Kerala High Court
The New India Assurance Company ... vs K.Beena And Others on 20 July, 2021
MACA NO. 336 OF 2008
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 20TH DAY OF JULY 2021 / 29TH ASHADHA, 1943
MACA NO. 336 OF 2008
AGAINST THE JUDGMENT IN OP(MV) 494/2004 OF the MOTOR ACCIDENT
CLAIMS TRIBUNAL ,THODUPUZHA, IDUKKI
APPELLANT/5thRESPONDENT:
THE NEW INDIA ASSURANCE COMPANY LIMITED
ETTUMANOOR, NOW REPRESENTED BY ITS DEPUTY MANAGER,,
REGIONAL OFFICE, M.G.ROAD, KOCHI-11.
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
RESPONDENTS/PETITIONERS AND RESPONDENTS 1 TO 3:
1 K.BEENA, D/O. LATE KRISHNAN,
KOCHERIL HOUSE, UZHAVOOR P.O., NOW RESIDING AT,
PARACKAL HOUSE, KUDAYATHOOR P.O.,, THODUPUZHA TALUK.
2 K.K.NIRMALA WO. LATE KRISHNAN
KANDATHINKARA HOUSE, WEST KODIKULAM P.O.,,
THODUPUZHA TALUK.
3 K.K.SUMANGALA W/O. SOMAN
PARACKAL HOUSE, NEYYASSERY P.O., THODUPUZHA TALUK.
4 K.K.JAMEELA DO. LATE KRISHNAN,
KOCHERIL HOUSE, UZHAVOOR P.O., NOW RESIDING AT,
PARACKAL HOUSE, KUDAYATHOOR P.O.,THODUPUZHA TALUK.
5 K.K.VILASINI W/O. CHANDRASEKHARAN
MARANGATTU HOUSE, SOUTH PAMPADY P.O., NOW, RESIDING
AT PARACKAL HOUSE, KALIYAR P.O.,, VANNAPPURAM,
THODUPUZHA TALUK.
MACA NO. 336 OF 2008
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6 K.K.GIREESAN SO. LATE KRISHNAN
KOCHERIL HOUSE, MEENACHIL TALUK, NOW RESIDING AT,
PARACKAL HOUSE, KUDAYATHOOR P.O.,THODUPUZHA TALUK.
7 CHANDRASEKHARAN PILLAI S/O. PADMANABHA
PILLAI, KAYYAVILA, KOLLAM.
8 ABDUL SALIM
THUNDIL VADAKKETHIL VEEDU, KARIKODE, T.K.M.C.,,
KOLLAM P.O., PIN-691 001.
9 NATIONAL INSURANCE COMPANY LIMITED
DIVISIONAL OFFICE, P.B.NO.117, HOSPITAL ROAD,,
KOLLAM P.O., PIN-691 001.
BY ADV SRI.JOE KALLIATH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 20.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA NO. 336 OF 2008
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JUDGMENT
The 5th respondent - The New India Assurance
Company Ltd - in O.P (MV)No. 494/2004 on the file of the
Motor Accidents Claims Tribunal, Thodupuzha is the
appellant. The respondents 1 to 6 in the appeal were the
petitioners and respondents 7 to 9 were the respondents 1
to 3 before the Tribunal. The parties are, for the sake of
convenience, wherever the context so requires are
referred to as per their status in the claim petition.
2. The petitioners 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 Krishnan (deceased) who was the
husband of the 2nd petitioner and father of the petitioners 1
and 3 to 6. The petitioners had averred in the claim
petition that on 23.1.2004 while the deceased was
travelling in an autorickshaw bearing Reg. No.KL.5N/7541
MACA NO. 336 OF 2008
from Uzhavoor to Kottayam at Parolickal Junction, a
lorry bearing Reg.No.KRQ-917 which was coming from the
opposite direction hit the autorickshaw. The deceased
sustained serious injuries and was taken to Matha
Hospital, but he lost his life on the very same day at 8 p.m.
The deceased was 80 years of age and was a retired Army
Personnel. The accident occurred on account of the
negligent driving of the lorry as well as the autorickshaw
by the respondents 1 and 4. The 2 nd respondent was the
owner of the lorry and the 4th respondent was the owner-
cum-driver of the autorickshaw. The respondents 3 and 5
were the insurers of the lorry and autorickshaw,
respectively. The petitioners claimed compensation from
the respondents, which they quantified at Rs.2,90,000/-,
but limited to Rs.2,00,000/-.
3. The petitioners also filed O.P (MV) 495/2004
claiming compensation on account of the death of their
mother in the very same incident. A fellow passenger
MACA NO. 336 OF 2008
named 'K.K.Jameela' filed O.P (MV) 937/2004 claiming
compensation on account of the injuries sustained to her
in the accident.
4. The 1st respondent did not contest the
proceedings and was set ex parte.
5. The 3rd respondent - insurance company of the
lorry filed a written statement admitting that the lorry
had a valid insurance coverage. But, it was contended
that the accident was caused on account of the negligence
of the driver of the autorickshaw. According to them, as
per the scene mahazar, the autorickshaw had transgressed
2.04 meters to the wrong side. Therefore, the 4 th
respondent was guilty for negligence and the 5 th
respondent was liable to indemnify him.
