Kerala High Court
United India Insurance Co.Ltd vs K.K.Sajeev & Others on 2 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 2ND DAY OF AUGUST 2021/11TH SRAVANA, 1943
M.A.C.A. NO.2378 OF 2009
(AGAINST THE COMMON AWARD IN OP(MV)No.2045/2002 DATED
22.1.2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,
PERUMBAVOOR, ERNAKULAM)
APPELLANT/3RD RESPONDENT IN THE O.P:
UNITED INDIA INSURANCE CO. LTD.,
KUMBAKONAM, REP. BY ITS AUTHORIZED SIGNATORY,
UNITED INDIA INSURANCE CO.LTD.,
REGIONAL OFFICE, ERNAKULAM, SARANYA,
HOSPITAL ROAD, KOCHI-11.
BY ADV SMT.RAJI T.BHASKAR
RESPONDENTS/CLAIMANTS&RESPONDENTS 1, 2, 4 & 5 IN O.P:
1 SULOCHANA M.T, W/O.LATE SUDHAKARAN,
THOTTUPURAM HOUSE, KURICHILAKODU,
KODANADU P.O., PERUMBAVOOR (VIA),
ERNAKULAM DISTRICT.
2 SUDHEESH T.S., S/O.LATE SUDHAKARAN
THOTTUPURAM HOUSE, KURICHILAKODU,
KODANADU P.O., PERUMBAVOOR (VIA),
ERNAKULAM DISTRICT.
3 SUDHA T.S. D/O.LATE SUDHAKARAN
THOTTUPURAM HOUSE, KURICHILAKODU,
KODANADU P.O., PERUMBAVOOR (VIA),
ERNAKULAM DISTRICT.
4 AYYASWAMY, MAIN ROAD, MALAYAPPANALLUR,
SIVAPURAM, SAKKOTTAI P.O., KUMBAKONAM,
TAMIL NADU.
5 K.RAJENDRAN S/O.S.KRISHNASWAMY,
25 B, KUMARAN STREET, KUMBAKONAM, TAMIL NADU.
M.A.C.A. Nos. 2378 of 2009 & 2394 of 2009
2
6 DR.P.KUNHAN, 4/367, S/O.RAMANKUTTY VAIDYAR,
PRADEEP BHAVAN, PERUVAYAL, CALICUT, KERALA.
7 THE ORIENTAL INSURANCE CO. LTD.,
BRANCH OFFICE, KINGSWAY BUILDING,
MANNOOR ROAD JUNCTION, CALICUT, KERALA.
BY ADVS.
SRI.P.JACOB MATHEW
SRI.ANIL S.RAJ
SRI.ANTONY VARGHESE
SRI.MATHEWS JACOB SR.
SMT.K.N.RAJANI
SRI.RADHIKA RAJASEKHARAN P.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 02.08.2021 ALONG WITH MACA No.2394/2009, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A. Nos. 2378 of 2009 & 2394 of 2009
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 2ND DAY OF AUGUST 2021/11TH SRAVANA, 1943
M.A.C.A No.2394 OF 2009
(AGAINST THE COMMON AWARD IN OP(MV)No.2102/2002 DATED
22.1.2009 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,
PERUMBAVOOR, ERNAKULAM)
APPELLANT/3RD RESPONDENT IN THE O.P:
UNITED INDIA INSURANCE CO.LTD.,
KUMBAKONAM, REPRESENTED BY ITS AUTHORIZED
SIGNATORY, UNITED INDIA INSURANCE CO.LTD.,
REGIONAL OFFICE, ERNAKULAM, SARANYA,
HOSPITAL ROAD, KOCHI-11
BY ADV SMT.RAJI T.BHASKAR
RESPONDENTS/CLAIMANT & RESPONDENTS 1, 2, 4 & 5 IN O.P:
1 K.K.SAJEEV, S/O.KRISHNANKUTTY,
KANDAMTHANATH HOUSE, VADAKKAMPILLY, KODANADU.
2 K.RAJENDRAN, S/O.S.KRISHNASWAMY
25B, KUMARAN STREET, KUMBAKONAM, TAMIL NADU.
3 AYYASWAMY, MAIN ROAD,
MALAYAPPANALLUR, SIVAPURAM, SAKKOTTAI P.O.,
KUMBAKONAM, TAMIL NADU.
4 DR.P.KUNHAN, 4/367, S/O.RAMANKUTTY VAIDYAR,
PRADEEP BHAVAN, PERUVAYAL, CALICUT, KERALA.
5 THE ORIENTAL INSURANCE CO.LTD.,
BRANCH OFFICE, KINGSWAY BUILDING, MANNOOR ROAD
JUNCTION, CALICUT, KERALA.
