Kerala High Court
Icici Lombard General Insurance ... vs Aboobacker on 6 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943
MACA NO. 807 OF 2014
AGAINST THE AWARD DATED 9.12.2013 IN OPMV 526/2010 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL, OTTAPPALAM
APPELLANT:6TH RESPONDENT
M/S.ICICI LOMBARD GENERAL INSURANCE CO. LLTD.
KANNANKORG ESTATE, 3RD FLOOR, SHANMUGHAPURAM ROAD, MARINE
DRIVE, ERNAKULAM, PIN 670 001.
BY ADV SRI.R.AJITH KUMAR (128/84)
RESPONDENTS:CLAIMANTS & RESPONDENTS 1 TO 5 & 7
1 ABOOBACKER, AGED 57,
S/O.MAMMUTTY,KUNNATHEPEEDIKAKKAL, NELLAYA,CHERPLASSERY 679
335
2 PATHUMMA (DIED)
W/O.ABOOBACKER, KUNNATHEPEEDIKAKKAL, NELLAYA,CHERPLASSERY 679
335
3 ABDUL KHADER, AGED 50
S/O.ABOOBACKER,KUNNATHEPEEDIKAKKAL, NELLAYA,CHERPLASSERY 679
335
4 UMMER, AGED 48
S/O.ABOOBACKER, KUNNATHEPEEDIKAKKAL, NELLAYA, CHERPLASSERY
679 335
5 RUKHIA, AGED 46
D/O.ABOOBACKER, KUNNATHEPEEDIKAKKAL, NELLAYA, CHERPLASSERY
679 335
6 SAKEENA, AGED 45 YEARS,
D/O.ABOOBACKER, KUNNATHEPEEDIKAKKAL, NELLAYA, CHERPLASSERY
679 335
7 ASIA, AGED 43 YEARS
D/O.ABOOBACKER, KUNNATHEPEEDIKAKKAL, NELLAYA,CHERPLASSERY
679 335
MACA NO. 807 OF 2014 :2:
8 SEENATHUL FOUSIA, AGED 41
D/O.ABOOBACKER, KUNNATHEPEEDIKAKKAL, NELLAYA,CHERPLASSERY
679 335
9 AMINA, AGED 37 YEARS
D/O.ABOOBACKER, KUNNATHEPEEDIKAKKAL, NELLAYA, CHERPLASSERY
679 335
10 SHAMEER ALI, AGED 39 YEARS
S/O.ABOOBACKER, KUNNATHEPEEDIKAKKAL, NELLAYA,CHERPLASSERY
679 335
11 M.P.GOPINATH, AGED 40 YEARS
S/O.KUMARAN, MANNAPALLIYALIL HOUSE, MULAYANKAVU, KULUKKALLUR,
PALAKKAD 679 335
12 GOPALAN, AGED 43 YEARS
S/O.KOLAVAN, KANDANCHIRAVEEDU, MANALAYA
ANAMANGAD,PERINTHALANNA 679 322
13 THE ORIENTAL INSURANCE CO.LTD PATTAMBI 679 303
14 HAMSA, AGED 42 YEARS,
CHERODATH HOUSE, KUTHAMSSERY, ALUVA THOTTUMUGHAM, ERNAKULAM
683 101
15 SOMASUNDERAN, AGED 45 YEARS,
S/O.GOPALAKRISHNAN, MOORKATHE HOUSE, THRIKKADERI,OTTAPALAM
679 101
16 BABU, AGED 48 YEARS,
S/O.KOLAVAN, KONDANCHIRA HOUSE, MANALAYA PO,
ANAMANGADE,PERINTHALMANNA 679 322.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON
06.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
A.BADHARUDEEN, J.
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M.A.C.A.No.807 of 2014
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Dated this the 6th day of July, 2021
JUDGMENT
The original 6th respondent, ICICI Lombard GIC Ltd., the insurer of
the vehicle, viz. lorry bearing No.KL41A 3610, one among the two vehicles
involved in the accident, owned by the supplemental 7th respondent is the
appellant herein. The appellant/6th respondent has filed this appeal
impugning the correctness of the award passed by the M.A.C.T, Ottappalam
in O.P(MV) No.526/2010 dated 09.12.2013. The appellant/6th respondent is
aggrieved in the matter of finding negligence against the 5 th respondent
alone, ignoring the charge filed by the Police in this case marked as Ext.A6
against respondents 2 ad 5.