6. The 4th respondent filed a written statement
contending that he was holding a valid driving licence and
his autorickshaw was covered by a valid insurance policy.
Therefore, even if he is found negligent, it is the 5 th
MACA NO. 336 OF 2008
respondent who is liable to indemnify him and liable to
pay the compensation.
7. The 5th respondent insurance company (appellant)
filed a written statement admitting that the autorickshaw
was covered by a valid insurance policy. Nonetheless, it
was contended that as the Police after investigation filed
a charge-sheet finding that the accident occurred due to
the negligence of the driver of the lorry. Therefore, only
the 3rd respondent insurance company is liable to
indemnify the owner of the lorry and pay the
compensation amount.
8. The Tribunal consolidated and jointly tried the
original petitions.
9. The petitioners in the cases produced and marked
Exts.A1 to A12 series in evidence. The 5 th respondent
produced and marked Ext.B1 copy of the charge-sheet
filed by the Ettumanoor Police in Crime No.41/2004.
10. The Tribunal, after analysing the pleadings and
MACA NO. 336 OF 2008
materials on record, by the impugned award, allowed the
claim petitions, in part, but found that it was the 4 th
respondent who was negligent in causing the accident and
therefore, it is the 5th respondent - insurer of the
autorickshaw - who is liable to pay the compensation
amount.
11. Aggrieved by the finding of the Tribunal that the
5th respondent is liable to pay the compensation, the 5 th
respondent is in appeal.
12. Heard Sri.Mathews Jacob, the learned Senior
Counsel appearing for the appellant/5 th respondent and
Sri.Joe Kalliath, the learned counsel appearing for the 9 th
respondent/3rd respondent insurance company.
13. The sole question that emerges for consideration
in the appeal is whether the finding of the Tribunal that it
is the 4th respondent - driver of the autorickshaw who was
negligent in causing the accident and therefore, the
appellant/5th respondent is liable to pay the compensation
MACA NO. 336 OF 2008
amount is correct or not?
14. Undisputedly, as per Ext.B1 final report filed by
the Police in Crime No.41/04 , it is found that it was the 1 st
respondent, the driver of the lorry who was negligent in
causing the accident. Admittedly, neither the petitioners
nor the respondents have mounted the box and let in any
oral evidence.
15. A Division Bench of this Court in New India
Insurance Co.Ltd v. Pazhaniammal and Others [2011
(3) KLT 648] has categorically held that production of a
charge-sheet is prima facie sufficient evidence of
negligence for the purpose of a claim under Section 166 of
the Motor Vehicles Act, 1988. A charge sheet filed by the
Police after investigation can be accepted as evidence of
negligence against the accused-driver of the vehicle. If any
of the parties do not accept the charge-sheet, the onus of
proof is on such party to adduce oral evidence and
discredit the charge-sheet. If the oral evidence is adduced
MACA NO. 336 OF 2008
by such party, then the charge-sheet will fall into a pale of
insignificance.
16. The learned counsel appearing for the 9th
respondent - insurance company argued that in the instant
case, the Tribunal relying on Ext.A2 scene mahazar has
found that the autorickshaw had transgressed 2.04 meters
on to the wrong side of the road which has resulted in the
accident. Accordingly, the Tribunal held that it was the
driver of the autorickshaw was negligent in causing the
accident, which is justifiable and correct.
17. Another Division Bench of this Court in Kolavan v.
Salim [2018 (1) KLT 489]. has held that the Tribunal will
not be justified in finding negligence contrary to the
findings in the charge-sheet, merely relying on the scene
mahazar prepared in the case.
18. Going by the authoritative pronouncement of law
by the Division Benches of this Court, I am of the definite
opinion that the finding of the Tribunal based on Ext.A2
MACA NO. 336 OF 2008
scene mahazar cannot withstand the scrutiny of law. The
Tribunal ought to have accepted the finding of the Police in
charge-sheet especially since there was no contra-
evidence, and held that it was the 1 st respondent who was
negligent. Therefore, I set aside the finding of the Tribunal
that it was the driver of the autorickshaw who caused the
accident. Placing reliance on Pazhaniammal and Kolavan
(supra), I hold that it is the 9 th respondent/3rd
respondent who is liable to indemnify the owner of the
lorry, namely, the 8th respondent and pay the
compensation amount to the claimants in O.P (MV)
494/2004 as ordered by the Tribunal.
In the result, the appeal is allowed. The
respondents/claimants in O.P (MV)No.494/2004 are
permitted to recover the compensation amount with
interest and costs as ordered by the Tribunal in the
impugned award from the 9th respondent/3rd respondent.
The 9th respondent shall deposit the compensation amount
MACA NO. 336 OF 2008
with interest and costs within two months from the date of
receipt of a certified copy of the judgment. The Tribunal
shall disburse the compensation amount in proportion and
as per the conditions in the impugned award and in
accordance with law. Needless to mention that if the
appellant has deposited any amount pursuant to the
impugned award, the 9th respondent shall reimburse/refund
such amount. The parties shall bear their respective costs.
ma/20.7.2021 Sd/- C.S.DIAS, JUDGE