M.A.C.A. Nos. 2378 of 2009 & 2394 of 2009
4
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SRI.V.K.GOPALAKRISHNA PILLAI
OTHER PRESENT:
ADV. MATHEW P. JACOB - RESPONDENTS
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 02.08.2021 ALONG WITH MACA No.2378/2009, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A. Nos. 2378 of 2009 & 2394 of 2009
5
C.S.DIAS, J
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MACA Nos. 2378 of 2009 & 2394 of 2009
-----------------------------------
Dated : 2nd August, 2021
COMMON JUDGMENT
As the appeals arise out of the common award in O.P.
(MV)Nos.2045/2002 and 2102/2002 on the file of the Motor
Accidents Claims Tribunal, Perumbavoor, they are being
disposed of by this common judgment. The parties are, for the
sake of convenience, referred to as per the status in the original
petitions.
2. O.P.(MV)No.2045/2002: The petitioners had filed
the claim petition under Section 166 of the Motor Vehicles Act,
1988, claiming compensation on account of the death of Subash
(deceased), who was the son of the first petitioner and brother
of petitioners 2 and 3. The petitioners had stated that, while the
deceased was travelling in a Mahindra Jeep bearing
Registration No:KL-11/H-3075 from Peruvayal to Karur, when
M.A.C.A. Nos. 2378 of 2009 & 2394 of 2009
the jeep reached Coimbatore, a lorry bearing Registration
No.TN-Z/5535, owned by the 1st respondent and driven by the
2nd respondent, hit the jeep. The accident occurred due to the
negligence of the 2nd respondent. The lorry was insured with
the 3rd respondent. The 4th respondent was the owner of the jeep
and the 5th respondent was the insurer of the jeep. The deceased
was an artist-cum-painter by profession and earning a monthly
income of Rs.6,000/-. The petitioners were dependant on the
deceased. The petitioners claimed a total compensation of
Rs.10,80,000/- from the respondents, but limited it to
Rs.6,00,000/-.
O.P.(MV)No.2102/2002 :The petitioner had filed the
claim petition under Section 166 of the Motor Vehicles Act,
claiming compensation on account of the injuries that he
sustained in the very same accident, as narrated in O.P.
(M.V)No.2045/2002. The petitioner contended that he suffered
100% disability. He was a skilled artistic painter and earning a
M.A.C.A. Nos. 2378 of 2009 & 2394 of 2009
monthly income of Rs.15,000/-. He also stated that, the
accident occurred on account of the negligence on the part of
the 2nd respondent, who drove the lorry in a negligent manner.
He claimed a total compensation of Rs.20,56,000/- from the
respondents, but limited it to Rs.12,00,000/-.
3. The respondents 1 and 2 did not contest the
proceedings and were set ex-parte.
4. The 3rd respondent-the insurer of the lorry filed
separate written statements in both the claim petitions,
admitting that the lorry had a valid insurance coverage.
However, it was contended that, the accident occurred on
account of the negligence on the part of the driver of the jeep. It
was also stated that the driver of the lorry-the 1st respondent did
not hold an effective driving licence or badge. The 3 rd
respondent disputed the age, occupation and income of the
deceased as well as the injured petitioner in O.P.
(M.V)No.2102/2002.
M.A.C.A. Nos. 2378 of 2009 & 2394 of 2009
5. The 5th respondent-insurer of the jeep filed written
statements in both the original petitions, disputing the
negligence on the part of the driver of the jeep. It was
contended that the accident occurred solely on account of the
negligence of the driver of the lorry-1st respondent. Hence the
5th respondent prayed that they may be exonerated from
payment of any liability.
6. During the pendency of the proceedings, the
petitioners in O.P.(M.V.)No.2045/2002 filed
I.A.No.4890/2006 to direct respondents 1 and 2 to produce the
driving licence and badge of the 1st respondent. Despite the
order dated 4.10.2001, the respondents 1 and 2 did not produce
the documents.
7. The petitioners in both the original petitions
examined PWs 1 to 5 and marked Exts.A1 to A11 and Exts.X1 to
X1(c) in evidence. The 3rd respondent produced and marked
Ext.B1 insurance policy in evidence.
M.A.C.A. Nos. 2378 of 2009 & 2394 of 2009
8. The Tribunal, after considering the pleadings and
materials on record, allowed O.P.(M.V.)No.2045/2003 by
permitting the petitioners to realise an amount of Rs.2,74,250/-
from respondents 1 to 3 with interest and costs. Pursuant to the
order dated 2.3.2009, in I.A.No.1014/2009, the Tribunal
permitted the 3rd respondent to recover the compensation
amount from the respondents 1 and 2 in O.P.
(M.V.)No.2045/2002. In O.P.(M.V.)No.2102/2002, the
Tribunal permitted the petitioner to realise an amount of
Rs.2,48,810/- from the respondents. The 3rd respondent was
directed to pay the said amount.
