United India Insurance Co. Ltd vs Xavier And 2 Others
2022 Latest Caselaw 6165 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. 2492 OF 2010
AGAINST THE AWARD IN O.P(MV) 1877/2004 OF MOTOR ACCIDENT
                  CLAIMS TRIBUNAL, ALAPPUZHA
APPELLANT/3RD RESPONDENT IN O.P.(M.V):

            UNITED INDIA INSURANCE CO. LTD.,
            NSS UNION BUILDING, CHERTHALA,
            REP. BY DEPUTY, MANAGER,
            THE UNITED INDIA INSURANCE COMPANY LTD.,,
            REGIONAL OFFICE, "SARANYA", HOSPITAL ROAD,,
            ERNAKULAM - 682 011.

            BY ADV. SRI.P.K.MANOJ KUMAR, SC

RESPONDENTS/PETITIONER & 1ST&2ND RESPONDENTS IN O.P.
(M.V):

    1       XAVIER, S/O.AUGUSTINE,
            CHERIYATHARAYIL, C.S.P., 13,
            CHERTHALA-688 552.

    2       JOHN, S/O. MARTIN,
            PALLIKKATHAYIL, C.S.P., 15, CHERTHALA-688 552.

    3       MERCY JOSEPH, W/O.BENJAMIN JOSEPH,
            PALLIKKATHAYIL HOUSE, ARTHUNKAL P.O.,
            CHERTHALA-688 530.

            BY ADV. SRI.P.R.MILTON


        THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING    ON   01.06.2022,    THE   COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
 M.A.C.A. No.2492 of 2010
                                  2




                            JUDGMENT

Heard the learned counsel for the

appellant. No representation for the

respondents in this matter.

2. In this appeal filed at the instance

of the Insurance Company, the 3rd respondent,

award in O.P.(M.V) No.1877/2004 dated

19.02.2009, is under challenge on the ground

that the finding of the Tribunal fastening

negligence on the part of the 2nd respondent

is erroneous.

3. It is submitted by the learned

counsel for the petitioner that though the

occurrence was on 30.11.2002, police

registered crime in this matter on the basis

of a private complaint lodged by the

complainant on 23.05.2003 before the

Magistrate court. It is submitted further

that though police filed Ext.A3 charge M.A.C.A. No.2492 of 2010

sheet, attributing negligence on the part of

the 2nd respondent, the court below failed to

give emphasis to Ext.X1, copy of GD entry of

Arthunkal Police Station. According to the

learned counsel, as per the GD entry, on

03.12.2002 (after three days of occurrence),

it was stated that the alleged offending

vehicle, KL-4/D-1607 was ridden by the

original petitioner himself as reported by

the said petitioner and in consequence

thereof, the accident occurred. Thus the

police charge cannot given emphasis to find

negligence, is the submission of the learned

counsel for the petitioner.

3. On perusal of Ext.X1, the submission

made by the learned counsel for the

petitioner found to be having force.

However, facts remain is that nobody was

examined by the appellant in order to

negative Ext.A3 final report. Similarly, to M.A.C.A. No.2492 of 2010

prove the contents of Ext.X1 and disbelieve

Ext.A3 in the context of Ext.X1 also nobody

was examined. In this context, the court

below found negligence against the 2nd

respondent acting on the police charge.

Since no convincing evidence otherwise

adduced to give emphasis to Ext.X1, ignoring

the police charge, I am not inclined to

revisit the finding of the Tribunal in the

matter of negligence.

Accordingly, the challenge at the

instance of the Insurance Company found

against. Therefore, this appeal stands

dismissed.

Sd/-

A.BADHARUDEEN, JUDGE.

ww M.A.C.A. No.2492 of 2010

APPENDIX

APPELLANT'S ANNEXURES:

ANNEXURE AI TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE APPELLANT/3RD RESPONDENT.

ANNEXURE A2 TRUE COPY OF THE AWARD DATED 19.2.2009 IN O.P.1877/2004 OF THE MACT, ALAPPUZHA AND TYPED COPY OF AWARD.

ANNEXURE A3 TRUE COPY OF THE RECEIPT NO.12 DATED 21.10.2010 ISSUED BY MACT, ALAPPUZHA.