Allowed

Lali v. Sunny Dominic

Kerala HC6 Dec 2022MACA/1654/2014

Case brief

AI extract

What is this about?

The High Court allowed the appeal against an award by the Motor Accidents Claims Tribunal that dismissed a compensation claim. The Court held the Tribunal incorrectly relied on witness statements at a hospital rather than the police final report, which indicated negligence by the other driver. The Court reversed the finding on liability but remanded the issue for the Tribunal to fix responsibility

What did the court decide?

Finding on issue No.1 set aside; appeal allowed in part; liability to be fixed by Tribunal afresh within one month; compensation maintenance upheld.

Lali Vs Sunny Dominic — Motor Accident Claims | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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TUESDAY, THE 6TH DAY OF DECEMBER 2022 / 15TH AGRAHAYANA, 1944

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MACA NO. 1654 OF 2014

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AGAINST THE AWARD DATED 21.02.2014 IN O.P(MV) NO.661/2011 OF MOTOR

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ACCIDENT CLAIMS TRIBUNAL, PALA

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APPELLANTS / PETITIONERS :-

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1LALI, W/O.THOMAS,
AGED 37 YEARS, THARAPPEL HOUSE, MATTATHIPARA P.O.,
KARIMKUNNAM - 685 586.

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2 LINSE THOMAS, AGED 21 YEARS,

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THARAPPEL HOUSE, MATTATHIPARA P.O.,
KARIMKUNNAM - 685 586.

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3 PRINCE THOMAS, AGED 18 YEARS,

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THARAPPEL HOUSE, MATTATHIPARA P.O.,
KARIMKUNNAM - 685 586.

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BY ADVS.
SRI.C.M.TOMY
SRI.MATHEW SKARIA

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RESPONDENTS / RES PONDENTS :-

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1SUNNY DOMINIC, MUNDOLIPUTHENPURAYIL HOUSE,
MATTATHIPARA P.O., KARIMKUNNAM - 685 586.

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2JOY, S/O.DEVASSIA, MANICHIRACKAL HOUSE, KADANADU
VILLAGE, PLASSANAL P.O. - 686 579.

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3 UNITED INDIA INSURANCE CO.LTD DAIVASAHAYAM BUILDING, K.K.ROAD, PONKUNNAM - 686 506.

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BY ADVS.
SRI.AGI JOSEPH
SRI.AGI JOSEPH
JOHN JOSEPH VETTIKAD
C.JOSEPH JOHNY(K/107/2007)
SAMSON MATHEW SAM(K/785/2022)

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 06.12.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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MACA NO. 1654 OF 2014

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JUDGMENT

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Dated this the 06^th day of December, 2022

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This appeal is filed against an award passed by Motor Accidents Claims Tribunal, Pala (for short ‘the Tribunal’) on 21.02.2014 in O.P.(MV) No.661/2011. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioners and respondents 1 to 3 in accordance with their status in the Original Petition.

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The appellants are the petitioners in the above Original Petition before the Tribunal. Compensation was sought for the death of one Mr.Thomas in a motor accident occurred at 2 p.m on 24.05.2011. He was pillion riding on a motorcycle bearing Registration No.KL-5/M-6410 from Mattathipara to Karimkunnam and when it reached at a place called Pulinchuvadu Bhagom, a Maruti Omni Van bearing Registration No.KL-13/A-9228 driven by it’s driver in a rash

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MACA NO. 1654 OF 2014

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and negligent manner hit the motorcycle on it’s back. In the impact, he was thrown on the road and sustained serious injuries. The rider of the motorcycle also fell down in the impact of the hit and sustained serious injuries. Mr.Thomas succumbed to the injuries sustained in the motor accident on the immediately succeeding day. Alleging that the motor accident was occurred due to the rash and negligent riding of the Maruti Omni Van by it’s driver and claiming a sum of Rs.9,11,000/- as compensation, the above Original Petition was filed before the Tribunal.

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All the respondents entered appearance on being served with summons from the Tribunal and filed written statement. In the written statement filed, the first respondent contended that the Original Petition is not maintainable, that the compensation claimed is excessive and that the accident was not occurred due to negligence of the second respondent.

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The Omni Van involved in the motor accident was admittedly

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insured with the third respondent and therefore the latter is contended as liable to indemnify the insured.

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The second respondent, in the written statement filed, has contended that the Original Petition is not maintainable, that the compensation claimed is excessive, that the motor accident was occurred solely due to negligence of the rider of the motorcycle, that the second respondent was driving the Omni Van in a careful manner. Admittedly, the Omni Van was insured with third respondent.

