T.A.Ansad vs Sanjay Kumar Thunjhunwala
2022 Latest Caselaw 6049 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
            THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
   WEDNESDAY, THE 1ST DAY OF JUNE 2022 / 11TH JYAISHTA, 1944
                       MACA NO. 2599 OF 2010
AGAINST THE ORDER/JUDGMENT IN OPMV 1292/2006 OF MOTOR ACCIDENT
                     CLAIMS TRIBUNAL, ERNAKULAM
APPELLANT/PETITIONER:

            T.A.ANSAD
            AGED 25 YEARS
            S/O.ABDUL REHMAN,
            THAZHATHUVALAPPIL HOUSE,
            KALADI.P.O, MANNOOR DESOM,
            MALAPPURAM DISTRICT.
            BY ADV SRI.K.V.RAJAN


RESPONDENTS/RESPONDENTS:

    1       SANJAY KUMAR THUNJHUNWALA
            13, ARMEMIAN STREET,
            CALCUTTA-700 001, WEST BENGAL.
    2       P.VIJESH KUMAR
            S/O.VIKRAMAN NAIR,
            VRINDAVANAM, SHINE ROAD,
            VYTTILA P.O., KOCHI - 682 019
    3       ORIENTAL INSURANCE CO.LTD
            THAPAR HOUSE, 25-B-T-MAHARAJ ROAD,
            CALCUTTA-700 001.
            BY ADVS.
            GEORGE A.CHERIAN
            ALEXY AUGUSTINE
            GEORGE CHERIAN (SR.)


     THIS    MOTOR    ACCIDENT   CLAIMS   APPEAL   HAVING   BEEN
FINALLY HEARD ON 31.05.2022, THE COURT ON 01.06.2022
DELIVERED THE FOLLOWING:
 M.A.C.A.No.2599 OF 2010
                                 2



                                                     "CR"

                           JUDGMENT

Award in O.P.(MV) 1292/2006 dated 22.06.2010 on the files

of the Motor Accidents Claims Tribunal, Ernakulam is under

challenge in this appeal at the instance of the petitioner before

the Tribunal. Respondents herein are the respondents before the

Tribunal.

2. An interesting question emerges for determination is;

Can contributory negligence be found against the driver of the

other vehicle involved in the accident solely relying on the

recitals in the scene mahazar, ignoring the police charge,

attributing negligence only against one driver, in accident cases

where two vehicles involved?

3. The short facts of the case :- The appellant, who

suffered injuries in consequence of a motor accident occurred

on 27.11.2005 at 10.30 p.m., approached the Tribunal and

claimed compensation to the tune of Rs.2,32,500/- attributing

negligence against the driver of the car bearing registration M.A.C.A.No.2599 OF 2010

No.WB 2/L-1243 driven by the second respondent.

4. While opposing the claim, the Insurance

Company admitted the policy, but disputed the accident by

denying negligence against the second respondent as well as

by alleging contributory negligence on the part of the

petitioner, who also was riding a motor cycle bearing

registration N.KL-2 6-B/4394.

5. During evidence, the Tribunal marked Exts.A1 to

A12 on the part of the petitioner and no evidence adduced

from the side of the respondents.

6. It is submitted by the learned counsel for the

appellant/petitioner that even though the Police laid charge

against the second respondent/the driver of the car bearing

registration No.WB-2/L-1243, the learned Tribunal found

contributory negligence on the part of the petitioner and

thereby fixed the percentage at 50. Consequently, award

was reduced by 50%. It is submitted by the learned M.A.C.A.No.2599 OF 2010

counsel for the appellant further that the Tribunal merely

relying on the recitals in the scene mahazar found 50%

contributory negligence without insisting for convincing

evidence to hold so, despite the fact that the police laid

charge against the second respondent. According to the

learned counsel for the appellant the finding of the Tribunal

in the matter of contributory negligence is erroneous and

the same is liable to be set aside. He submitted further

that the appellant is satisfied with the said course of action

and the appellant does not want any increase in the award.

7. The learned counsel for the Insurance Company

opposed the said contention. However, the learned counsel

also could not justify 50% contributory negligence on the

part of the petitioner.

8. Thus the pertinent question arises herein is; Can

contributory negligence be found against the driver of the other

vehicle involved in the accident solely relying on the M.A.C.A.No.2599 OF 2010

recitals in the scene mahazar, ignoring the police charge,

which attributes negligence only against one driver, in

accident cases where two vehicles involved. In this case,

indisputably, as per Ext.A8, the Police laid charge against

the second respondent, the driver of the car. But the

Tribunal given much emphasis to the recitals in the scene

mahazar to disbelieve the police charge and to find

contributory negligence against the petitioner. It is true

that in cases of collision between vehicles, possibility of

contributory negligence could not be ruled out. But in order

to find to contributory negligence, convincing evidence is

necessary. If the police charge attributes contributory

negligence, the same can be relied on, to find contributory

negligence. But in cases where the police charge attributes

negligence against the driver of one vehicle involved,

unless there is no other independent evidence adduced or

available to prove the contributory negligence, mere

recitals in the scene mahazar would not suffice. M.A.C.A.No.2599 OF 2010

9. In view of the above discussion, I have no

hesitation to hold that when contributory negligence is

alleged, it is the duty of the party, who alleges the same to

prove the same, for which, no doubt, final report can be

given emphasis. If the final report says that the accident is

the contribution of negligence on the part of the driver of

one of the vehicle, in the absence of any other convincing

and cogent evidence, contributory negligence could not be

found, merely relying on the recitals in the scene mahazar.

Therefore, in the case on hand, the Tribunal went wrong in

fixing the contributory negligence. Therefore, it has to be held

that the Tribunal fixed contributory negligence at 50%

without support of any convincing and cogent evidence,

that too overlooking the Police charge otherwise. In view of

the matter, the finding entered into by the Tribunal fixing

50% contributory negligence against the petitioner is illegal

and the same is accordingly set aside.

M.A.C.A.No.2599 OF 2010

Consequently, the appeal stands allowed and it is held

that the Insurance Company is liable to deposit

Rs.1,16,250/- fixed by the Tribunal along with the interest

allowed by the Tribunal as compensation in the name of the

petitioner with liberty to the petitioner to release same on

deposit.

Sd/-

A. BADHARUDEEN JUDGE

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