Dismissed

Radhamony v. Suseela Devi & Others

Kerala HC22 Nov 2023MACA/322/2011

Case brief

AI extract

What is this about?

Madam Justice Mary Joseph dismissed an appeal against an Motor Accidents Claims Tribunal award. The appellant could not prove vehicle involvement or driver negligence. The Tribunal found witness evidence non-credible since it was adduced years after the petition filing. The High Court agreed the evidence was insufficient to sustain the claim under Section 166.

What the court decided

AI extract

Radhamony Vs Suseela Devi & Others — Motor Accident Claims | Kerala HC (2023)

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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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WEDNESDAY, THE 22ND DAY OF NOVEMBER 2023 / 1ST AGRAHAYANA,

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1945

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MACA NO. 322 OF 2011

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AGAINST THE AWARD IN OPMV 308/2004 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL, NEYYATTINKARA DATED 18/09/2010

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APPELLANT/APPLICANT:

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RADHAMONY

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ANI BHAVAN, KARINADA, NEYYATTINKARA.P.O.,
THIRUVANTHAPURAM.

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BY ADVS.SRI. J.ROBINSON
 SRI.R.T.PRADEEP
 SRI.V.VIJULAL

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RESPONDENTS/RESPONDENTS:

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1 SUSEELA DEVI, D/O.EASWARA PILLAI, VASANTHA VILASAM, THIRUVANANTHAPURAM – 69 501.

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2 REJI TITUS, LEELA BHAVAN, CHERIYATHURA VALLAKKADAVU.P.O., THIRUVANANTHAPURAM – 695 003.

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3 THE DIVISIONAL MANAGER, NEW INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE II, K.N.MATHEW BUILDING, G.A COVIL ROAD, THIRUVANANTHAPURAM 695 001.

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BY ADV LATHA SUSAN CHERIAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 15.12.2022, THE COURT ON 22.11.2023 DELIVERED THE
FOLLOWING:

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M.A.C.A No.322 of 2011

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MARY JOSEPH, J.

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- - - - M.A.C.A. No. 322 of 2011

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- - - - Dated this the 22^nd day of November, 2023

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JUDGMENT

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An award passed by Motor Accidents Claims Tribunal, Neyyattinkara (for short ‘the Tribunal’) on 18.09.2010 whereby the Original Petition, filed by one Mrs.Radhamony under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the MV Act’) claiming ₹4,00,000/- as compensation for the death of her husband Mr.Venugopalan Nair in a motor accident, was dismissed for want of evidence to substantiate involvement of a vehicle and negligence of its driver in driving it.

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As per the pleadings of the petitioner in the Original Petition, Mr.Venugopalan Nair was walking along Kollemcode-Kaliyikkavila Public road, an Ambassador Car hit

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M.A.C.A No.322 of 2011

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him down due to the rash and negligent driving by its driver.

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Due to the serious injuries sustained, Mr.Venugopalan Nair died on the spot. Crime No.263/1999 was registered by the Kollemcode police. Wife of the deceased preferred the Original Petition seeking ₹4,00,000/- as compensation from respondents 1 and 2 and additional respondent No.3 styled as the owner, the driver and the insurer of the Ambassador Car allegedly involved in the motor accident.

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1^st and 2^nd respondents remained ex parte . Additional 3^rd respondent filed written statement and contended that the Original Petition is not maintainable against it. It is contended furthermore that the averments and allegations in the Original Petition are false and the compensation claimed is excessive and devoid of any basis.

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Petitioner failed to produce any criminal case records to establish the motor accident. The investigation pursued in Crime No.263/1999 culminated in

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M.A.C.A No.322 of 2011

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non-identification of the vehicle and the driver driving it at the relevant time. According to him, the case on hand is a false one foisted in collusion with the 1^st respondent. The involvement of the Ambassador Car bearing Registration No.KET-5407 was denied but insurance coverage of it with them was admitted.

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The Tribunal framed the following issues for

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consideration:

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“1. Whether the accident was the result of negligence on the part of the 2^nd respondent; and if so, did Venugopalan Nair died due to the injuries sustained in the accident?

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Is the applicant entitled to any compensation; and if so, to what quantum?

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In the event of any award being passed, on whom does the liability to pay?”

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6. Oral evidence was adduced by the petitioner and

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her witness respectively as PW1 and PW2. Exts.A1 to A3

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were also marked in evidence. Ext.A1 series are nothing but copies of the First Information Report (FIR) and the final

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M.A.C.A No.322 of 2011

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report in Tamil and its Malayalam translation. As per Ext.A1(a), the Malayalam translation of the FIR, the crime was registered on 20.08.1999, the day immediately succeeding the motor accident in question based on a report forwarded by the Municipal Chairman of Kollemcode stating that a dead body of an unknown person was found on the road with his head in a crushed state.

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As per Ext.A1(a) the Malayalam translation of FIR, investigation did not reveal the identity of the vehicle as well as its driver and therefore, the case was referred as a false one. As per Ext.A2, postmortem examination was conducted on the body of the deceased on 20.08.1999. The skull was found in the examination as fractured with brain expelled out. The death of the person was reported as occurred due to shock and hemorrhage from the multiple injuries sustained by him. Ext.A3 is nothing but a letter written by the applicant to the Chief Minister of Government

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M.A.C.A No.322 of 2011

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of Tamil Nadu requesting conduct of proper investigation into

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the matter.

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The petitioner and a witness were examined respectively as PW1 and PW2. PW1 did not have a case that the occurrence was witnessed by her. PW2 claimed to have witnessed the occurrence at 10.30 night with the involvement of a Car bearing Registration No.KET-5407. According to him, he left the place immediately. According to him, the Car halted there for sometime and thereafter was driven away on finding people proceeding to the place. The Tribunal did not find the evidence of PW2 believable for the reason that he did not act as a prudent man.

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In the opinion of the Tribunal, if PW2 had actually witnessed the occurrence and if people gathered there as stated by him, the driver could have been restrained by them from proceeding further. The Tribunal opined that PW2 was cited as a witness only on 21.12.2009 in an Original

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M.A.C.A No.322 of 2011

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Petition filed in the year 2004, itself is a doubtful circumstance. Issue No.1 was found against the petitioner and issues No.2 and 3 were not answered. Thus the Original Petition was dismissed.

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This Court also notices from the oral as well as documentary evidence adduced by the petitioner that those do not help the petitioner to establish that Mr.Venugopalan Nair died consequent to the injuries sustained by him in a motor accident occurred with the involvement of an Ambassador Car bearing Registration No.KET-5407 and rash and negligent driving by its driver stood arrayed in the Original Petition as the 2^nd respondent. The application being filed under Section 166 of the MV Act, for it to be maintainable, negligence of the driver of the offending vehicle is inevitable to be established. As noticed correctly by the Tribunal, the evidence adduced by the petitioner and relied on by her is not sufficient for arriving at a finding on

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M.A.C.A No.322 of 2011

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involvement of the vehicle and rash and negligent driving by

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the person who had driven it at the relevant time.

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The view taken by the Tribunal is correct in all respects and there is absolutely no reason to interfere with

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it. Appeal on hand is liable to fail for the reasons.

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In the result, the appeal is dismissed.

Sd/-

MARY JOSEPH

JUDGE

NAB

Radhamony v. Suseela Devi & Others

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Radhamony v. Suseela Devi & Others

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