Kerala High Court dismissed an insurer's appeal claiming damages were reduced due to victim's contributory negligence. Court held the accident was solely the driver's fault and upheld the award of full compensation to claimants.
Appeal and cross objection dismissed. Parties to bear their respective costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 12TH DAY OF JANUARY 2022 / 22ND POUSHA, 1943
MACA NO. 163 OF 2009
AGAINST THE AWARD DATED 30.06.2008 IN OPMV 469/2000 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA
APPELLANT/3RD RESPONDENT:
THE NEW INDIA ASSURANCE CO.LTD. REGIONAL TOWERS KANDAMKULATHY TOWERS,, M.G.ROAD, ERNAKULAM, REP. BY ITS MANAGER. BY ADV SRI.VPK.PANICKER
RESPONDENTS/RESPONDENTS 1 & 2 & PETITIONER:
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12.01.2022, ALONG WITH CO NO.84 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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M.A.C.A.No163/2009 & C.O. NO.84/2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 12TH DAY OF JANUARY 2022 / 22ND POUSHA, 1943 CO NO. 84 OF 2009
AGAINST THE AWARD DATED 30.06.2008 IN O.P(M.V) NO.469/2000 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA. CROSS OBJECTOR/5TH RESPONDENT/3RD PETITIONER IN OP (M.V)
ALAN-V-GEORGE, VETTUMANNIL PEACE COTTAGE PAZHAVANAGADI.P.O, & VILLAGE,RANNY TALUK,, PATHANAMTHITTA DISTRICT. BY ADV SRI.T.K.KOSHY
RESPONDENT/APPELLANT/3RD RESPONDENT IN OP (M.V):
THE NEW INDIA ASSURANCE CO.LTD. REGIONAL TOWERS,KANDAMKULATHY TOWERS,M.G.ROAD,, ERNAKULAM,REPRESENTED BY ITS MANAGER.
THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 12.01.2022 ALONG WITH MACA NO.163/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.No163/2009 & C.O. NO.84/2009
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Dated this the 12th day of January, 2022
J U D G M E N T
The appellant was the third respondent/insurer in O.P (MV) No.469/2000 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta. The respondents 1 and 2 in the appeal were the respondents 1 and 2 before the Tribunal and the respondents 3 to 5 in the appeal were the petitioners before the Tribunal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal.
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M.A.C.A.No163/2009 & C.O. NO.84/2009
KL-3/C 4647 along the Ranni – Kumbazha public road, an Ambassador car bearing registration No. KL - 4 9763 (offending car), driven by the first respondent in a rash and negligent manner, came from the opposite direction and hit the Maruti car. The deceased sustained fatal injuries and lost his life instantaneously. The offending car was owned by the second respondent and insured with the third respondent. The deceased was aged 58 years at the time of accident/death and he was a Engineer by profession. The deceased was earning a monthly income of Rs.50,000/-. The petitioners were the dependents of the deceased. Hence, the petitioners claimed a compensation of Rs.20,00,000/- from the respondents.
M.A.C.A.No163/2009 & C.O. NO.84/2009
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damage caused to the car.
the claim petitions.
M.A.C.A.No163/2009 & C.O. NO.84/2009
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The respondents did not let in any evidence.
M.A.C.A.No163/2009 & C.O. NO.84/2009
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Question No.(i)
12.The specific case of the petitioners in the claim petition is that while the deceased was travelling in the Maruti car, due to the rash and negligent driving of the offending car by the first respondent, the accident was caused. In order to substantiate their
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M.A.C.A.No163/2009 & C.O. NO.84/2009
pleading, the petitioners have produced Exhibit A1 FIR, Exhibit A2 and A3 scene mahazars and Exhibit A6 charge sheet filed by the Pathanamthitta Police in Crime No.938/99. In Exhibit A6, the police have found that the accident was caused due to the negligence of the first respondent. The respondents have not let in any evidence to the contrary to discredit Exhibit A6 charge sheet and the other materials on record.
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M.A.C.A.No163/2009 & C.O. NO.84/2009
evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act,1988. Charge sheet can be accepted as evidence of negligence against the accused driver. If any party does not accept the charge sheet, then the burden is on such party to adduce oral evidence and discredit the charge sheet. Only then, the charge sheet will fall into pale of insignificance.
M.A.C.A.No163/2009 & C.O. NO.84/2009
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Others [(2013) 9 SCC 166] held that no inference can be drawn on the basis of a scene mahazar to arrive at a conclusion of contributory negligence.
M.A.C.A.No163/2009 & C.O. NO.84/2009
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liable to pay the entire compensation amount as ordered by the Tribunal. In view of the aforesaid finding, I do not find any reason to interfere with the impugned award awarding an amount of Rs.10,30,000/- to the petitioners. In view of my finding on Question No. (i), Question No.(ii) has become irrelevant and inconsequential, especially because the cross objection is filed only with regard to the finding of contributory negligence attributed against the driver of the Maruti car and nothing more and nothing less.
In the result, the appeal and the cross objection are dismissed. In the peculiar facts and circumstances of the cases, the parties shall bear their respective costs.
SD/-
C.S.DIAS,JUDGE
rmm12/01/2022
2 issues framed by the court
Whether the direction to pay the entire compensation amount is sustainable given the finding of 40% contributory negligence on the other driver?
Whether 40% composite negligence on the driver of the Maruti car affected the compensation payable by the insurer?
Colour shows how this judgement treated each authority
New India Assurance Co.Ltd. v. PazhaniammalApplied¶60
New India Assurance Co.Ltd. v. Pazhaniammal [2011 (3) KLT 648]
Kolavan and Others V. SalimDistinguished¶64
Kolavan and Others V. Salim [2018 (1) KLT 489]
Jiju Kuruvila & others v. Kunjujamma Mohan & OthersApplied¶66
Jiju Kuruvila & others v. Kunjujamma Mohan & Others [(2013) 9 SCC 166] · Who else cites this
1 provisions across 1 enactments
THE NEW INDIA ASSURANCE CO.LTD.
CHANDY JOSEPH
ABDUL ASSIM VILAKOM PURAYIDOM
SARAMMA GEORGE
C.S. DIAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