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The third respondent in it’s written statement had

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taken the very same contentions as was taken by the second respondent. However, the insurance coverage of the Omni Van bearing Registration No.KL-13/A-9228 at the relevant time of the motor accident under the certificate of insurance issued by them was admitted.

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The third respondent had stated in it’s written statement that the motor accident in question was occurred due

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MACA NO. 1654 OF 2014

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to the negligent riding by the rider of the motorcycle. The third respondent has relied on the statement given by a relative of the deceased to the Sub Inspector of Police, Karimkunnam to state so. According to them motorcycle in which the petitioner was travelling at the relevant time had only an Act only policy and therefore, has no coverage for the pillion rider. For the reasons, an Omni Van bearing Registration No.KL13/A-9228 was introduced into the motor accident, a false story was fabricated and the information to the police was given belatedly to set the law in motion.

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The third respondent has totally denied the involvement of the Maruti Omni Van in the motor accident. It is contended that the claim raised in the Original Petition being totally a false one is liable to be dismissed.

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Both parties have adduced evidence before the Tribunal based on their pleadings. On the side of the petitioners, PWs 1 to 4 were examined and Exts.A1 to A9

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were marked. On the side of the respondents Exts.B1 to B6 were marked. On a scrutiny of the evidence adduced by both parties the Tribunal arrived at a finding that the petitioners failed to prove the reasons for the accident and thereby the Original Petition seeking compensation was dismissed. Aggrieved by the above finding and dismissal of the Original Petition that the petitioners are now in appeal before this Court.

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It is contended by Sri.Mathew Skaria, the learned counsel for the petitioners that the Tribunal has arrived at the above finding without appreciating the evidence on record in its proper perspective. According to him, the final report was laid after concluding the investigation, chargesheeting the driver of the Maruti Omni Van bearing Registration No.KL13/A-9228 for rash and negligent riding. According to him, the rider and pillion rider of the motorcycle had sustained serious injuries in the motor accident and were lying

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unconscious at the place of incident. They were transported to the hospital by someone who had found them in the road. According to him, while they were brought to the hospital, both were unconscious also. The learned counsel has also pointed out that the Tribunal has relied on the alleged cause of the accident reported in the Accident Register-cum Wound Certificates prepared at the hospital with reference to the rider as well as the pillion rider of the motorcycle who had sustained injuries. The copies of the Accident Register-cum Wound Certificates form part of the evidence adduced by the third respondent as Exts.B1 and B2. According to the learned counsel for the petitioners, nowhere in Exts.B1 and B2 it was mentioned that the alleged cause was spoken at the hospital by the injured themselves. According to him, they were brought to the hospital by someoneelse and the alleged cause was spoken by them. The alleged cause as revealed from Exts.B1 and B2 is ‘bike accident’ and the involvement of the Maruti Omni Van was not reported.

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It is pertinent to note from the final report marked

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in evidence as Ext.A8, a single person alone was cited as the witness of the occurrence and he is none other than the rider of the motorcycle. The other witnesses in Ext.A8 are cited only to say their hearsay information about the alleged motor accident. Therefore, solely based on the version of the rider of the motorcycle, negligence was fixed on the driver of the Maruti Omni Van and a final report charge sheeting him was laid by the police who investigated the case.

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As stated hereinabove the charge witnesses other than CW10 has not spoken about the alleged incident. CW10 who was the rider of the motorcycle has given a version that he was riding the motorcycle at the relevant time and the Maruti Omni Van driven by it’s driver dashed the motorcycle and thereby the motor accident was occurred. Accordingly, the driver of the Maruti Omni Van was chargesheeted by the Police for offences punishable under Sections 279, 337,

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304(A) of Indian Penal Code, 1860 (for short ‘IPC’) and Section 132(a) (b) of Motor Vehicles Act, 1988 (for short ‘MV Act’).

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The learned counsel for the third respondent has

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pointedly argued that the FIS was lodged only on the day succeeding to the date of occurrence. According to him, whether the injured were conscious or not at the time of their admission at the hospital is not reported either in Exts.B1 or B2. According to him, the injured were unconscious, that would have been reported in Exts.B1 or B2. Since that was not revealed from Exts.B1 or B2, the presumption that can be drawn is that they were conscious at the time when they were brought to the hospital and the alleged cause was spoken by any of them.

