Kerala High Court
The Manager vs The Manager on 4 March, 2021
MACA.No.728 OF 2014(C)
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942
MACA.No.728 OF 2014(C)
AGAINST THE AWARD IN OP(MV) 979/2007 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL ,PERUMBAVOOR DATED 31.10.2013
APPELLANT/3RD RESPONDENT:
THE MANAGER
NATIONAL INSURANCE COMPANY LTD.,
PERUMBAVOOR BRANCH,
ERNAKULAM DISTRICT.
BY ADVS.
SRI.LAL K.JOSEPH
SRI.V.S.SHIRAZ BAVA
RESPONDENTS/PETITIONER AND THE RESPONDENTS 1,4,5 AND 6:
1 ABY V.P.
S/O. PAILY, VADAKKAN HOUSE,
PATTIMATTOM P.O.,
PATTIMATTOM VILLAGE,
ERNAKULAM DISTRICT-688011.
2 BIJU
S/O. SIVARAMAN,
KATTIKUDIYIL HOUSE,
VALAMABOOR KARA, MAZHUVANNOOR VILLAGE, N
ORTH MAZHUVANNOOR P.O.-688910.
3 LEKHA
W/O. DILEEP, VETTIKKATTUMURI HOUSE,
NORTH MUZHUVANNOOR KARA,
NORTH MUZHUVANNOOR P.O.
AIRAPURAM VILLAGE-688011.
4 ANJALY
D/O. DILEEP, VETTIKKATTUMURI HOUSE,
NORTH MUZHUVANNOOR KARA,
NORTH MUZHUVANNOOR P.O.
AIRAPURAM VILLAGE-688011.
MACA.No.728 OF 2014(C)
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5 AJEESH
S/O. DILEEP, VETTIKKATTUMURI HOUSE,
NORTH MUZHUVANNOOR KARA,
NORTH MUZHUVANNOOR P.O.
AIRAPURAM VILLAGE-688011.
R1 BY ADVS. SRI.P.AYYAPPAN
SRI.P.K.MOHAMMED PUZHAKKARA
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA.No.728 OF 2014(C)
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C.S.DIAS,J
------------------------
MACA No. 728 of 2014
------------------------
Dated this the 4th day of March, 2021
JUDGMENT
The appellant was the 3rd respondent in
OP(MV)No.979 of 2007 on the file of the Motor
Accident Claims Tribunal, Perumbavoor. The first
respondent was the petitioner in the claim petition and
respondents 2 to 5 were the respondents 1, 4, 5 and 6
before the Tribunal. The parties are, for the sake of
convenience, referred to as per their status in the claim
petition.
2. The petitioner had filed the claim petition,
under Section 166 of the Motor Vehicles Act, 1988,
claiming compensation on account of the injuries that
he sustained in accident 02.01.2007. The brief facts in
the claim petition, for the determination of the appeal,
are that: on 02.01.2007 while the petitioner was
attempting to get down from Lorry bearing registration
No.KL 07/AD-5084 driven by the 1st respondent, the 1st
MACA.No.728 OF 2014(C)
respondent moved the vehicle forward in an negligent
manner and the petitioner sustained injuries. The 2 nd
respondent was the owner of the vehicle and the 3 rd
respondent was the insurer. Hence, respondents 1 to 3
are jointly and severally liable to compensate the
petitioner on account of the injuries that he sustained,
which he quantified at Rs.3,00,000/- , but was limited
to Rs.1,50,000/-.
3. The 3rd respondent-insurance company filed a
written statement, refuting the allegations in the claim
petition. However, insurance company admitted the
insurance policy of the offending vehicle. It was
contended that the petitioner was travelling in the
Lorry as a gratuitous passenger. Hence, the 3 rd
respondent has no liability to indemnify the 3 rd
respondent- the insurer. It was further contended that
as the 3rd respondent had not collected any additional
premium, the claim petition as against the 3 rd
respondent was not maintainable.
4. During the pendency of the proceedings, the
MACA.No.728 OF 2014(C)
2nd respondent died and his legal representatives were
impleaded as additional respondents 4 to 6.
