Dismissed

The New India Assurance Company Ltd. v. Fasaludheen

Kerala HC10 Jan 2013MACA/1644/2011

Case brief

AI extract

What is this about?

In two appeals filed by the New India Insurance Company Ltd. against awards granted by the Motor Accidents Claims Tribunal, Punalur, the High Court dismissed the appeals. The Court upheld the Tribunal's finding that the driver of the car was solely responsible for the accident caused by rash and negligent driving, rejecting the appellant's claim of contributory negligence.

What did the court decide?

The appeals filed by the insurer were dismissed, leaving the Tribunal's awards for compensation intact.

The New India Assurance Company Ltd. Vs Fasaludheen — Insurance | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID

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THURSDAY, THE 10TH DAY OF JANUARY 2013/20TH POUSHA 1934

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MACA.No. 1644 of 2011 ( )

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AGAINST THE ORDER/JUDGMENT IN OPMV.634/2006 DATED 04-03-2011 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PUNALUR

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APPELLANT(S)/R3 IN OPMV 634/06:

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THE NEW INDIA ASSURANCE COMPANY LTD., KSFE BUILDING,CHINNAKKADA,KOLLAM BRANCH REPRESENTED BY ITS MANAGER,REGIONAL OFFICE KANDAMKULATHY TOWERS,M.G.ROAD,ERNAKULAM.

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BY ADV. SRI.LAL GEORGE

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RESPONDENT(S)/CLAIMANT AND R1 AND R2 IN OPMV:

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FASALUDHEEN, JASMINE MANZIL, ARKANNOOR P.O.,KARALIKONAM,ELAMADU VILLAGE-691 533.

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SAINULABDEEN, S/O.MYTHEENKANNU RAWTHER, SUNIL NIVAS,ARKANNOOR,KARALIKONAM-691533.

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ANWAR, S/O.SAINULABDEEN, SUNIL NIVAS, ARKANNOOR,KARALIKONAM-691533.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2013, ALONG WITH MACA NO.1734/11, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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uj.

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HARUN-UL-RASHID,J.

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M.A.C.A.NOS.1644 & 1734 OF 2011

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DATED THIS THE 10TH DAY OF JANUARY, 2013

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JUDGMENT

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The New India Insurance Company Ltd. is the appellant in both appeals. Appeals are directed against the common award in O.P. (MV).Nos.634/2006 & 516/2006 on the file of the Motor Accidents Claims Tribunal, Punalur. The Tribunal allowed O.P.(MV). Nos.516/2006 and 634/2006 and passed an award for realisation of 49,995/- and 27,575/- respectively with 7.5% interest per annum. The Insurance Company is directed to deposit the award amount within two months from the date of receipt of copy of the award.

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Petitioners in these original petitions were rider and pillion rider respectively in a motor cycle bearing Regn.No.KL3A/8171. The motor cycle was hit by an ambassador car bearing Regn.No. KL-2U/1248, namely, the offending vehicle, which came in the opposite direction. As a result of the accident the petitioners sustained injuries. Both sides did not adduce any oral evidence.

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-2-

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M.A.C.A.No.1644 & 1734/2011

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Exts.A1 to A12 were marked on the side of the claimants.

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Placing reliance on Ext.A3 scene mahazar and

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Ext.A6 charge sheet the appellant contended that the accident took place in the middle portion of the tarred road and hence the contributory negligence should have been presumed, when the motor cycle involved in the accident is overloaded with two additional passengers over and above the permitted capacity. It is submitted that there is no oral or documentary evidence controverting the case of contributory negligence alleged against the claimants. Learned counsel for the appellant pointed out that considering the nature of the accident as revealed from the mahazar the Tribunal ought to have apportioned the blameworthiness at least in a ratio 50:50. The contention raised by the appellant that three persons were found travelling in the motor cycle which involved in the accident is on the basis of the statement in Ext.A6 charge sheet. Appellant has not chosen to enter the box and to adduce formal evidence to prove that three

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-3-

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M.A.C.A.No.1644 & 1734/2011

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persons were travelling in the motor cycle. Appellant has not

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chosen to adduce evidence in support of their case. The 2^nd contention raised is that the accident took place in the middle portion of the tarred road and therefore there is contributory negligence on the part of the claimants in causing the accident. The tribunal considered the documentary evidence and found that the claimants sustained injuries in the accident due to the rash and negligent driving of the 2^nd respondent in the original petition. The Tribunal also noticed the fact that as per Ext.A6 charge sheet in Crime No.408/2005 the 2^nd respondent was arrayed as accused for rash and negligent driving. It is also found that the police did not find any negligence or rash driving on the part of the claimants. The Tribunal on evidence found that it was the driver of the car who caused the accident and therefore held that there is no contributory negligence on the part of the claimants. On the basis of the materials on record, only conclusion possible is that the driver of the car has caused the accident. There is no sufficient

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-4-

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M.A.C.A.No.1644 & 1734/2011

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proof to show that there was contributory negligence on the part of

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the claimants in these original petitions. No sustainable grounds

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are made out by the appellant for interference by this Court.

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The appeals fail and they are dismissed.

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HARUN-UL-RASHID, JUDGE.

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kcv.

The New India Assurance Company Ltd. v. Fasaludheen

Case brief

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The New India Assurance Company Ltd. v. Fasaludheen

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