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A glance at Exts.B1 and B2 would reveal that

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mention is not made regarding the person who has brought the injured to the hospital or that the injured were accompanied by

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whom. The version of CW10 to the Police was that both himself and the pillion rider have become unconscious after the occurrence and were lying at the spot of incident itself. According to him, they were brought to the hospital by some unknown person. If that be so, the alleged cause must have been spoken by the person who have taken the injured to the hospital.

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A glance at the written statement filed by the third respondent in the Original Petition on hand would disclose that a specific contention was taken by them against Ext.A8 that it is the outcome of collusion of the petitioners with the police who investigated the case. In New India Assurance Co.Ltd. v. Pazhaniammal [2011 (3) KLT 648] relied on by the learned counsel, it was held that a final report if found to be collusive, the Tribunal must have let the parties to adduce further evidence. In the case on hand, at the time of filing of the written statement itself a specific contention was taken by the

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MACA NO. 1654 OF 2014

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third respondent that Ext.A8 is a document prepared collusively on false facts furnished by the injured. Apart from marking Exts.B1 and B2 in evidence, the third respondent has not let in any oral evidence to establish the collusion alleged. None attached to the third respondent mounted the witness box to depose on the contentions taken in the written statement. Therefore, their contra say about the motor accident in question was not proved. Marking of Ext.A8 was also without any opposition being raised by third respondent.

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This Court has held in Pazhaniammal supra that a charge sheet if laid by the Police following a motor accident, that would form prima facie evidence to establish negligence on the part of the driver of the vehicle allegedly involved in the accident. It has also been held in the case that if a party disputes a document as a collusive one, it is for him to adduce oral evidence to establish the same. In the case on hand, oral evidence has not been adduced by the third respondent. The

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third respondent did not opt to examine any of the charge witnesses. CW10 was examined by the petitioner as PW2 and he was cross examined by the third respondent but nothing was brought out to discredit him on his version about the motor accident and the allegations raised in Ext.A8.

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Moreover, both the motorcycle and the Maruti Omni Van were examined by the Vehicle Inspector and report of his examination were marked in evidence as Exts.A6 and A7. Damages to both vehicles are found reported in Ext.A6 and A7.

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From the discussion of the alleged cause in Ext.A8, it is found that the motorcycle wherein the deceased in the case on hand was travelling as pillion rider was proceeding in front and the Maruti Omni Van was proceeding from behind. It was also found alleged in the said document that the Maruti Omni Van in the course of it’s movement dashed on the motorcycle forcibly and thereby the motorcycle skidded and the travellers

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MACA NO. 1654 OF 2014

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therein sustained injuries. If the alleged accident was occurred in the manner as narrated in Ext.A8, there is every reason for damages to occur on the left side of the Maruti Omni Van and front and right side of the motorcycle. In Exts.A6 and A7, vehicles were reported as damaged accordingly. This factum endorses the manner in which the alleged accident was occurred.

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The Tribunal failed to apply it’s mind to the above aspects while arriving at a finding that the cause of the accident was not established by the petitioners. The Tribunal has only relied on the version of the first informant about the alleged cause of accident as reported in Exts.B1 and B2. The dictum in Pazhaniammal supra is found to have been overlooked by the Tribunal. The Tribunal failed to see that the third respondent who had disputed the motor accident in vehemence failed to examine any witness and to adduce oral evidence to establish on the contrary to what have been stated

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MACA NO. 1654 OF 2014

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by the petitioners. In the above circumstances, the Tribunal is totally unjustified in arriving at a finding that the petitioners failed to establish the cause of the motor accident. The Tribunal undoubtedly has gone wrong while dismissing the Original Petition.

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In view of the discussion hereinabove made, this Court finds it appropriate to reverse the finding of the Tribunal as above. The finding on issue No.1 is liable to be set aside. It is noticed that challenge is not raised on the quantum of compensation stands arrived at by the Tribunal in the impugned award.

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In the above circumstance, the Appeal on hand is allowed in part. The finding on issue No.1 is set aside. The compensation stands awarded by the Tribunal is maintained. The Tribunal shall arrive at a finding on issue No.1 afresh in the light of the discussion and the dictum in Pazhaniammal supra and shall fix the liability on the respondents accordingly.

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MACA NO. 1654 OF 2014

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At any rate, the findings shall be arrived at and the Original

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Petition disposed of within one month from the date on which

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a certified copy of the judgment is received.

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MACA stands allowed accordingly.

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Sd/-

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MARY JOSEPH JUDGE

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SMA

Lali v. Sunny Dominic

Case brief

What is this about?

What did the court decide?

Lali v. Sunny Dominic

Case brief

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