2. Brief facts of the case :
On 30.7.2009 at 6 p.m while the deceased was travelling in the
autorickshaw bearing Reg.No.KL9H 3949 through the proper side of the
road, on reaching the accident spot, a tipper lorry bearing Reg.No.KL41A
3610 driven by the original 5 th respondent in a rash and negligent manner
came from the opposite direction towing a bus bearing Reg.No.KL9K 3007
using clothes as rope to tow the bus, lost its control and hit the autorickshaw
when the rope was broken. Thereby a passenger in the autorickshaw one
K.P.Hamza sustained severe injuries. Immediately after the accident he was
taken to Al-Shifa hospital, Perinthalmanna. But it was only to confirm his
death. The accident occurred solely due to the negligent driving of the 2 nd
respondent, the driver of the bus and the 5th respondent, the driver of the
lorry, is the contention raised by the original petitioners. The 1 st respondent
is the owner and 3rd respondent is the insurer of the bus. Supplemental 7 th
respondent as well as respondents 5 and 6 are the insured, driver and insurer
of the tipper lorry. Supplemental 7th respondent is the owner of the tipper
lorry impleaded as per the order in I.A.351/2013. During the pendency of
the case, the 2nd petitioner mother died and supplemental petitioners 3 to 10
were impleaded as per order in I.A.2966 of 2013.
3. The learned counsel for the appellant/6th respondent submitted
that the Tribunal went wrong in finding that the 5 th respondent alone was
negligent ignoring the charge and by ignoring the settled position of law as
held in New India Assurance Co. Ltd. v. Pazhaniammal [2011 (3) KLT
648] wherein it was held that Police charge is primafacie sufficient evidence
of negligence for the purpose of claim under Section 166 of the Motor
Vehicles Act.
4. Per contra, the learned counsel for the 3rd respondent - insurer of
the other vehicle bus No.KL9K 3007 submitted that as per para.7 of
Pazhaniyammal's case (supra) it is permissible for the Tribunal to insist for
further evidence if the Tribunal finds doubt with regard to the Police charge.
However, the learned counsel conceded that no such course of action was
opted by the Tribunal.
5. On perusal of the award in para.7, it could be noticed that the
Tribunal was not inclined to accept Ext.A6 as such, where the drivers of
both vehicles were alleged to be negligent. Instead, the Tribunal perused the
scene mahazar forming part of Ext.A6 and it was found that the driver of the
lorry alone was negligent ignoring the charge sheet filed by the Police.
6. Coming to the crux of the dispute and going by the principle as
settled in Pazhaniyammal's case (supra), when there is Police charge
fastening negligence on the part of both vehicles, unless and until better
evidence to disbelieve the Police charge is adduced, the Tribunal could not
fasten liability towards one among the vehicles ignoring the Police charge.
In this matter, the Tribunal had not insisted production of evidence to
interdict the Police charge. Instead, the scene mahazar supporting Ext.A6
Police charge was read in segregation to fasten negligence on the part of the
5th respondent alone. Such a course of action is against the spirit of ratio in
Pazhaniyammal's case (supra). In view of the matter, the appellant/original
6th respondent's contention in this appeal is sustainable. Therefore, I am
inclined to set aside the finding of the Tribunal that the 5 th respondent alone
was negligent in the matter of accident and it is held that the 2 nd and 6th
respondents are negligent in causing the accident. Therefore, the respective
insurance companies, viz. the 6th respondent/appellant and the 3rd respondent
are liable to share the award passed by the Tribunal in the ratio 50:50.
7. It is submitted by the learned counsel for the 6 th respondent
insurance company that in view of the operation of the stay order granted in
this case, only statutory deposit of Rs.25,000/- was made and the remaining
amount is yet to be paid.
8. Since the finding of the Tribunal fastening liability on the 6 th
respondent alone was set aside, I direct the appellant/original 6th respondent
and the 3rd respondent Oriental Insurance Company to share the award
equally. It is specifically ordered that the appellant/6 th respondent shall
deposit Rs.6,373/- (Rupees Six thousand three hundred and seventy three
only) in the name of M.A.C.T, Ottappalam by way of the court fee payable
in this matter and the remaining amount forms part of 50% inclusive of the
interest granted by the Tribunal in the name of the petitioners, within two
months from today. It is ordered further that the remaining 50% of the
amount with interest shall be deposited by the 3 rd respondent in the name of
the petitioners within two months from today. On deposit, the petitioners
can realise the same forthwith.
The appeal is allowed accordingly.
Sd/-
(A.BADHARUDEEN, JUDGE)
rtr/