9. Aggrieved by the common award passed by the
Tribunal in the above cases, the 3 rd respondent insurer has filed
M.A.C.A.No.2394/2009 as against the order in O.P.
(M.V.)No.2102/2002 and M.A.C.A.No.2378/2009 as against
the order in O.P.(M.V.)No.2045/2002.
10. The principal ground of challenge in the appeals are
M.A.C.A. Nos. 2378 of 2009 & 2394 of 2009
that, as there was a collision between two vehicles, i.e., lorry
and jeep, the Tribunal ought to have held the drivers of both the
vehicles are guilty for contributory negligence. Moreover,
subsequent to the impugned award, the Motor Accidents Claims
Tribunal, Kozhikode has passed an award in O.P.(M.V.)Nos.639
and 678/2004 holding that it was the driver of the jeep who was
negligent in causing the accident. In M.A.C.A.No.2394/2009, it
is also contended that the Tribunal failed to provide recovery
rights to the appellant to recover the compensation amount
from respondents 1 and 2.
11. As per Ext.A4-charge-sheet, filed by the
Avinashypalayam Police Station, Coimbatore, it is established
that the accident occurred on account of the negligence of the 1 st
respondent, who drove the lorry in a negligent manner. The 1 st
respondent was the owner of the lorry and the 3 rd respondent
was the insurer of the lorry. Respondents 1 to 3 have not let in
any contra evidence to discredit the charge-sheet.
M.A.C.A. Nos. 2378 of 2009 & 2394 of 2009
12. A Division Bench of this court in New India
Assurance Company Limited v. Pazhaniammal
[2011(3) KLT 648] has held that the production of charge-
sheet/final report is prima facie sufficient evidence of the
negligence for the purpose of the claim petition filed under
Section 166 of the Motor Vehicles Act, 1988. The charge-sheet
can be accepted as evidence of negligence against the accused-
driver. If any party disputes the charge-sheet, then the burden
is on such party to adduce oral evidence and discredit the
charge-sheet, only then will the charge-sheet fall into a pale of
insignificance.
13. Admittedly, in the instance case, the respondents 1 to
3 have not let in any contra evidence to discredit the charge-
sheet. Therefore, the findings of the Tribunal that it was the 1 st
respondent who drove the lorry in a negligent manner and
caused the accident as found in Ext.A4 charge-sheet is perfectly
in-consonance with the law laid down by this court in
M.A.C.A. Nos. 2378 of 2009 & 2394 of 2009
Pazhaniammal (supra). I do not find any error or illegality
in the Tribunal arriving at the said finding.
14. Now, adverting to the next contention with regard to
the assertion of the learned counsel for the appellant that the
Motor Accidents Claims Tribunal, Kozhikode, had subsequent
to the passing of the impugned awards, found that it was a
driver of the jeep who was responsible for the accident as per
the common award in O.P.(M.V.)Nos.639 and 678/2004.
15. Other then for the assertion that such a common
award has been passed, absolutely no material has been placed
on record to believe and accept the said assertion. It is also not
clear whether the proceedings before the above Tribunal was
between the same parties in connection with the same accident.
For the want of materials, and also the fact that Ext.A4 charge-
sheet clearly establishes that it was the 2 nd respondent who was
negligent in causing the accident, I am of the definite opinion
that the said contention is untenable in law and only to be
M.A.C.A. Nos. 2378 of 2009 & 2394 of 2009
rejected in limine.
16. The next point that is urged is with regard to granting
the appellant recovery rights in O.P.(M.V.)No.2102/2002.
17. It is seen that the Tribunal has not granted recovery
rights to the appellant in O.P.(M.V.)No.2102/2002. Although
the appellant had taken up such a contention in the written
statement that the 1st respondent did not hold a valid driving
licence, the appellant had not filed an application before the
Tribunal, seeking a direction to the 1st respondent to produce
his licence and badge to prove its assertion in the written
statement, as was done in O.P.(M.V.)No.2045/2002.
Therefore, the 1st respondent was not called upon to produce the
documents. Similarly, the 3rd respondent did not mount the box
and let in any oral evidence to prove the assertion that the 1 st
respondent did not hold the valid driving licence. In such
circumstances, I do not find any error in the Tribunal not
awarding the appellant the right to pay and recover the
M.A.C.A. Nos. 2378 of 2009 & 2394 of 2009
compensation from respondents 1 and 2, as there is no material
to prove that the 2nd respondent had violated the policy
conditions. In such circumstances, I decline to grant the
appellant the right to pay and recover the compensation
amount in O.P.(M.V.)No.2102/2002.
In the result, the appeals are dismissed. The parties shall
bear their respective costs.
Sd/-
C.S.DIAS, JUDGE
ss
