Kerala High Court
Ouseph vs Jayasree Saju on 24 February, 2022
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MACA No.3965 of 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 24TH DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943
MACA NO. 3965 OF 2019
AGAINST THE ORDER/JUDGMENT IN OPMV 683/2015 OF MOTOR ACCIDENT
CLAIMS TRIBUNAL ,PERUMBAVOOR
APPELLANT/S:
OUSEPH
AGED 68 YEARS
S/O. OUSEPH, THARYAKKU PUTHUSSERY HOUSE, PIRAROOR
P.O, KALADY, ERNAKULAM DISTRICT, PIN 683574
BY ADV DINESH MATHEW J.MURICKEN
RESPONDENT/S:
1 JAYASREE SAJU
AGED 44 YEARS
W/O. SAJU, THOOMBAYIL HOUSE, PERUMATTOM, OKKAL P.O,
ERNAKULAM DISTRICT, PIN 683550
2 UNITED INDIA INSURANCE CO.LTD,
K.G TOWERS, ANGAMALI P.O, ERNAKULAM DISTRICT, PIN
683572
BY ADVS.
SANJANA R.NAIR -R1
SRI.P.K.MANOJKUMAR - R2
SMT.SAROGINI, GOVERNMENT PLEADER
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME
UP FOR ADMISSION ON 24.02.2022, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
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MACA No.3965 of 2019
C.S.DIAS, J.
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MACA No.3965 of 2019
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Dated this the 24th day of February, 2022.
JUDGMENT
The appellant was the first respondent in O.P. (MV)
No.683/2015 on the file of the Motor Accidents Claims
Tribunal, Perumbavoor. The respondents in the appeal
were the petitioner and the second respondent in the
claim petition. The parties are, for the sake of
convenience, referred to as per their status before the
Tribunal.
2. The petitioner had filed the claim petition under
Section 166 of the Motor Vehicles Act, 1988, claiming
compensation on account of the injuries sustained to her
in an accident 15.12.2014. It was her case that, on the
above said date, while she was riding a scooter bearing
Reg. No.KL-40/B 1843 through the Angamaly-Kalady MC
Road, another scooter bearing Reg. No. KL-41/B 3159
MACA No.3965 of 2019
(offending scooter), ridden by the first respondent in a
rash and negligent manner, hit the scooter of the
petitioner. The petitioner fell down and sustained
multiple injuries in the accident. She was treated as an
inpatient at the Little Flower Hospital, Angamaly. The
offending scooter was owned by the first respondent and
insured with the second respondent. The petitioner was
employed as a Teacher in Sree Narayana Higher
Secondary School, Okkal and was drawing a monthly
income of Rs.43,984/-. Hence, she claimed a
compensation of Rs.46,50,000/- from the respondents,
which claim was limited to Rs.15,00,000/-.
3. The first respondent had entered appearance
and filed written statement denying the allegations in the
claim petition. He contended that the petitioner was
travelling pillion on a motorcycle ridden by her husband.
Then, the motorcycle met with an accident with another
vehicle. On seeing the accident, the first respondent and
MACA No.3965 of 2019
other onlookers volunteered and took the petitioner to the
hospital. Thereafter, the Kalady Police, to enable the
petitioner to get undue compensation, made the first
respondent as an accused in the case. Even though the
first respondent had filed a complaint before the
Superintendent of Police, Aluva Rural, against the false
case foisted against him, no action was taken on his
complaint. Nonetheless, the offending scooter was
insured with the second respondent. Therefore, it was the
second respondent who was to indemnify the liability of
the first respondent.
4. The second respondent had filed a written
statement admitting that the offending scooter had a
valid insurance coverage. However, it was stated that the
first respondent did not hold a valid driving licence.
Hence, the first respondent had violated the insurance
policy conditions. Therefore, the second respondent may
be exonerated of its liability.
MACA No.3965 of 2019
5. The petitioner got herself examined as PW1 and
Exts A1 to A16 were marked in evidence. The second
respondent examined RW1 and marked Exts B1 to B4 in
evidence. The disability certificate of the petitioner was
marked as Ext C1.
6. The Tribunal, after analysing the pleadings and
materials on record, allowed the claim petition, in part,
by directing the second respondent to pay the
compensation amount and recover it from the first
respondent, on the finding that the first respondent had
violated the insurance policy conditions because the
driving licence produced by the first respondent was a
fake document as proved by RW1.
7. Aggrieved by the direction in the impugned award,
permitting the second respondent to recover the
compensation amount from the first respondent, the first
respondent is in appeal.
8. Heard Sri.Dinesh Mathew J.Murikan., the learned
MACA No.3965 of 2019
counsel appearing for the appellant/first respondent,
Smt.Sanjana R.Nair, the learned counsel appearing for the
first respondent/petitioner and Sri.P.K Manoj Kumar, the
learned counsel appearing for the second
respondent/Insurer on admission of the appeal.
9. The principle grounds of challenge in the
memorandum of appeal are: (i) whether the finding of
negligence as against the appellant/first respondent is
sustainable in law? (ii) whether the quantum of
compensation awarded by the Tribunal is reasonable and
just? and, (iii) whether the direction in the award
permitting the second respondent to pay the
compensation amount and recover it from the appellant is
correct in law?
