Allowed

Icici Lombard General Insurance Co. Lltd. v. Aboobacker

Kerala HC6 Jul 2021MACA/807/2014

Case brief

AI extract

What is this about?

The High Court allowed the appeal by the insurer, holding that the Tribunal erred in imputing negligence solely to the appellant while ignoring the Police charge against the other driver. Relying on Tataをご紹介します Pazhaniammal's case, the Court directed both insurers to share liability equally.

What did the court decide?

Award shared equally (50:50) between the appellant/6th respondent and the 3rd respondent/insurer.

Icici Lombard General Insurance Co. Lltd. Vs Aboobacker — Motor Accident Claims | Kerala HC (2021)

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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 A. BADHARUDEEN

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TUESDAY, THE 6^TH DAY OF JULY 2021 / 15TH ASHADHA, 1943

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MACA NO. 807 OF 2014

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AGAINST THE AWARD DATED 9.12.2013 IN OPMV 526/2010 OF MOTOR ACCIDENT

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CLAIMS TRIBUNAL, OTTAPPALAM

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APPELLANT:6TH RESPONDENT

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M/S.ICICI LOMBARD GENERAL INSURANCE CO. LLTD. KANNANKORG ESTATE, 3RD FLOOR, SHANMUGHAPURAM ROAD, MARINE DRIVE, ERNAKULAM, PIN 670 001.

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BY ADV SRI.R.AJITH KUMAR (128/84)

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RESPONDENTS:CLAIMANTS & RESPONDENTS 1 TO 5 & 7

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1	ABOOBACKER, AGED 57, S/O.MAMMUTTY,KUNNATHEPEEDIKAKKAL, NELLAYA,CHERPLASSERY 679 335
2	PATHUMMA (DIED) W/O.ABOOBACKER, KUNNATHEPEEDIKAKKAL, NELLAYA,CHERPLASSERY 679 335
3	ABDUL KHADER, AGED 50 S/O.ABOOBACKER,KUNNATHEPEEDIKAKKAL, NELLAYA,CHERPLASSERY 679 335
4	UMMER, AGED 48 S/O.ABOOBACKER, KUNNATHEPEEDIKAKKAL, NELLAYA, CHERPLASSERY 679 335
5	RUKHIA, AGED 46 D/O.ABOOBACKER, KUNNATHEPEEDIKAKKAL, NELLAYA, CHERPLASSERY 679 335
6	SAKEENA, AGED 45 YEARS, D/O.ABOOBACKER, KUNNATHEPEEDIKAKKAL, NELLAYA, CHERPLASSERY 679 335
7	ASIA, AGED 43 YEARS D/O.ABOOBACKER, KUNNATHEPEEDIKAKKAL, NELLAYA,CHERPLASSERY 679 335

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MACA NO. 807 OF 2014 :2:

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8	SEENATHUL FOUSIA, AGED 41 D/O.ABOOBACKER, KUNNATHEPEEDIKAKKAL, NELLAYA,CHERPLASSERY 679 335
9	AMINA, AGED 37 YEARS D/O.ABOOBACKER, KUNNATHEPEEDIKAKKAL, NELLAYA, CHERPLASSERY 679 335
10	SHAMEER ALI, AGED 39 YEARS S/O.ABOOBACKER, KUNNATHEPEEDIKAKKAL, NELLAYA,CHERPLASSERY 679 335
11	M.P.GOPINATH, AGED 40 YEARS S/O.KUMARAN, MANNAPALLIYALIL HOUSE, MULAYANKAVU, KULUKKALLUR, PALAKKAD 679 335
12	GOPALAN, AGED 43 YEARS S/O.KOLAVAN, KANDANCHIRAVEEDU, MANALAYA ANAMANGAD,PERINTHALANNA 679 322
13	THE ORIENTAL INSURANCE CO.LTD PATTAMBI 679 303
14	HAMSA, AGED 42 YEARS, CHERODATH HOUSE, KUTHAMSSERY, ALUVA THOTTUMUGHAM, ERNAKULAM 683 101
15	SOMASUNDERAN, AGED 45 YEARS, S/O.GOPALAKRISHNAN, MOORKATHE HOUSE, THRIKKADERI,OTTAPALAM 679 101
16	BABU, AGED 48 YEARS, S/O.KOLAVAN, KONDANCHIRA HOUSE, MANALAYA PO, ANAMANGADE,PERINTHALMANNA 679 322.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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A.BADHARUDEEN, J.

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M.A.C.A.No.807 of 2014

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Dated this the 6^th day of July, 2021

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JUDGMENT

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The original 6^th respondent, ICICI Lombard GIC Ltd., the insurer of the vehicle, viz. lorry bearing No.KL41A 3610, one among the two vehicles involved in the accident, owned by the supplemental 7^th respondent is the appellant herein. The appellant/6^th respondent has filed this appeal impugning the correctness of the award passed by the M.A.C.T, Ottappalam in O.P(MV) No.526/2010 dated 09.12.2013. The appellant/6^th respondent is aggrieved in the matter of finding negligence against the 5^th respondent alone, ignoring the charge filed by the Police in this case marked as Ext.A6 against respondents 2 ad 5.

