries and was rushed to Medical College Hospital, Alappuzha and therefrom was shifted to Government Hospital, Haripad for MACA No.1343 of 2013 -:3:- better medical management. The Original Petition abovementioned was filed claiming a sum of Rs.2,10,300/- as compensation from respondents 1 and 2 jointly and severally. 3. The 2[nd] respondent had filed written statement admitting insurance coverage for the autorickshaw allegedly involved in the accident with them, as on date of accident. It was contended that the 1[st] respondent was driving the autorickshaw in a very careful manner in normal speed and not liable for the motor accident, that the petitioner had sustained injuries in some other manner and that a private complaint was filed by the petitioner after a period of three months and 9 days from the date of the alleged accident by incorporating a known vehicle as the offending vehicle on influencing the police. 4. Evidence in the case consists of the oral evidence tendered by the petitioner as PW1 and Exts.A1 to A10. The respondents failed to adduce any evidence. On appreciation of the oral as well as the documentary evidence the Tribunal found that the petitioner miserably failed to prove negligence on the part of the driver of the autorickshaw as pleaded by him in the MACA No.1343 of 2013 -:4:- Original Petition. In view of the above finding, the Original Petition seeking compensation filed under Section 166 of the MV Act was dismissed. Aggrieved thereby the petitioner is now before this Court in the proceedings on hand challenging the same. 5. Sri.M.V. Thamban, the learned counsel for the appellant has contended that the finding of the Tribunal that the petitioner failed to establish the alleged accident is against the evidence on record. According to him, the petitioner had marked copies of FIR with FIS, vehicle mahazar and scene mahazar, wherefrom the involvement of the autorickshaw bearing registration No.KL-4M/8853 in the alleged accident is brought to light. It is also established from the Final Report marked in evidence as Ext.P6 in the case on hand that the driver of the autorickshaw was chargesheeted for rash and negligent driving and thereby causing the motor accident. It is contended in the context on hand that the Tribunal went wrong in holding that the petitioner failed to prove negligence of the driver of the autorickshaw who MACA No.1343 of 2013 -:5:- stands arrayed as the 1[st] respondent in the Original Petition on hand. 6. Reliance is also placed on New India Assurance Co.Ltd. v. Pazhaniammal [2011 (3) KLT 648] to contend that the chargesheet laid in a crime registered on the basis of the motor accident is prima facie proof of negligence. According to him, since the chargesheet stands marked in evidence as Ext.A6, the Tribunal ought to have found negligence of the 1[st] respondent as the cause of the motor accident and awarded compensation to the petitioner. According to him, the Tribunal went wrong in dismissing the Original Petition seeking compensation stating that the petitioner failed to prove the accident and negligence as pleaded by him. 7. The learned Standing Counsel for the 2[nd] respondent insurer has contended that the Tribunal is perfectly justified in dismissing the Original Petition seeking compensation and declining to grant compensation in favour of the petitioner. According to him, the falsity of the claim is well indicated from MACA No.1343 of 2013 -:6:- the documentary evidence on record, more particularly Exts.A1, A2, A3, A4 and A5. 8. In the backdrop of the rival arguments advanced by the respective counsel, the documentary evidence on record is scrutinised by this court to find out any falsity involved. Ext.A2 the FIR registered on 09.06.2004 on the basis of the First Information Statement lodged by the petitioner is also appended to Ext.A2 and the same was found lodged on 09.06.2004. The accident was allegedly occurred at 3 p.m. on 29.02.2004 and immediately thereafter, the petitioner was rushed to Medical College Hospital, Alappuzha and therefrom was transported to Government Hospital, Haripad on the very same day for better management. 9. An accident register cum wound certificate was prepared at the hospital on that day itself and the petitioner is reported to have sustained fracture on right Fibula and lacerated wounds 6X1 cm on left leg and 2X1 cm on left knee. But in the column meant for reporting the history of the accident it was mentioned as capsizing of an Autorickshaw near Thamallakkal at 3 p.m. on MACA No.1343 of 2013 -:7:- 29.02.2004. It is not found reported in the accident register cum wound certificate that the petitioner was brought to the hospital in an unconscious state. The discharge card issued from Government Hospital, Haripad was marked in evidence as Ext.A8 and it discloses inpatient treatment from 29.02.2004 to 28.03.2004. As part of treatment, POP slab was put followed by POP Cast. Cleaning and dressing of the wounds and medication were advised. At the time of discharge he was also advised to review after 20 days. On 19.04.2004 the plaster was removed and the petitioner was directed to have medicines for 10 more days. Ext.A9 is the medical certificate issued by an Orthopedic Surgeon associated with Government Hospital, Haripad wherein it was certified that the petitioner is fit to resume normal duty from 30.08.2004. The cause of the accident was stated in the accident register cum wound certificate as ‘auto capsized’ while travelling. But in the Original Petition seeking compensation, the accident alleged was described as, hit of the autorickshaw against an electric post situated on the eastern side of the road. In Ext.A2 FIS also it is stated that the autorickshaw in which the MACA No.1343 of 2013 -:8:- petitioner was travelling hit against an electric post due to driving in excess speed and in a rash and negligent manner. Petitioner had also mounted the box to depose as PW1. 