Kerala High Court
Jafeth Koshy vs Jafeth Koshy on 1 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942
MACA.No.272 OF 2020(D)
AGAINST THE AWARD IN OP(MV)NO.1145/2014 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL ,PATHANAMTHITTA DATED 03.01.2020
APPELLANT/IST RESPONDENT:
JAFETH KOSHY
AGED 50 YEARS
KULANGARA JJ VILLA,
EDAKKAD (PO), PORUVAZHY,
KUNNATHOOR,
KOLLAM DISTRICT, PIN-691 552.
BY ADVS.
SRI.JACOB P.ALEX
SRI.JOSEPH P.ALEX
SHRI.MANU SANKAR P.
RESPONDENTS/APPLICANT & 2ND RESPONDENT:
1 JITHIN
S/O.RAJENDRAN, RESIDING AT REMYALAYAM,
PARAKOOTTAMM (PO),
MUNDAPPALLY MURI,
PERINGANADU VILLAGE,
ADOOR TALUK, PIN-691 551.
2 MANAGER, UNITED INDIA INSURANCE COMPANY LTD.,
BRANCH OFFICE, KOLLAM P.O., PIN-691 001.
R2 BY SRI.P.K.MANOJKUMAR,SC,UNITED INDIA INSURANCE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
01.03.2021, ALONG WITH MACA.2099/2020(F), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
MACA.No.272 &2099 OF 2020
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942
MACA.No.2099 OF 2020(F)
AGAINST THE AWARD IN OP(MV)NO.1145/2014 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL ,PATHANAMTHITTA DATED 03.01.2020
APPELLANT/2D RESPONDENT:
UNITED INDIA INSURANCE COMPANY
BRANCH OFFICE,KOLLAM,MANAGER,
REPRESENTED BY THE DULY AUTHORISED
SIGNATORY,ADMINISTRATIVE OFFICER,
REGIONAL OFFICE,KOCHI-682011.
BY ADV. SRI.RAJAN P.KALIYATH
RESPONDENT/PETITIONER & RESPONDENT NO.1:
1 JITHIN, AGED 22
S/O.RAJENDRAN,RESIDING AT REMYALAYAM,
PARAKOOTTAMM POST,MUNDAPPALLY MURI,
PERINGANADU VILLAGE,
ADOOR TALUK, PIN-691551.
2 JAFETH KOSHY,
KULANGARA JJ VILLA,
EDAKKADU POST,
PORUVAZHY,KUNNATHOOR,
KOLLAM DISTRICT,PIN-691552.
R2 BY ADVS. SRI.JACOB P.ALEX
SRI.JOSEPH P.ALEX
SHRI.MANU SANKAR P.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 01.03.2021, ALONG WITH MACA.272/2020(D), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
MACA.No.272 &2099 OF 2020
3
C.S.DIAS,J
------------------------
MACA Nos.272 & 2099 of 2020
------------------------
Dated this the 1st day of March, 2021
COMMON JUDGMENT
As these appeals arise out of the same award i.e.,
in OP(MV)No.1145 of 2014 on the file of the Motor
Accident Claims Tribunal, Pathanamthitta, and the
parties being the same, the appeals are disposed of by
this common judgment. The parties are, for the sake of
convenience, referred to as per their status in the
original petition.
2. The concise background facts, for the
determination of the appeal, in the claim petition are
that: on 23.12.2013 while the petitioner was riding a
motorcycle bearing registration No. KL 26D/3217,
through the Adoor-Kadambanadu public road, and was
attempting to overtake an Innova Car bearing
registration No.KL 61 7899, a motorcycle bearing
MACA.No.272 &2099 OF 2020
registration No. KL 26D/3217 (offending vehicle) ridden
by one Jaffin Jaffiath (deceased) - the son of the 1 st
respondent, in a rash and negligent manner and while
talking on his mobile phone, came from the opposite
direction and hit the motorcycle of the petitioner. The
petitioner was thrown on the road. The petitioner
sustained injuries and was treated at various hospitals.
The offending vehicle is owned by the 1 st respondent
and insured with the 2nd respondent. The petitioner is
entitled for compensation of Rs.3,00,000/-. Hence the
claim petition.