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Brief facts of the case :

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On 30.7.2009 at 6 p.m while the deceased was travelling in the

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autorickshaw bearing Reg.No.KL9H 3949 through the proper side of the road, on reaching the accident spot, a tipper lorry bearing Reg.No.KL41A

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M.A.C.A.No.807 of 2014

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3610 driven by the original 5^th respondent in a rash and negligent manner came from the opposite direction towing a bus bearing Reg.No.KL9K 3007 using clothes as rope to tow the bus, lost its control and hit the autorickshaw when the rope was broken. Thereby a passenger in the autorickshaw one K.P.Hamza sustained severe injuries. Immediately after the accident he was taken to Al-Shifa hospital, Perinthalmanna. But it was only to confirm his death. The accident occurred solely due to the negligent driving of the 2^nd respondent, the driver of the bus and the 5^th respondent, the driver of the lorry, is the contention raised by the original petitioners. The 1^st respondent is the owner and 3^rd respondent is the insurer of the bus. Supplemental 7^th respondent as well as responden ts 5 and 6 are the in sured, driver and insurer of the tipper lorry. Supplemental 7^th respondent is the owner of the tipper lorry impleaded as per the order in I.A.351/2013. During the pendency of the case, the 2^nd petitioner mother died and supplemental petitioners 3 to 10 were impleaded as per order in I.A.2966 of 2013.

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The learned counsel for the appellant/6^th respondent submitted that the Tribunal went wrong in finding that the 5^th respondent alone was negligent ignoring the charge and by ignoring the settled position of law as

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M.A.C.A.No.807 of 2014

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held in New India Assurance Co. Ltd. v. Pazhaniammal [2011 (3) KLT 648] wherein it was held that Police charge is primafacie sufficient evidence of negligence for the purpose of claim under Section 166 of the Motor Vehicles Act.

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Per contra, the learned counsel for the 3^rd respondent - insurer of

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the other vehicle bus No.KL9K 3007 submitted that as per para.7 of Pazhaniyammal 's case ( supra ) it is permissible for the Tribunal to insist for further evidence if the Tribunal finds doubt with regard to the Police charge. However, the learned counsel conceded that no such course of action was opted by the Tribunal.

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On perusal of the award in para.7, it could be noticed that the Tribunal was not inclined to accept Ext.A6 as such, where the drivers of both vehicles were alleged to be negligent. Instead, the Tribunal perused the scene mahazar forming part of Ext.A6 and it was found that the driver of the lorry alone was negligent ignoring the charge sheet filed by the Police.

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Coming to the crux of the dispute and going by the principle as

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settled in Pazhaniyammal 's case ( supra ), when there is Police charge fastening negligence on the part of both vehicles, unless and until better

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M.A.C.A.No.807 of 2014

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evidence to disbelieve the Police charge is adduced, the Tribunal could not fasten liability towards one among the vehicles ignoring the Police charge. In this matter, the Tribunal had not insisted production of evidence to interdict the Police charge. Instead, the scene mahazar supporting Ext.A6 Police charge was read in segregation to fasten negligence on the part of the

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5^th respondent alone. Such a course of action is against the spirit of ratio in Pazhaniyammal 's case ( supra ). In view of the matter, the appellant/original 6^th respondent's contention in this appeal is sustainable. Therefore, I am inclined to set aside the finding of the Tribunal that the 5^th respondent alone was negligent in the matter of accident and it is held that the 2^nd and 6^th respondents are negligent in causing the accident. Therefore, the respective insurance companies, viz. the 6^th respondent/appellant and the 3^rd respondent are liable to share the award passed by the Tribunal in the ratio 50:50.

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It is submitted by the learned counsel for the 6^th respondent

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insurance company that in view of the operation of the stay order granted in this case, only statutory deposit of Rs.25,000/- was made and the remaining amount is yet to be paid.

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Since the finding of the Tribunal fastening liability on the 6^th

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M.A.C.A.No.807 of 2014

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respondent alone was set aside, I direct the appellant/original 6^th respondent and the 3^rd respondent Oriental Insurance Company to share the award equally. It is specifically ordered that the appellant/6^th respondent shall deposit Rs.6,373/- (Rupees Six thousand three hundred and seventy three only) in the name of M.A.C.T, Ottappalam by way of the court fee payable in this matter and the remaining amount forms part of 50% inclusive of the interest gr anted by the Tribunal in the name of the petitioners, within two months from today. It is ordered further that the remaining 50% of the amount with interest shall be deposited by the 3^rd respondent in the name of the petitioners within two months from today. On deposit, the petitioners can realise the same forthwith.

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The appeal is allowed accordingly.

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Sd/-

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(A.BADHARUDEEN, JUDGE)

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rtr/

Icici Lombard General Insurance Co. Lltd. v. Aboobacker

Case brief

What is this about?

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Icici Lombard General Insurance Co. Lltd. v. Aboobacker

Case brief

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