10. In the chief examination petitioner has spoken that the autorickshaw in which he was travelling was capsized on hitting against an electric post. During cross examination also he maintained the same stand. Concluding the investigation, a Final Report was laid which is marked in evidence as Ext.A6, wherein the driver of the autorickshaw was chargesheeted by the police for offences punishable under Sections 279, 337 and 338 IPC. The accident was allegedly occurred due to capsizing of an autorickshaw in which the petitioner was travelling due to its excessive speed, following a hit against an electric post. The allegation of the 2[nd] respondent was that the petitioner has sustained injuries in some other manner and not in the motor accident alleged. According to him, the reasons for advancing such an argument was the belated lodging of the FIS. The FIS was lodged after 3 months and 9 days from the date of the motor accident. Immediately after the accident, the petitioner was MACA No.1343 of 2013 -:9:- taken to Medical College Hospital, Alappuzha where the accident register cum wound certificate was prepared. The reason for not reporting the accident to the police from the hospital wherein the petitioner was undergoing treatment is not stated by the petitioner while being examined as PW1. He also failed to state the reason for informing the police about the accident belatedly. 11. In the wound certificate prepared on 29.02.2004 the alleged cause was spoken by the petitioner himself as capsizing of the autorickshaw in which he was travelling. The petitioner was examined as PW1. It was revealed from his testimony during cross examination that the autorickshaw turned to the eastern side in high speed and thereby hit against an electric post and capsized. It is further stated that he was thrown out from the autorickshaw and sustained injuries. According to him, the driver of the autorickshaw did not sustain any injuries. According to him, he was taken to the hospital by the local people and the driver also accompanied him. 12. Ext.A6 Final Report was laid in a private complaint lodged before the Magistrate and forwarded to the police. A MACA No.1343 of 2013 -:10:- Crime was registered and investigation was commenced. Following the investigation, a Final Report chargesheeting the driver of the autorickshaw was filed. It is pertinent to note that the private complaint was filed before the Magistrate Court, three months and 9 days after the accident. Though the petitioner was admitted at the Government Hospital, Haripad on 29.02.2004 itself and an accident register cum wound certificate was prepared on the very same day, information regarding the accident was not given to the police from the hospital. Why the matter was not informed to the police from the hospital is not known. It is not found from the wound certificate marked in evidence as Ext.A5 that the petitioner was brought to the hospital by local people. Petitioner was not reported unconscious or disoriented. Therefore there is every reason for taking a view that the petitioner himself was the informant about the cause of the accident at the hospital. According to the petitioner, driver was also accompanying him to the hospital. If the autorickshaw actually hit against an electric post due to its excessive speed, as spoken by the petitioner, there is only very MACA No.1343 of 2013 -:11:- remote chance for the driver sitting in the front seat to be saved without being injured. The autorickshaw must have also sustained damages on its front part. But the report of inspection of the Autorickshaw is not forthcoming in evidence. True that the crime was registered after three months and 9 days of the alleged occurrence. Therefore, the damages, if any caused to the Autorickshaw might have been repaired. If that be so, there must be receipts for payment of money at the Workshop for the repair service availed corresponding to the date of accident. Not even a whisper from the petitioner or any material relating to that aspect is forthcoming in evidence. 13. The above are the circumstances creating doubt about the occurrence alleged. An Autorickshaw was introduced into the picture firstly in the private complaint filed before the Court. Based on the private complaint that the final report chargesheeting a person as driver of the autorickshaw for rash and negligent driving was laid. All the medical documents marked in evidence are photocopies. What happened to the originals is not stated. True that chargesheet normally laid by a MACA No.1343 of 2013 -:12:- court can be relied on as prima facie evidence of negligence. But, in the case on hand when materials to indicate the involvement of the autorickshaw itself are not available and the vehicle and its driver having been introduced into picture only in the private complaint filed after three months and 9 days to set the law in motion, the final report can only be viewed as a creation of the police on colluding with the petitioner. 14. In the aforesaid circumstances this Court finds no reason to interfere with the impugned award. Claim of the petitioner has been discarded correctly by the Tribunal. Interference is totally unwarranted. Appeal fails for the above reasons and is dismissed. Sd/- MARY JOSEPH JUDGE ttb