The Insurance Company appealed an order awarding compensation to a petitioner injured in a motor accident. The Court held that the insurer failed to prove the petitioner was a passenger, and the Claims Tribunal's finding that he was a pedestrian was justified. The appeal was dismissed.
Appeal dismissed in limine without costs.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
TUESDAY, THE 4TH DAY OF DECEMBER 2012/13TH AGRAHAYANA 1934
MACA.No. 121 of 2012 ()
OPMV.543/2008 of M.A.C.T OTTAPPALAM
APPELLANT/3RD RESPONDENT IN O.P.(MV):
RELIANCE GENERAL INSURANCE CO.LTD 2ND FLOOR, VISHNU BUILDING, K.P.VALLON ROAD KADAVANTHRA, KOCHI-682020.
BY ADV. SRI.K.B.RAMANAND
RESPONDENT/CLAIMANT AND RESPONDENTS 1 AND 2 IN Original Petition(MV):
S/O.ASSAINAR, ETTILATHODI HOUSE, MARUTHUR P.O. VIA PUVAKODE, PALAKKAD-679306.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.11.2012, THE COURT ON 4.12.2012 DELIVERED THE FOLLOWING:
K.T.SANKARAN & M.L.JOSEPH FRANCIS JJ.,
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Dated this the 4th day of December, 2012
JUDGMENT
Joseph Francis J.,
This appeal is filed by the 3rd respondent/Insurance Company in O.P.(M.V.) No.543 of 2008 on the file of M.A.C.T., Ottapalam.
M.A.C.A. No.121 of 2012
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that vehicle. The petitioner claimed `3,50,000/- as compensation.
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counsel for the Insurance Company raised the following contentions:
(i) The Tribunal ought to have found that the petitioner was not a pedestrian as claimed by him, but a gratuitous passenger in the insured vehicle. This fact was clearly recorded in Ext.A5 wound certificate by the doctor who examined the petitioner immediately after the accident. PW1 also admitted during cross examination that he himself explained the details of the accident to the doctor.
(ii) The Tribunal ought to have found that Ext.B1 policy does not cover the risk of bodily injury to the petitioner who was a gratuitous passenger in the insured vehicle and hence the appellant is not liable to pay any compensation to the petitioner.
was travelling in the goods autorikshaw as a gratuitous passenger.
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The petitioner was examined as PW1. PW1 deposed that the accident occurred on 25.12.2007 while he was walking through the side of road the goods autorikshaw came and hit on him, as a result of which he sustained serious injuries. Ext.A5 is the copy of the wound certificate issued from the Royal Hospital, Kunnamkulam showing that the petitioner was examined on 25.12.2007 at 1.15 P.M. and at that time the petitioner had sustained fracture of shaft left femur, suspected fracture condyle left femur and the petitioner was referred to M.C.H., Thrissur. In Ext.A5 in the column 'history and alleged cause of injury' it is stated:
But at the time of cross-examination of PW1, no explanation was sought from him by the appellant for such a statement and attention of the PW1 was not invited to that statement. In connection with the accident, the police registered a case against the first respondent in O.P.(M.V.) as Crime No.455/07 of Thrithala Police Station under Sections 279 and 338 of the Indian Penal Code. Ext.A3 is the copy of the charge sheet submitted by the police against the first
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respondent after investigation. The appellant/third respondent did not take any steps to examine the Investigating Officer or any other responsible Police Officers to prove that at the time of accident the petitioner was travelling in the goods vehicle as a gratuitous passenger. In the absence of such contra evidence, we are of the view that the Claims Tribunal is perfectly justified in finding that the accident occurred while the petitioner was walking through the side of the road and the goods autorikshaw driven by the first respondent in a rash and negligent manner hit the petitioner as alleged by the petitioner. Therefore, we find no reason to interfere with the award passed by the Claims Tribunal.
Accordingly this appeal is dismissed in limine without costs as it is without any merits.
SD
K.T. SANKARAN,
(JUDGE)
SD M. L. JOSEPH FRANCIS, (JUDGE)
dl/
1 issue framed by the court
Whether the Claims Tribunal's award of compensation should be interfered with since the appellant failed to adduce evidence proving the petitioner was a gratuitous passenger.
RELIANCE GENERAL INSURANCE CO.LTD
E.T. ALI
P.S.ABDUL SAMMAD
P.T.MOHAMMAD SHJAREEF
K.T. SANKARAN
M.L. JOSEPH FRANCIS
As recorded by the court registry
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