Nazari vs G.Bhargavikutty Amma
2021 Latest Caselaw 22123 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
          THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
                    MACA NO. 1478 OF 2013
  AGAINST THE AWARD IN OPMV 1964/2004 OF MOTOR ACCIDENT
        CLAIMS TRIBUNAL, ATTINGAL, THIRUVANANTHAPURAM
APPELLANT/PETITIONER:

           VENUKUMAR,
           AGED 50 YEARS,
           S/O.KESAVAN PILLAI, SAGOTHAM, ALANTHARA,
           NELLANADU, NELLANADU VILLAGE.

           BY ADV SRI.M.DINESH

RESPONDENTS/RESPONDENTS:

1 G.BHARGAVIKUTTY AMMA KURIYIDATHU VEEDU, PULLARIMANGALAM P.O, MAVELIKKARA. 690 101.

2 G.SOMU S/O.BHASKARA PILLAI, KOLLATHURUTHU VEEDU, EDAREZHAMURI, MAVELIKKARA, ALAPPUZHA DISTRICT. 690 101.

3 THE MANAGER ORIENTAL INSURANCE CO.LTD, DIVISION OFFICE, ALAPPUZHA, ALAPPUZHA P.O, 688 001.

4 A.SIJI S/O.ABDUL RAHUMAN, PALAVILA VEEDU, ODAYAM, VARKALA P.O, 695 141.

5 THE MANAGER UNITED INDIA INSURANCE CO.LTD, ATTINGAL, 695 101.

BY ADVS. SMT.P.K.SANTHAMMA SMT.K.S.SANTHI.

M.A.C.A Nos.1478 & 1486 of 2013

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.11.2021, ALONG WITH MACA.1486/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A Nos.1478 & 1486 of 2013

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943 MACA NO. 1486 OF 2013 AGAINST THE AWARD IN OPMV 1008/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL, THIRUVANANTHAPURAM

APPELLANT/PETITIONER:

NAZARI AGED 42 YEARS S/O. RAHUMAN, PADINJATTE PALAVILA VEEDU, NEAR PARAMBIL TEMPLE, ODAYAM DESOM, EDAVA VILLAGE, THIRUVANANTHAPURAM DISTRICT.

BY ADV SRI.M.DINESH

RESPONDENTS/RESPONDENTS:

1 G.BHARGAVIKUTTY AMMA KURIYIDATHU VEEDU, PULLARIMANGALAM.P.O., MAVELIKKARA.PIN-690101.

2 G. SOMU S/O. BHASKARA PILLAI, KOLLATHURUTHU VEEDU, EDAREZHAMURI, MAVELIKKARA, ALAPPUZHA DISTRICT-688001.

3 THE MANAGER ORIENTAL INSURANCE CO.LTD. DIVISION OFFICE, ALAPPUZHA, ALAPPUZHA DISTRICT-688001.

BY ADV. SMT.K.S.SANTHI, SC

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.11.2021, ALONG WITH MACA.1478/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A Nos.1478 & 1486 of 2013

COMMON JUDGMENT

M.A.C.A. No.1486/2013 arises out of

the award dated 15.04.2013 in O.P.(M.V)

No.1008/2004 on the file of the Motor Accident

Claims Tribunal, Attingal.

2. The award dated 15.04.2013 in O.P.

(M.V) No.1964/2004 on the file of the Motor

Accident Claims Tribunal, Attingal is under

challenge in M.A.C.A No.1478/2013 at the

instance of the respective petitioners, whose

claim applications were dismissed finding that

they were negligent in the matter of accident,

being person travelled on the motor bike

bearing registration no.KL-01S-3818.

3. The respondents 1 to 3 before the

Tribunal are the respondents herein and

respondents 5 to 6 were not arrayed as parties

in M.A.C.A. No.1486/2013

4. In M.A.C.A No.1478/2013, respondents 1

to 4 and 6 before the Tribunal are arrayed as M.A.C.A Nos.1478 & 1486 of 2013

respondents 1 to 5 herein.

5. The Tribunal considered O.P.(M.V)

Nos.1964/2004 and 1008/2004 after effecting

joint trial.

6. To the brief facts of this case, the

specific allegation of the petitioners is that

while they were travelling as pillion riders

in doubles in a motor cycle bearing

registration no.KL-01S-3818 driven by one

Binni, stage carriage bearing registration

no.KL-04H-7269 driven by the 2nd respondent

dashed against the motor cycle and thereby

they sustained injuries.

7. Respondent nos.3 and 6 in the O.P.

(M.V) filed written statement and disputing

negligence while admitting policy. The

Tribunal addressed the issue as to negligence

and finally held that the accident found to

have occurred on account of petitioners/

claimants in O.P.(M.V) Nos.1964/2004 and M.A.C.A Nos.1478 & 1486 of 2013

1008/2004 having indulged in drunken driving

of motor cycle bearing registration no.KL-01S-

3818. The Tribunal also took serious note of

deletion of Binni, the rider of the motor

cycle from the party array in O.P.(M.V)

No.1964/2004.

