Allowed

K.K.Sadanandan v. the M.D., Kerala State Co-Op.Consumer

Kerala HC1 Mar 2017MACA/763/2011

Case brief

AI extract

What is this about?

The High Court set aside the Tribunal award that dismissed a RTA claim based on the finding that the appellant drove the Jeep. The Court held the Tribunal misappreciated evidence, including a police charge sheet and victim compensation records proving the 3rd Respondent driver was injured and treated at a hospital shortly after the accident. The matter is remanded to award compensation.

What did the court decide?

Impugned award set aside. O.P. (MV) No.207/2003 restored. Matter remanded to Tribunal to award compensation within 3 months.

K.K.Sadanandan Vs the M.D., Kerala State Co-Op.Consumer — Motor Accident Claims | Kerala HC (2017)

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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 C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V.

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WEDNESDAY, THE 1ST DAY OF MARCH 2017/10TH PHALGUNA, 1938

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MACA.No. 763 of 2011

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AGAINST THE AWARD IN OPMV 207/2003 of M.A.C.T.,PERUMBAVOOR DATED 0605-2009

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APPELLANT/PETITIONER:

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K.K.SADANANDAN, S/O. K. SUKUMARAN,

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KAVUMBATTU MANAYAKUDY HOUSE, T.B.ROAD, ANGAMALY, (BEING DISABLED REP.BY HIS WIFE, M.K.BHANU AS NEXT FRIEND).

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BY ADVS.SRI.P.G.JAYASHANKAR KUM.P.G.GAYATHRI

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RESPONDENTS/RESPONDENTS:

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1. THE MANAGING DIRECTOR, KERALA STATE CO-OP. CONSUMER FEDERATION, REGIONAL OFFICE,, TRIVANDRUM-695 001.

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2. NEW INDIA ASSUSRANCE CO.LTD., OPPOSITE NEW MUNICIPAL BUS STAND,,

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THRIPUNITHARA- 682 301.

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3. RAVIKUMAR, S/O.MADHAVAN PILLAI, T.C.9/951, PANIKERS LANE, SASTHAMANGALAM,, TRIVANDRUM.

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R2 BY ADV. SRI.P.G.GANAPPAN R1 BY ADV. SRI.JOY GEORGE,SC,STATE CO-OP.CONSUMERS

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.K. ABDUL REHIM & SHIRCY V.,JJ.

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==============================

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M.A.C.A. No. 763 of 2011

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============================== Dated this the 1^st day of March, 2017

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JUDGMENT

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C.K.Abdul Rehim, J.

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Claimant before the Motor Accidents Claims Tribunal, Perumbavoor in O.P.(MV) No. 207/2003 is the appellant herein challenging the Award, to the extent it dismissed the claim petition. Findings of the Tribunal is to the effect that, at the time of the accident the claimant himself was driving the Jeep and that the accident occurred only on account of his own negligence. The Tribunal observed that, since the claim petition is one filed under Section 166 of the Motor Vehicles Act, the claimant had failed to prove the negligence on the part of the additional 3^rd Respondent which was attributed in the claim petition. The appellant herein had

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assailed the Award as one issued on a total perverse appreciation of the evidence on record.

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Heard; learned counsel for the appellant and the learned Standing Counsel appearing for the 2^nd Respondent. Specific case of the Appellant before the Tribunal was that the accident occurred on 13.8.2002 at 3.45 p.m. at a place near Feroke Check Post near Kozhikode. It is the case that the accident occurred when he was travelling in a Jeep driven by the additional 3^rd Respondent before the Tribunal. The accident occurred when the Jeep hit on the back side of a Lorry which was parked on the Public Road. It is the specific case of the claimant that the accident occurred due to rash and negligent driving of the Jeep by the 3^rd Respondent. The 2^nd Respondent being the Insurer of the Jeep was claimed to have vicarious liability for payment of the compensation.

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In evidence, the Appellant had produced Exts.A1 to A5 documents which pertain to the criminal case registered

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with respect to the accident. The entire C.D. file of the case is marked as Ext.X2. On a perusal of the Police Records and the C.D. file it is evident that the FIR was registered at about 11 a.m. on the same day based on a petition submitted by one Sri Gangadharan who is the Driver of the Lorry on which the Jeep had collided. It is specifically stated in the complaint itself that the two persons have sustained injuries and they were taken to the hospital by himself, the cleaner of the Lorry and by another person. C.D. file contains statement of all the three persons which corroborates the fact that two persons have sustained injuries in the accident and they were taken to the Medical College Hospital for treatment. Evidently, the police had charge sheeted the 3^rd respondent for offences punishable under Sections 279 and 338 of IPC. Ext.A3 is the copy of the Final Report (Charge Sheet). From Ext.A5 it is evident that the 3^rd Respondent had pleaded guilty before the Magistrate's Court and he was sentenced to pay fine.

