Kerala High Court
Aneesh Babu vs Musthafa P on 3 October, 2018
Author: K.Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY,THE 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940
MACA.No. 48 of 2011
AGAINST THE AWARD IN OPMV 126/2010 of M.A.C.T. TIRUR DATED
25-11-2010
APPELLANT/S:
ANEESH BABU
THILAYIL HOUSE, P.O.KUNDOOR,, NANNAMBRA AMSOM,
THEYYALINGAL,, MALAPPURAM DISTRICT.
BY ADV. SRI.C.M.MOHAMMED IQUABAL
RESPONDENT/S:
1 MUSTHAFA P, S/o. ALAVI (LATE)
PAKKADA HOUSE, PAKKADAPURAYA,, KUTOOR, KOORIYAD
P.O., MALAPPURAM DIST.
2 ROYAL SUNDARAN ALLIANCE INSURANCE
CO.LTD., SUNDARAM TOWERS,, 48 WHITES ROAD,
ROYAPETTAH, CHENNAI.
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 03.10.2018, ALONG WITH MACA.52/2011, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
MACA NOS.48/2011 & 52/2011
::2 ::
MACA NOS.48/2011 & 52/2011
JUDGMENT
The appellants are brother and sister who were riding in a bike when a car hit them causing serious injuries to both of them.The claim raised by both the persons were disposed of by a common award of the Tribunal. The Tribunal found that there is a negligence on the part of the rider of the bike-the brother and imposed 50% liability for such negligence caused. The learned Counsel appearing for the appellant submits that the same was without any evidence.
2. A reading of the award indicates that evidently, the FIR produced and charge sheet issued was against the driver of the car. The learned Counsel appearing for the Insurance Company submits that they had raised a specific contention in their written statement that the rider of the motor bike did not have any licence. However, they did not seek cross-examination of the driver of the vehicle and they also agreed to marking of the documents without any objection. The Tribunal found that since the scene Mahazar was not produced an adverse inference can be taken. In fact when the FIR was produced, MACA NOS.48/2011 & 52/2011 ::3 ::
if there was anything adverse in the scene mahazar it was obligatory on the part of the Insurance Company to prouduce the same. In fact a Division Bench in Fazal Mahmood M T and others v. Rasheed C.P [(2015) 4 KHC 440] depricated the practise of the Tribunals relying on the scene mahazar to fasten negligence on the person who is not implicated as an accused in the FIR or against whom a final report has not been filed. In such circumstance, this Court cannot countenance the negligence found on the driver of the bike. The entire compensation would have to be borne by the insurer of the car.
3. The appellants also have a contention against the compensation awarded. Considering the injuries caused as also the compensation awarded this Court is of the opinion tha the appellants have been adequately compensated with reference to the injuries.
On the above findings, the appeals are partly allowed. No order as to costs.
Sd/-
K.VINOD CHANDRAN
jma JUDGE