Dismissed

The Oriental Insurance Company Ltd. v. Preetha Tillu

Kerala HC20 Jun 2018MACA/1123/2012

Case brief

AI extract

What is this about?

In these appeals filed by an insurance company against an award of the Motor Accident Claims Tribunal, the High Court rejected the insurer's contention regarding the negligence of the deceased rider. Finding no merit in the appeal, the Court dismissed the matter and confirmed the Tribunal's award of compensation.

What did the court decide?

The appeals were dismissed and the award confirmed.

The Oriental Insurance Company Ltd. Vs Preetha Tillu — Motor Accident Claims | Kerala HC (2018)

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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 P.D.RAJAN

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WEDNESDAY, THE 20TH DAY OF JUNE 2018 / 30TH JYAISHTA, 1940

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MACA.No. 1123 of 2012

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AGAINST THE AWARD IN OPMV 1405/2008 of M.A.C.T.,KOTTAYAM DATED 06-12-2011

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APPELLANT/3RD RESPONDENT

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THE ORIENTAL INSURANCE COMPANY LTD. KOTTAYAM, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULM NORTH, KOCHI -18.

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BY ADV.SRI.GEORGE CHERIAN (THIRUVALLA)

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RESPONDENT(S)/CLAIMANTS:

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PREETHA TILLU

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PAMPADIKANDATHIL HOUSE, POTHENPURAM.P.O, KOTTAYAM - 686502.

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TINO KORA KURIAN (MINOR) D.O.B 27/08/199 PAMPADIKANDATHIL HOUSE, POTHENPURAM.P.O, KOTTAYAM - 686502.

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TIMIYA KURIAN (MINOR) D.O.B 18/06/2002 PAMPADIKANDATHIL HOUSE, POTHENPURAM.P.O, KOTTAYAM - 686502. (RESPONDENTS 2 AND 3 ARE MINORS AND ARE REPRESENTED BY THEIR MOTHER FIRST RESPONDENT

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PONNAMMA KURIAN

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PAMPADIKANDATHIL HOUSE, POTHENPURAM.P.O, KOTTAYAM - 686502.

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PRINCE K. EMMANUEL

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KELACHI HOUSE, THOMBIKANDAM.P.O, RANNI - 689 676.

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EMMANUEL ANTONY

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KELACHI HOUSE, THOMBIKANDAM.P.O, RANNI - 689 676.

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R1,R 4 BY ADV. SRI.K.P.SUJESH KUMAR

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2018, ALONG WITH MACA 1432 OF 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.D.RAJAN, J

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................................................ M.A.C.A.Nos.1123 & 1432 of 2012 ................................................ Dated, 20^th June 2018

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JUDGMENT

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These appeals are preferred against the award in O.P.(MV)Nos.1405 of 2008 and 1482 of 2008 of MACT, Kottayam by the insured. O.P(MV)No.1405 of 2008 was filed by the legal heirs of the rider of a motor cycle No.KL 05/Q 9268 and O.P(MV)No.1482 of 2008 was filed by the pillion rider. The learned Tribunal awarded Rs.16,40,736/with 7.5% interest and cost in O.P(MV)No.1405 of 2008 and Rs.14,000/- with 7.5% interest and cost in O.P(MV)No.1482 of 2008 and directed the appellant to satisfy the award. Being aggrieved by that, the insurer of the offending vehicle preferred these appeals.

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The claimants case in the lower court was that on 22.6.2008 at 9.30 pm, one Tillu P Kurian was riding KL 05 Q 9268 along K K Road from west to east. When he reached at Kalathipadi, another motor cycle KL-03 M/5817 ridden in a rash and negligent manner by the first respondent, hit against the motor cycle in which the

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MACA 1123/2008 & 1432/2008 2

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deceased was travelling. As a result, Tillu P Kurian, rider of KL-05/Q 9268 sustained serious injuries and while undergoing treatment at Medical College Hospital, Kottayam he succumbed to the injuries. The pillion rider also sustained serious injuries. The rider and owner of the offending motor cycle contended that the accident was due to the negligence of the deceased. The insurer admitted the insurance of the vehicle, KL-03/M 5817. The claimants did not adduce any oral evidence, but their documents were marked as Ext.A1 to A7. Respondent's documents were marked as Ext.B1 to B4.

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Learned counsel appearing for the appellant contended that the accident was due to the negligence of the deceased, who was riding a motor cycle with two pillion riders which is mentioned in the F.I.Statement. In this context, I have examined whether there was rash and negligent riding of the vehicle by the deceased. Ext.A1 is the F.I.R in Crime No.352 of 2008 of Kottayam East Police Station. Ext.A2 is the charge sheet. Ext.A3 scene mahazar shows that the accident occurred 2.37

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MACA 1123/2008 & 1432/2008 3

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metres north from the southern tar end. The road has a width of 6.16 metres and a road margin southern side has 1.16 metres. The tyre marks were not properly noticed by the police officer to trace out the place of occurrence. The respondents produced Exts.B1, B2, B3 and B4 to substantiate their contention. Ext.A4 shows that the death was due to the injury sustained in the accident. Ext.A7 wound certificate also corroborate that pillion rider sustained injuries in the accident. Ext.A2 final report shows that the rider of KL-3/M 5817 was rash and negligent for the accident. In the absence of any corroborative evidence to prove the rash and negligent driving of the deceased, it is difficult to draw a presumption on the basis of Ext.A3(B2) to prove the rash and negligent driving of the deceased. The learned counsel relied on the F.I.Statement that was not specifically marked, there is no evidence to admit it as a corroborative piece of evidence to prove negligence. The Investigating Officer was also not examined. No independent witnesses were examined. If that be so,

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MACA 1123/2008 & 1432/2008

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there is no merit in this contention and these appeals are dismissed accordingly. The compensation awarded by the

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Tribunal is confirmed.

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P.D.RAJAN, JUDGE

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lgk

The Oriental Insurance Company Ltd. v. Preetha Tillu

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Company Ltd. v. Preetha Tillu

Case brief

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