5. The respondents 1 and 5 remained absent and
they were set ex-parte.
6. The additional respondents 4 and 6 filed a
joint written statement, inter alia, contending that the
offending vehicle was insured with the 3 rd respondent.
The accident occurred solely due to the negligence of
the petitioner. The 1st respondent was holding a valid
driving licence. The respondents 4 and 6 were not
liable to pay any amount as compensation to the
petitioner and the claim petition is only to be
dismissed.
7. The petitioner produced and marked Exts. A1
to A8 series in evidence. The 3rd respondent produced
and marked Ext.D1-copy of the insurance policy.
Neither party adduced any oral evidence.
8. The Tribunal, after analysing the pleadings
and materials of record, by the impugned award
allowed the claim petition, in part, holding that
MACA.No.728 OF 2014(C)
respondents 1 and 3 to 6 were jointly and severally
liable to pay the petitioner an amount of Rs.43,150/-
with interest at the rate of 8% per annum from the date
of petition till the date of realisation and proportionate
cost. The 3rd respondent was directed to produce a
cheque for the compensation amount in favour of the
petitioner.
9. Aggrieved by the impugned award, the 3rd
respondent-insurance company is in appeal.
10. The questions that arise for consideration in
the appeal is (i) whether the petitioner was gratuitous
passenger, and if so, (ii) whether the appellant/3 rd
respondent has to be exonerated of its liability.
11. The fact that the accident occurred on
02.01.2007 and the petitioner had sustained injuries is
discernible from Exts.A1 to A5 series documents.
12. The specific case of the petitioner was that he
was a loading and unloading worker and was not a
gratuitous passenger. The said pleading stands
corroborated by Ext.A2 FIR and Ext.A5 charge-sheet
MACA.No.728 OF 2014(C)
filed by the police in Crime No.7 of 2007 of the
Kunnathunad Police Station.
13. A Division Bench of this Court in New India
Assurance Co. Ltd. v. Pazhaniammal and Others
[2011(3) KLT 648], has laid down the law that the
investigation conducted by the police and production of
the charge sheet is prima facie proof of the negligence
attributed against the indictee in the charge-sheet.
Then, the onus of proof to rebut the charge sheet is on
the person who wants to disprove the charge-sheet.
14. Undisputedly, by Ext.A5 the police has found
that it was due to the rashness and negligence on the
part of the 1st respondent, that the petitioner sustained
injuries. It is also seen from Ext.A1 and A5 that the
petitioner travelled in the offending vehicle as a
loading and unloading worker and he fell down and
sustained injuries only because the 1 st respondent
suddenly moved the vehicle. Although the 3 rd
respondent had raised a contention that the petitioner
was a gratuitous passenger, no material is forthcoming
MACA.No.728 OF 2014(C)
either documentary or oral, to disprove the charge-
sheet of the police, particularly that the petitioner was
a loading and unloading worker and not a gratuitous
passenger.
15. Relying on the ratio in Pazhaniammal
(supra), it was the bounden duty of the 3 rd respondent
to have mounted the box and let in contra-evidence, to
disprove the charge-sheet. So far as the same has not
been done, the course adopted by the Tribunal, by
accepting Exts.A1 to A5 as proof for establishing that
the petitioner was not a gratuitous passenger and that
the accident was caused due to the negligence on the
part of the 1st respondent, cannot be found fault with.
16. In the light of the above findings, I do not
find any ground to interfere with the impugned award
in exercise of the appellate jurisdiction of this Court.
In the result, the appeal is dismissed. Needless to
mention that the appellant shall deposit the balance
amount due as per the impugned award before the
Tribunal along with interest at the rate of 8% per
MACA.No.728 OF 2014(C)
annum from the date of petition till the date of
realisation and proportionate cost, within 60 days from
today, failing which the 1st respondent/ petitioner shall
be at liberty to execute the award in accordance with
law.
Sd/-
C.S.DIAS,JUDGE
dlK 04.03.2021