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MACA 763/2011

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Ext.A4 is the Wound Certificate with respect to the examination of the claimant at the Medical College Hospital, Calicut. It would indicate that he was admitted at 4.15 a.m. on 13.8.2002. The history and alleged cause of the injury mentioned in Ext.A4 is that “RTA, (patient found lying in the Jeep following a Jeep x Lorry accident) at around 3.30 a.m. near Feroke Check Post on 13.8.2002.” It is also mentioned that the patient was unconscious. We have perused Ext.X2 (CD file) which contains so many reports indicating the progress of investigation of the case. All such reports would indicate that both the claimant as well as the 3^rd Respondent were admitted to the Medical College Hospital and had undergone treatment therein. It is evident from the C.D. file that arrest of the 3^rd Respondent was recorded on 17.8.2000 when he surrendered before the Police Station, after his discharge from the Medical College Hospital. There is yet another document available in the C.D. file, which is a request made by the Accounts Officer of the Consumer

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Federation Ltd. attached to the Regional Office, Kozhikode. The said request is addressed to the Circle Inspector of Police, City Traffic Police Station, Kozhikode. The request is to return the Government records and files contained in the Jeep which involved in the accident on the said date. In the said request it is mentioned that, in the accident the Driver of the Jeep as well as the claimant who is an officer of the Consumerfed had sustained injuries and they were admitted at the Medical College Hospital, Calicut. Further, the Inspection Report of the Jeep (AMVI Report) which is available in the C.D. file would indicate that major damages sustained to the Jeep is of its front left side. But the Tribunal observed that, the 1^st respondent who is the owner of the vehicle has not stated anything regarding the Driver of the offending vehicle in their written statement. The Tribunal further found that the 1^st Respondent has no case that the 3^rd Respondent had sustained injuries in the accident in question. Observation of the Tribunal is to the

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effect that the claimant had failed in producing any scrap of paper regarding the injuries sustained to the Driver and the finding that it is impossible to assume that the driver had recklessly escaped from the Jeep without any injury, it was concluded that at the time fo the accident the claimant himself was driving the Jeep. Based on the factual aspects available on record, we may constrain to observe that there is total mis-appreciation of the evidence and the Tribunal went on a total misconception that the 3^rd Respondent was not present in the Jeep.

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When the appeal was taken up for consideration before this Court, a direction was issued to the 1^st Respondent to produce log book of the vehicle in question containing entries on the date of the accident. In reply to the said direction, the Managing Director of the 1^st Respondent had filed an affidavit dated 9.1.2014 swearing that the log book of the vehicle kept in the office is misplaced and it could not be traced out. In the said

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affidavit it is stated that the Manager of the Consumerfed had sustained injuries in the accident which occurred on 13.8.2002 while travelling in the vehicle which was driven by one Ravikumar who was a temporary driver of the Consumerfed. It is also mentioned in the affidavit that the Managing Committee of the Consumerfed had taken a Resolution on 12.10.2002 by which it was resolved to meet the treatment expenses of the appellant as well as the 3^rd Respondent. A copy of the Resolution adopted in this regard as well as a copy of the bill indicating transport of the 3^rd Respondent in an ambulance from Koyas Hospital (Feroke Chungam) to the Medical college Hospital, Calicut on 13.8.2002 are also produced.

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All the evidence would clearly establish that the accident occurred when the 3^rd Respondent was driving the Jeep and that it is only due to his negligence that the accident occurred. The finding of the Tribunal with respect to the alleged failure on the part of the claimant to produce

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the wound certificate of the 3^rd Respondent, is totally immaterial.

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Under the above mentioned circumstances, the impugned Award is liable to be set aside, based on the finding that the accident in question occurred due to rash and negligent driving of the Jeep involved in the accident by the 3^rd Respondent at the relevant time. We are of the opinion that, based on the above findings, the Tribunal has to arrive at a conclusion regarding the just and reasonable compensation which could be awarded in the case. For the said purpose, the case need to be remanded.

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Hence the impugned award is hereby set aside. O.P. (MV) No.207/2003 will stand restored on the files of the Motor Accidents Claims Tribunal, Perumbavoor. The Tribunal shall consider the matter and dispose of the same afresh based on the findings contained as above. Taking into consideration of the fact that the claim is of the year 2003, the Tribunal shall take all earnest efforts to dispose of

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the O.P.(MV) at the earliest, at any rate, within three months from the date of receipt of a copy of this judgment.

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It is made clear that the appellant/claimant will be entitled to approach the Tribunal seeking interim relief under Section 140 of the Motor Vehicles Act, if so advised.

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The parties are directed to appear before the Tribunal on 28.3.2017.

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Sd/C.K. ABDUL REHIM JUDGE

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Sd/SHIRCY V. JUDGE

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ks.

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True copy

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P.S. To Judge

K.K.Sadanandan v. the M.D., Kerala State Co-Op.Consumer

Case brief

What is this about?

What did the court decide?

K.K.Sadanandan v. the M.D., Kerala State Co-Op.Consumer

Case brief

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What did the court decide?

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