Dismissed

A.Hydher Ali v. the National Insurance Company Limited

Kerala HC23 May 2013MACA/1695/2012

Case brief

AI extract

What is this about?

In this Motor Accident Claims Appeal, the High Court of Kerala dismissed the appellant's challenge against the Tribunal's award which apportioned 50% liability equally. The Court held that without oral or documentary evidence proving specific negligence, the Tribunal's equal division of liability was correct.

What did the court decide?

The appeal preferred by the appellant against the Tribunal's award is dismissed.

A.Hydher Ali Vs the National Insurance Company Limited — Motor Accident Claims | 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 V.K.MOHANAN

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THURSDAY, THE 23RD DAY OF MAY 2013/2ND JYAISHTA 1935

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MACA.No. 1695 of 2012 ()

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AGAINST THE ORDER/JUDGMENT IN OPMV 861/2007 of M.A.C.T., MANJERI DATED 14-01-2011

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APPELLANT / PETITIONER :-:

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A.HYDHER ALI, S/O.MOIDEEN, NEW LAND, MASANAGUDI GUDALLUR, NILGIRIS, TAMIL NADU.

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BY ADV. SRI.P.SAMSUDIN

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RESPONDENT/3RD RESPONDENT:-:

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THE NATIONAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, PANDIKKAD ROAD, P.O.MANJERI PIN - 676 121.

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R BY ADV. SMT.SARAH SALVY R BY SRI.M.A.GEORGE

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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V.K.MOHANAN, J.

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M.A.C.A.No.1695 of 2012

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Dated this the 23^rd day of May, 2013

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JUDGMENT

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The appellant herein is the petitioner in O.P.(M.V.). No.861/2007 of the Motor Accidents Claims Tribunal, Manjeri. Aggrieved by the award dated 14.01.2011, fixing only 50% liability on the first respondent and denying 50% of compensation, the appellant preferred this appeal.

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The case of the petitioner is that his car bearing

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registration number TN 07Y 7213 involved in an accident at about 9.15 a.m. on 04.02.2007 at Pottammalmadu. According to the appellant, another car bearing registration number KL 10L 8911, belonging to the second respondent and driven by the first respondent hit against his vehicle. Thus, according to the petitioner, the accident had taken place due to the negligent and careless driving of the first respondent of which the vehicle owned by the second respondent. In the court below, first and second respondents remained ex-parte. The third respondent insurance company admitted the insurance coverage for the

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M.A.C.A.No.1695 of 2012

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offending vehicle at the time of the alleged incident and they contended that it is for the petitioner to prove the accident as alleged by him.

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During the trial of the case, no witness was examined but Annexures A1 to A5(b) were marked as petitioner's exhibits. On the basis of the available evidences on material, the Tribunal found that though the petitioner had spent Rs.29,344.50/- as per Ext.A5 series of bills, the petitioner limited his claim to the amount shown in Exts.A2 and A3. According to the Tribunal, the petitioner is entitled to realise half of the amount indicated in Exts.A2 and A3 especially in the light of the fact that liability of the first respondent is found to be 50%. Accordingly, an award holding that the petitioner is entitled to get Rs.9,548/- as compensation with 9% interest per annum was passed and the third respondent is directed to deposit the amount with interest within a period of one month from the date of award.

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M.A.C.A.No.1695 of 2012

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The above award of the Tribunal is challenged by the claimant/petitioner in this appeal.

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Heard the counsel for the appellant as well as the respondent insurance company.

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I have considered the contentions advanced by the counsel for the appellant and the third respondent insurance company and I have perused the award impugned in this appeal.

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The learned counsel for the appellant by showing Annexure A4 photographs submitted that the vehicle owned by the second respondent came and hit against the vehicle of the petitioner and it is not hit on collision so as to fix 50% liability from the petitioner as well as from the second respondent. According to the learned counsel for the respondent, the trial court has correctly arrived at compensation amount, since the liability of the first respondent will come only 50%. Having regard to the nature of case, according to the counsel for the second respondent,

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M.A.C.A.No.1695 of 2012

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there is no scope of any interference, by this Court.

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It is relevant to note that in the present case, no documentary evidence was produced or no witness was examined to prove the nature of the incident and to show how the accident had taken place. According to me, the mere production of A4 photographs are not sufficient to discharge the burden of the appellant so as to prove his case and allegation that the negligence was on the part of the second respondent or on the first respondent. The learned Judge of the Tribunal has specifically found that the petitioner has not gone beyond proving the accident and the damage caused to the vehicle which he claims belongs to him. The above finding of the court below is absolutely correct and no evidence is adduced by the petitioner to show that the accident had taken place due to the negligence of the respondent Nos. one or two. According to me, in the absence of any positive evidence to show that the accident was resulted due to the negligence on the part of

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M.A.C.A.No.1695 of 2012

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the respondent Nos. one or two, it cannot be said that the Tribunal is wrong in apportioning the negligence between the two drivers equally. In the absence of any oral or documentary evidence in support of the contentions of the appellant, I find no merit in this appeal and it is deserved to be dismissed.

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In the result, the above appeal is dismissed.

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V.K.MOHANAN, JUDGE

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A.Hydher Ali v. the National Insurance Company Limited

Case brief

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A.Hydher Ali v. the National Insurance Company Limited

Case brief

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