Prathapan T.K vs Oriental Insurance Co. Ltd
2021 Latest Caselaw 23547 Ker

M.A.C.A.No.3430/2018                   1




            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
 SATURDAY, THE 27TH DAY OF NOVEMBER 2021 / 6TH AGRAHAYANA,
                                1943
                       MACA NO. 3430 OF 2018
 AGAINST THE ORDER/JUDGMENT IN OPMV 18/2013 OF ADDITIONAL
  DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL , NORTH
                              PARAVUR
APPELLANT/PETITIONER:
          PRATHAPAN T.K.,
          AGED 48 YEARS,
          S/O.KARTHIKEYAN, THACHERIL HOUSE,
          MOOTHAKUNNAM.P.O, PIN-683 513.
          MOOTHAKUNNAM VILLAGE, PARAVUR TALUK,
          ERNAKULAM DISTRICT.

            BY ADVS.
            G.BALAMURALEEDHARAN (PARAVUR)
            SMT.LEKSHMI S.SEKHER


RESPONDENT/2ND RESPONDENT:

            ORIENTAL INSURANCE CO.LTD.,
            BRANCH OFFICE, MANAPPATT BUILDINGS, NORTH NADA,
            KODUNGALLUR.P.O, PIN-680664.
            THRISSUR DISTRICT REPRESENTED BY ITS BRANCH
            MANAGER.

            BY ADV SRI.A.R.GEORGE


      THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION    ON   27.11.2021,   THE     COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
 M.A.C.A.No.3430/2018                         2




                              JUDGMENT

The appellant herein is the petitioner in O.P.

(MV).No.18/2013 on the file of the Motor Accidents Claims

Tribunal, North Paravur. The aforesaid claim petition was filed

by him seeking compensation for the injuries sustained in a

motor accident occurred on 26.09.2012. The accident occurred

when the motor cycle ridden by him through Kodungalloor -

Irinjalakuda road was collided with another motor cycle ridden

by the 1st respondent in the claim petition. The motor cycle

bearing registration No.KL-47/B-6206, which was being ridden

by the 1st respondent was insured with the respondent herein,

who was the 2nd respondent before the Tribunal. It was

contended that he sustained serious injuries due to the

accident, which resulted in permanent partial disablement as

well. It was contended that the accident occurred due to the

sole negligence of the 1st respondent. An amount of

Rs.10,00,000/- was claimed as the compensation from the

respondent in the claim petition.

2. The 1st respondent did not contest the claim petition

and he was set ex parte. The 2nd respondent in the claim

petition, who is the respondent herein filed a written statement

disputing the negligence and quantum of compensation. It was

contended that the accident occurred due to the negligence on

the part of the appellant himself. However, the coverage of

policy in respect of the motor cycle driven by the 1 st respondent

before the Tribunal was accepted. The appellant got himself

examined as PW1 and Exts.A1 to A8 were marked. From the

side of the respondents Exts.B1 to B3 were marked.

3. After the trial, the Tribunal came to the finding that

the accident occurred due to the negligence of the appellant as

well as the 1st respondent and the contributory negligence on

the part of the appellant was fixed as 40%. The quantum of

compensation awarded was Rs.4,92,360/- and being 60% of the

said amount Rs.2,95,416/- was directed to be deposited by the

2nd respondent insurance company along with interest at the

rate of 7.5% per annum from the date of petition. This appeal is

filed challenging the aforesaid award.

4. Heard Sri.G.Balamuraleedharan, learned counsel for

the appellant and Sri.A.R.George, learned counsel for the

insurance company.

5. The main dispute that is raised by the learned

counsel for the appellant is with regard to the contributory

negligence. It is contended that the Tribunal went wrong in

fixing contributory negligence upon the appellant with regard

to the cause of accident. However, the learned counsel for the

insurance company points out that the police has filed charge

sheet implicating both the appellant as well as the 1 st

respondent. In such circumstances, it was pointed out that, the

finding of the Tribunal need not be interfered with.

6. It is true that, the police after completing the

investigation filed a charge sheet against the appellant as well.

In the award, the Tribunal has discussed the contents of scene

mahazar in detail and fixed the percentage of contributory

negligence as 40% on the basis of the same. During the course

of discussion with regard to the said issue, the Tribunal relied

upon the judgment of this Court reported in Jose P.J v. Niyas

and Others [2016 (1) KHC 485 (DB)], wherein, the liability

of the parties under similar circumstances was considered and

fixed the contributory negligence of the claimant therein as

25%.

7. The appellant got himself examined as PW1 and gave

evidence as against the findings in the police report. On the

contrary, no evidence is seen adduced by the respondents. It is

a well settled position of law that in the absence of any contra

evidence, the findings in the final report filed by the police can

be accepted for the purpose of determining the liability for

adjudicating the question of negligence in an application under

Section 166 of the Motor Vehicles Act. However, in a case

where a party has adduced evidence contrary to the findings in

police report, a different approach can be made and a decision

can be arrived on an analysis of the quality of evidence adduced

by the party.

8. In this case, the appellant came forward and

explained the circumstances under which the accident

occurred. In his deposition as PW1, he had specifically stated

that, at the time of accident the 1 st respondent was overtaking

another vehicle and the accident occurred due to negligence of

the 1st respondent. The Tribunal did not accept the said

evidence and conclusion was arrived at by relying upon the

scene mahasar prepared by the police and the measurements

contained therein. In Jiju Kuruvila and others v.

Kunjunjamma Mohan and others [(2013) 9 SCC 166) it

was observed by the Honourable Supreme Court as follows:

"The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evi- dence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In ab- sence of such direct or corroborative evidence, the Court cannot give any specific finding about negli- gence on the part of any individual."

Thus it is evident that mahasar which is prepared by

police after the accident, as such cannot be relied upon. This is

particularly so, when there are other materials to the contrary.

In this case, there is evidence of PW1 providing a different

version of the accident than described in the police report. His

evidence withstood the test of cross examination. In such

circumstances, I am of the view that, the assertion made by the

appellant while he was examined as PW1, can be given some

weightage instead of simply accepting the findings in the final

report submitted by the police and also the contents of the

scene mahazer. However, in the facts and circumstances of the

case, a complete exoneration cannot be given to the appellant

also, as obviously, if he exercised some care and caution,, the

accident could have avoided. Apparently, even going by the

evidence of PW1, accident has occurred on the middle of the

road and a reasonable precaution should have been taken by

the appellant as well. In such circumstances, the contributory

negligence on his part cannot be fixed as high as 40%, but a

lesser percentage of responsibility must be fixed upon the

appellant as well. The materials available before me indicate

that 25% can be fixed as the contributory negligence on the

part of the appellant instead of 40% fixed by the Tribunal.

9. With regard to the quantum of compensation, on

examining the amounts awarded under various heads in the

light of the materials available, I am of the view that the amount

is reasonable and no interference is warranted.

In the above circumstances, the appeal is allowed in part,

and the award passed by the Tribunal is modified, in the matter

of contributory negligence by revising the same as 25% instead

of 40% fixed by the Tribunal. The insurance company shall

therefore, deposit 75% of the award, after adjusting the

amounts already deposited by them, within a period of three

months from the date of receipt of a copy of this judgment. It is

made clear that, while computing the interest for the

additional amount of compensation as ordered here, the

insurance company shall be entitled to exclude 284 days,

which is the extent of delay occurred in filing the appeal, as

the aforesaid delay was condoned by this court on that

condition.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE DG/29.11.21