3. The claim petition was resisted by the
respondents. The 1st respondent filed a written
objection, refuting the allegations in the original
petition. According to the 1st respondent, the alleged
accident was a pre planned murder committed by the
petitioner. On the ill-fated day, while the 1 st
respondent's son had stopped his vehicle on the road
MACA.No.272 &2099 OF 2020
margin and was speaking on his mobile phone, the
petitioner, out of previous animosity, wilfully hit the
motorcycle against the 1st respondent's son, and
murdered him. The police after investigation have filed
a chargesheet, arraigning the petitioner as an accused
for having committed an offence under Section 304 of
the Indian Penal Code. Hence, the claim petition is
liable to be dismissed.
4. The 2nd respondent filed a written objection,
reiterating the same very contention as that of the 1 st
respondent. It is the case of the 2nd respondent that as
per the charge sheet, the petitioner is not entitled for
compensation as it is a case of culpable homicide.
Therefore, the claim petition is only to be dismissed.
5. The petitioner and a witness were examined
as PW's 1 and 2 and Exhibits A1 to A21 were marked
through them in evidence. The Village Officer was
examined as DW1 and Exhibits D1 and D2 series were
MACA.No.272 &2099 OF 2020
marked in evidence.
6. The Tribunal, after considering the pleadings
and materials on record, by the impugned award
allowed the claim petition, in part, by ordering the 2 nd
respondent-insurer to pay an amount of Rs.40,000/- as
compensation to the petitioner with cost of Rs.5,000/- .
7. Aggrieved by the impugned award, both the
respondents are in appeal.
8. Heard the learned counsel appearing for the
respective parties.
9. Undisputedly, the claim petition was filed
under Section 166 of the Motor Vehicles Act, 1988.
10. The Tribunal, after relying on Ext.B1 charge
sheet, by its own findings in paragraphs 9 and 10 of
the award has found that the deceased was not
negligent, but it was the petitioner who caused the
accident.
11. Division Benches of this Court in New India
MACA.No.272 &2099 OF 2020
Assurance Co. Ltd. v. Pazhaniammal and Others
[2011(3) KLT 648] and National Insurance Company
Ltd., Thalassery v. Ramla and Others
[2016(4)KHC 891], have categorically laid down the law
the chargesheet/final report filed by the police is prima
facie evidence of negligence, unless the proof is
rebutted.
12. In the case on hand, the police after
investigation have filed Annexure B1 charge sheet in
Crime No.2384/2013 of the Adoor Police Station,
specifically finding that it was the petitioner who had
caused the accident, and the same was with the
mensrea to cause death of the deceased. The police
have charge sheeted the petitioner for an offence
under Section 304 of the IPC.
13. Surprisingly, the Tribunal after relying on the
ratio in Pazhaniammal (supra), Ext.B1 charge sheet
and finding that the petitioner has not rebutted the
MACA.No.272 &2099 OF 2020
onus of proof, instead of dismissing the claim petition,
curiously, suo motu converted the petition to one filed
under Section 163A of the Motor Vehicles Act, 1988.
14. A Division Bench of this Court in United
India Insurance Co. Ltd v. Akbar Shihab [2012(2)
KLT 242], relying on the law laid down by the Hon'ble
Supreme Court in Deepal Girishbhai Soni v. United
India Insurance Co.Ltd [(2004) 5 SCC 385], has
succinctly laid down the law that the Tribunal after
coming to the conclusion that no case has been made
out for awarding compensation under Sec.166 of the
Act, cannot convert a claim petition to one under
Sec.163A of the Act. The above ratio applies on all
fours to the facts of the present case.
15. In light of the law declared in Akbar Shihab
and Deepal Girishbhai Soni (supra), I have no
hesitation to hold that the course adopted by the
Tribunal is patently erroneous and ex-facie
MACA.No.272 &2099 OF 2020
unsustainable in law.
16. In the above factual and legal situation, I am
of the definite opinion that award passed by the
Tribunal, especially after finding that there was no
negligence on the part of the deceased and that the
petitioner has not suffered any disability, is erroneous
and only liable to be set aside.
In the result, the appeals are allowed. The
impugned award passed by the Tribunal is set aside
and OP (MV) No.1145/2014 is dismissed. Needless to
state, the competent Court trying the proceedings
pursuant to Ext B1 charge-sheet, shall try the case
untrammeled by any observations made in this
judgment.
Sd/-
C.S.DIAS,JUDGE
dlK 01.03.2021
