Kerala High Court
Lekshmy And Others vs Krishna Pandi And Others on 14 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
MACA NO. 530 OF 2010
AGAINST THE JUDGMENT IN OP(MV) 952/2003 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL ,NEYYATTINKARA, THIRUVANANTHAPURAM
APPELLANTS/APPLICANTS:
1 LEKSHMY, W/O.SIVASUBRAMANIAN @ MOHAN,
47/W-12 C, THALIYALPURAM STREET, VADASSERY,,
NAGERCOIL, NOW RESIDING AT MURIYANKARA, ROADARIKATHU
VEEDU, PARASSALA.P.O.,, THIRUVANANTHAPURAM DISTRICT.
2 ARUL SIVABALAN 2 YEARS (MINOR)
S/O. SIVASUBRAMANIAN @ MOHAN, REPRESENTED BY HIS
MOTHER LAKSHMY OF DO-DO-
3 CHEMBAKAM AGED 53 YEARS,
W/O. BALAKRISHNAN OF DO-DO-
4 BALAKRISHNAN AGED 60 YEARS
S/O. SIVASUBRAMANIAN PILLAI, DO-DO-
BY ADV SRI.R.GOPAN
RESPONDENT/RESPONDENTS:
1 KRISHNA PANDI, S/O.THIRUMAL,
15-94, POOJAPURAVILA, AGASTHEESWARAM.P.O.,,
KANYAKUMARI DISTRICT.
2 CHUDALAYANDI S/O. UMAYORU VAGAN PILLAI
RAILWAY ROAD, THEVALAI, THEVALAI.P.O., KANYAKUMARI,
DISTRICT.
MACA NO. 530 OF 2010
2
3 THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD., THIRUVANANTHAPURAM.
BY ADV SRI.AGI JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 14.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA NO. 530 OF 2010
3
JUDGMENT
The appellants were the petitioners in O.P (MV)
No.952/2003 on the file of the Motor Accidents Claims
Tribunal, Neyyattinkara. The respondents in the appeal
were the respondents before the Tribunal.
2. The brief facts relevant for the determination of
the appeal, are: the appellants had filed the claim petition
under Section 166 of the Motor Vehicles Act,1988 (for
brevity referred to as "Act") claiming compensation on
account of the death of [email protected]
(deceased) - the husband of the 1st appellant, the father of
the 2nd appellant and the son of the appellants 3 and 4 . It
was their case that on 3.4.2003 while the deceased was
walking along the road in front of S.P.Office, Nagercoil, he
was knocked down by an autoricishaw bearing Reg.No.TN-
74-D-9865 driven by the 2nd respondent in a rash and
negligent manner. The deceased sustained serious injuries
MACA NO. 530 OF 2010
and was taken to Nagarajan Hospital, Nagercoil and then
shifted to District Head Quarters Hospital, Nagercoil. He
succumbed to the injuries on 7.4.2003. The deceased was
a flower vendor and earning a monthly income of
Rs.5,000/-. The deceased was the sole bread-winner of the
family and the appellants were dependents on him. The
autorickshaw was owned by the 1st respondent and
insured with the 3rd respondent. Hence, the appellants
claimed an amount of Rs.9,34,000/- from the respondents,
which was limited to Rs.7,50,000/-.
3. The respondents 1 and 2 did not contest the
proceedings and were set ex parte.
4. The 3rd respondent - the Insurance Company -
filed a written statement, inter alia, contending that the
appellants were not residing in the address shown in the
cause title. The autorickshaw bearing Reg. No.TN-74-D
-9865 was not involved in the accident. The entire
allegations in the claim petition were concocted in an
MACA NO. 530 OF 2010
unscrupulous attempt to grab money from the insurance
company. On enquiry by the 3rd respondent, it was learnt
that another autorickshaw, which did not have a valid
insurance policy, was involved in the accident. Therefore,
the appellants planted the present vehicle to unlawfully
enrich themselves. Hence the claim petition is to be
dismissed.
5. The 1st appellant was examined as PW1 and Exts.
A1 to A5 were marked through her. The 3 rd respondent
produced and marked Exts.B1 and B2 in evidence.
6. The Tribunal, after analysing the pleadings and
materials on record, by the impugned award dismissed the
claim petition holding that the appellants have not proved
that the accident was caused by the autorickshaw bearing
Reg. No. TN-74D 9865 as alleged in the claim petition. It
was also found that the appellants have deliberately not
produced the final report prepared by the Police.