8. It is pointed out by the learned

counsel for the appellants that the Tribunal

found drunken riding of the motor cycle on the

basis of observation in Ext.A12 wound

certificate of a Nazari (one among the

petitioner). According to the learned counsel

for the appellants, on the basis of the FIS

given by the 2nd respondent crime was

registered. Therefore, the FIR does not

suggest negligence on the part of the 2 nd

respondent. However, after investigation, the

police filed Ext.A5 charge against the 2nd

respondent alleging commission of offences

under Sections 279, 337 and 338 of IPC. That M.A.C.A Nos.1478 & 1486 of 2013

apart, the 2nd respondent, who received

summons in C.C.No. 279/2002 from Judicial

First Class Magistrate Court-I, Attingal based

on Ext.A5 charge appeared before the

Magistrate Court and pleaded guilty to the

charge. Highlighting these aspects, the

learned counsel for the appellants would

submit that the finding of the Tribunal that

the appellants were negligent, being persons

engaged in drunken driving ignoring the police

charge and Ext.A3 judgment is erroneous.

Therefore, the same is liable to be set aside.

9. The learned counsel for the 3rd

respondent, Insurance Company would submit

that though this is a matter of collision

between two vehicles in O.P.(M.V)

No.1008/2004, the owner, rider and insurer of

the motor bike were not impleaded. Though the

owner, rider and insurer of the motor bike

were impleaded in O.P.(M.V) No.1964/2004, M.A.C.A Nos.1478 & 1486 of 2013

during the course of trial, the 5th

respondent, the rider of the motor vehicle was

also deleted from the party array.

10. The learned counsel for the insurer of

the motor cycle also was heard.

11. Here the Tribunal did not grant any

amount as compensation since the Tribunal

found negligence on the part of the appellants

themselves.

12. As per the decisions reported in New

India Assurance Co. Ltd v. Pazhaniammal : 2011

(3) KLT 648] and Balan R. v. Abhiraj R. and

others : 2021 (4) KHC 380, it has been

categorically held that the police charge can

be relied on as prima facie evidence to find

negligence unless other convincing evidence

not brought into disbelieve the police charge.

Here the Tribunal did not accept the police

charge and relying on the endorsement 'smell

of alcohol' in the wound certificate of M.A.C.A Nos.1478 & 1486 of 2013

Nazari, the petitions were dismissed finding

negligence against the petitioners/appellants.

13. It is submitted by the learned counsel

for the 3rd respondent, Insurance Company that

owner, rider and insurer of the motor bike are

necessary parties in both cases as the Company

is disputing the quantum of negligence and R3

is ready to adduce evidence in this regard.

Therefore, R5 to be impleaded in O.P.(M.V)

No.1964/2004 and R4 to R6 also to be impleaded

in O.P.(M.V) No.1008/2004.

14. Perusal of the award would go to show

that O.P.(M.V) No.1008/2004 was proceeded

without the juncture of the owner, rider and

insurer of the other vehicle though collision

between two vehicles is the subject matter in

both cases. It is true that police charge can

be prima facie evidence to prove negligence.

However, the right of the alleged tortfeasors

to adduce contra evidence is always open. If M.A.C.A Nos.1478 & 1486 of 2013

so, it has to be noted that since the other

parties (owner, rider and insurer of the motor

cycle) and the rider is deleted from O.P.(M.V)

No.1964/2004 were not impleaded in O.P.(M.V)

No.1008/2004 and such an option was denied to

them.

15. Therefore, I am of the view that the

impugned common award is liable to be set

aside and the matter required to be remanded

to the Tribunal for fresh consideration. It is

specifically ordered that the petitioners

shall implead R5, the rider of the motor cycle

in O.P.(M.V) No.1964/2004 and owner, rider and

insurer of the vehicle in O.P.(M.V) No.

1008/2004 before starting trial.

16. The Tribunal is directed to decide the

question of negligence and entitlement of

compensation based on the evidence to be

adduced by the parties, inclusive of the

evidence now on record. Having considered the M.A.C.A Nos.1478 & 1486 of 2013

matter is of the year 2004, the Tribunal is

directed to expedite the trial at the

earliest, at any rate, within four months from

the date of production of the copy of the

judgment or receipt of judgment from this

Court.

Contesting parties herein are directed

to appear before the Tribunal on 06.12.2021 at

11:00 A.M. Registry shall forward a copy of

the judgment along with back records to the

Tribunal within 7 days.

Sd/-

A.BADHARUDEEN, JUDGE.

ww