Ground No.(i)
10. The specific case of the first
respondent/petitioner in the claim petition was that while
she was riding on a scooter along the Angamaly - Kalady
MACA No.3965 of 2019
MC road, due to the negligent driving of the offending
scooter by the first respondent, the accident was caused.
The appellant contended that he was not involved in the
accident, but had only helped the petitioner to be taken to
the Hospital. Actually, he was falsely implicated in the
criminal case. Even though he had submitted a complaint
before the Superintendent of Police, no action was taken.
11. In order to prove the assertion in the claim
petition, the petitioner got herself examined as PW1 and
marked Ext A5 charge-sheet filed by the Kalady Police in
crime No.121/2015.
12. As per Ext A5 charge-sheet, it was the appellant
who was found negligent in causing the accident.
13. A Division Bench of this Court in New India
Assurance Co. Ltd v. Pazhaniammal [2011 (3) KLT
648] has succinctly held that, prima facie, the production
of the charge-sheet is a sufficient evidence of negligence
for the purpose of a claim under Section 166 of the Act.
MACA No.3965 of 2019
The charge-sheet can be accepted as evidence of
negligence against the accused driver. If any party
disputes such charge-sheet, the burden is on such party
to adduce oral evidence and discredit the charge-sheet.
14. The above legal position has been reiterated by
another Division Bench of this Court in Kolavan v. Salim
[2018 (1) KLT 489] wherein it is held that once charge-
sheet is filed, the Tribunal will not be justified in finding
negligence contrary to the finding in the charge-sheet,
without there being any direct or corroborative evidence.
15. In the case at hand, even though the appellant
had contended that he was in no way involved in the
accident, he did not mount the box and let in any evidence
to discredit Ext A5 charge-sheet.
16. In addition to the material, due to the vehement
argument of the learned counsel appearing for the
appellant that the appellant was falsely implicated in the
case, this Court had directed the learned Government
MACA No.3965 of 2019
Pleader to obtain instructions as to what had transpired
subsequent to Ext A5 charge-sheet.
17. It is bought to the notice of this Court that, the
appellant had pleaded guilty to Ext A5 charge-sheet and
was convicted and sentenced to pay a fine of Rs.1,500/- on
27.6.2018 in S.T 2437/2015 of the Judicial First Class
Magistrate Court, Kalady. Therefore, the contention of the
appellant that he was falsely implicated in the above
crime can only be accepted with a pinch of salt. The fact
that the appellant pleaded guilty to Ext A5 charge sheet
and was convicted, proves that he was the person who had
caused the accident and his defence is totally frivolous and
without any bonafides. Hence, I answer ground No.(i)
against the appellant.
Ground No.(ii)
18. The first respondent had stated that she was a
Teacher by profession and was earning a monthly income
of Rs.43,984/-. To substantiate her contention, she had
MACA No.3965 of 2019
produced Ext A15 salary certificate. She also produced
Ext A12 leave certificate, to prove that she was on loss of
pay for 90 days.
19. Based on Exts A12 and A15, the Tribunal has
awarded the first respondent an amount of Rs.1,31,952/-
towards loss of earnings.
20. Likewise, the disability of the first respondent was
assessed by a Medical Board, pursuant to the direction of
the Tribunal. As per Ext C1 disability certificate issued by
the Medical Board, the first respondent is found to have a
functional disability of 15%. On the strength of Ext C1,
the Tribunal accepted the functional disability of the first
respondent and held that she is entitled to an amount of
Rs.1,13,400/- as compensation for loss due to disability.
21. Similarly, the Tribunal has also awarded
compensation under the pecuniary and non-pecuniary
heads, and has awarded the first respondent a total
compensation of Rs.4,01,172/- with interest and cost.
MACA No.3965 of 2019
22. On an appreciation of the pleadings and
materials on record, I find the compensation awarded to
be reasonable and just. Thus, I answer Ground No.(ii) also
against the appellant.
Ground No.(iii)
23. Even though the appellant had contended that he
had a valid driving licence, the second respondent
examined RW1, an Official of the Regional Transport
Office, Chennai, who produced Ext B4 letter stating that
their office had not issued any driving licence in favour of
the appellant. Hence, it was proved that the appellant did
not hold a driving licence as on the date of accident.
Neither did the appellant dispute the said revelation nor
let in any evidence to the contrary. In the above
circumstances, there is no error in the Tribunal permitting
the second respondent to pay the compensation amount
and recover it from the first respondent. Hence, I answer
ground No.(iii) also against the appellant.
MACA No.3965 of 2019
24. On an overall re-appreciation of the pleadings,
materials on record, I do not find any error in the
impugned award warranting admission of the appeal.
Hence, in exercise of the powers of this Court under
Order XLI Rule 11 of the Code of Civil Procedure, I
dismiss the appeal at the threshold. The parties shall bear
their respective costs.
SD/-
Sks/24.2.2022 C.S.DIAS, JUDGE