7. Aggrieved by the impugned award, the
MACA NO. 530 OF 2010
petitioners/appellants are in appeal.
8. Heard the learned counsel appearing for the
appellants/petitioners and the learned counsel appearing
for the 3rd respondent - insurance company.
9. The sole question that arises for consideration in
the appeal is whether the impugned award passed by the
Tribunal is sustainable in law or not?
10. The specific case of the appellants in the claim
petition was that on 3.4.2003 while the deceased was
walking on the road, an autorickshaw bearing Reg. No.TN-
74D-9865 driven by the 2nd respondent hit the deceased
and he fell unconscious. He was taken to the Nagarajan
Hospital, Nagercoil and, thereafter, to the District
Headquarters Hospital, Nagercoil, where he lost his life on
7.4.2003. It was averred that the autorickshaw belonged
to the 1st respondent and was insured with the 3 rd
respondent.
11. The appellants produced Ext.A1 F.I.R which was
MACA NO. 530 OF 2010
registered on 7.4.2003 and submitted before the Court of
the Judicial Magistrate-III, Nagercoil. The information
was given to the Police by one Muthukaruppan, who
claimed to be the younger brother of the deceased. The
informant told the Police that while he and the deceased
were walking along the road, an autorickshaw came from
the rear side and knocked down the deceased, who fell
unconscious and was taken to the Nagarajan Hospital,
Nagercoil. However, , the autorickshaw driver drove away
the vehicle. Therefore, the registration number of the
vehicle could not be noted. According to him, the
deceased succumbed to the injuries on 7.4.2003 at 7.15
p.m. He also stated that after the accident on 3.4.2003,
the father and relatives of the deceased went to the
Nagarajan Hospital on the following day and as advised
the deceased was shifted to the Medical College Hospital,
Kottar. Then, the deceased passed away on 7.4.2003 and
the F.I.R was lodged.
MACA NO. 530 OF 2010
12. The 1st appellant - the wife of the deceased - who
was examined as PW1, gave a totally contradictory
version in her oral testimony. She deposed that it was
while she and the deceased were walking along the road
an autorickshaw knocked down the deceased and he
sustained injuries and he lost his life on 7.4.2003. She did
not mention anything about Muthukaruppan, the first
informant. Similarly, in Ext.A3 post-morterm certificate
the cause of death was mentioned as head injury and there
is no mention about a road traffic incident as stated in
Ext.A1 F.I.R.
13. The Tribunal on a threadbare analysis of the
pleadings and materials on record, particularly after
evaluating the oral testimony of PW1 - who claimed to be
an eye-witness to the incident, found that there were
contradictions and inconsistencies in the testimony of PW1
when read with the materials on record.
14. The most glaring aspect in the whole case is that
MACA NO. 530 OF 2010
despite the Tribunal affording the appellants an
opportunity to produce the final report filed by the Police,
the same was withheld from the Tribunal.
15. Even at the time of hearing of the appeal, this
Court had orally directed the appellants to produce the
final report, so as to ascertain the actual cause of the
accident. It was submitted by the learned counsel for the
appellants that as the appellants are illiterate persons, it
would be difficult for them to produce the said document.
16. It is to be noted that PW1 gave evidence on
31.1.2009 i.e, nearly after six years after the accident.
She had all the time in the world to have obtained the final
report and produced the same before the Tribunal, so that
the real cause of death could have been ascertained. For
reasons best known to the appellants, the said cardinal
document was withheld from the Tribunal, that is why the
Tribunal has rightly held ' it was grouping in the dark' to
ascertain the actual cause of the accident.
MACA NO. 530 OF 2010
17. On a total re-appreciation of the pleadings and
materials on record, particularly the fact that the final
report/charge sheet, the best piece of evidence, has been
withheld and there are contradictions and inconsistencies
in the materials on record, I do not find any error or
illegality in the finding of the Tribunal, that the accident
was not caused on account of the involvement of
autorickshaw bearing Reg. No.TN-74D-9865.
In the result, I confirm the findings of the Tribunal and
dismiss the appeal. The parties shall bear their respective
costs.
ma/14.7.2021 Sd/- C.S.DIAS, JUDGE
