Kerala High Court
Lekshmy And Others vs Krishna Pandi And Others on 14 July, 2021
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
MACA NO. 530 OF 2010
AGAINST THE JUDGMENT IN OP(MV) 952/2003 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL ,NEYYATTINKARA, THIRUVANANTHAPURAM
APPELLANTS/APPLICANTS:
1 LEKSHMY, W/O.SIVASUBRAMANIAN @ MOHAN,
47/W-12 C, THALIYALPURAM STREET, VADASSERY,,
NAGERCOIL, NOW RESIDING AT MURIYANKARA, ROADARIKATHU
VEEDU, PARASSALA.P.O.,, THIRUVANANTHAPURAM DISTRICT.
2 ARUL SIVABALAN 2 YEARS (MINOR)
S/O. SIVASUBRAMANIAN @ MOHAN, REPRESENTED BY HIS
MOTHER LAKSHMY OF DO-DO-
3 CHEMBAKAM AGED 53 YEARS,
W/O. BALAKRISHNAN OF DO-DO-
4 BALAKRISHNAN AGED 60 YEARS
S/O. SIVASUBRAMANIAN PILLAI, DO-DO-
BY ADV SRI.R.GOPAN
RESPONDENT/RESPONDENTS:
1 KRISHNA PANDI, S/O.THIRUMAL,
15-94, POOJAPURAVILA, AGASTHEESWARAM.P.O.,,
KANYAKUMARI DISTRICT.
2 CHUDALAYANDI S/O. UMAYORU VAGAN PILLAI
RAILWAY ROAD, THEVALAI, THEVALAI.P.O., KANYAKUMARI,
DISTRICT.
MACA NO. 530 OF 2010
2
3 THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD., THIRUVANANTHAPURAM.
BY ADV SRI.AGI JOSEPH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 14.07.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
MACA NO. 530 OF 2010
3
JUDGMENT
The appellants were the petitioners in O.P (MV) No.952/2003 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. The respondents in the appeal were the respondents before the Tribunal.
2. The brief facts relevant for the determination of the appeal, are: the appellants had filed the claim petition under Section 166 of the Motor Vehicles Act,1988 (for brevity referred to as "Act") claiming compensation on account of the death of Sivasubramanian@Mohan (deceased) - the husband of the 1st appellant, the father of the 2nd appellant and the son of the appellants 3 and 4 . It was their case that on 3.4.2003 while the deceased was walking along the road in front of S.P.Office, Nagercoil, he was knocked down by an autoricishaw bearing Reg.No.TN- 74-D-9865 driven by the 2nd respondent in a rash and negligent manner. The deceased sustained serious injuries MACA NO. 530 OF 2010 4 and was taken to Nagarajan Hospital, Nagercoil and then shifted to District Head Quarters Hospital, Nagercoil. He succumbed to the injuries on 7.4.2003. The deceased was a flower vendor and earning a monthly income of Rs.5,000/-. The deceased was the sole bread-winner of the family and the appellants were dependents on him. The autorickshaw was owned by the 1st respondent and insured with the 3rd respondent. Hence, the appellants claimed an amount of Rs.9,34,000/- from the respondents, which was limited to Rs.7,50,000/-.
3. The respondents 1 and 2 did not contest the proceedings and were set ex parte.
4. The 3rd respondent - the Insurance Company - filed a written statement, inter alia, contending that the appellants were not residing in the address shown in the cause title. The autorickshaw bearing Reg. No.TN-74-D
-9865 was not involved in the accident. The entire allegations in the claim petition were concocted in an MACA NO. 530 OF 2010 5 unscrupulous attempt to grab money from the insurance company. On enquiry by the 3rd respondent, it was learnt that another autorickshaw, which did not have a valid insurance policy, was involved in the accident. Therefore, the appellants planted the present vehicle to unlawfully enrich themselves. Hence the claim petition is to be dismissed.
5. The 1st appellant was examined as PW1 and Exts. A1 to A5 were marked through her. The 3 rd respondent produced and marked Exts.B1 and B2 in evidence.
6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award dismissed the claim petition holding that the appellants have not proved that the accident was caused by the autorickshaw bearing Reg. No. TN-74D 9865 as alleged in the claim petition. It was also found that the appellants have deliberately not produced the final report prepared by the Police.
7. Aggrieved by the impugned award, the MACA NO. 530 OF 2010 6 petitioners/appellants are in appeal.
8. Heard the learned counsel appearing for the appellants/petitioners and the learned counsel appearing for the 3rd respondent - insurance company.
9. The sole question that arises for consideration in the appeal is whether the impugned award passed by the Tribunal is sustainable in law or not?
10. The specific case of the appellants in the claim petition was that on 3.4.2003 while the deceased was walking on the road, an autorickshaw bearing Reg. No.TN- 74D-9865 driven by the 2nd respondent hit the deceased and he fell unconscious. He was taken to the Nagarajan Hospital, Nagercoil and, thereafter, to the District Headquarters Hospital, Nagercoil, where he lost his life on 7.4.2003. It was averred that the autorickshaw belonged to the 1st respondent and was insured with the 3 rd respondent.
11. The appellants produced Ext.A1 F.I.R which was MACA NO. 530 OF 2010 7 registered on 7.4.2003 and submitted before the Court of the Judicial Magistrate-III, Nagercoil. The information was given to the Police by one Muthukaruppan, who claimed to be the younger brother of the deceased. The informant told the Police that while he and the deceased were walking along the road, an autorickshaw came from the rear side and knocked down the deceased, who fell unconscious and was taken to the Nagarajan Hospital, Nagercoil. However, , the autorickshaw driver drove away the vehicle. Therefore, the registration number of the vehicle could not be noted. According to him, the deceased succumbed to the injuries on 7.4.2003 at 7.15 p.m. He also stated that after the accident on 3.4.2003, the father and relatives of the deceased went to the Nagarajan Hospital on the following day and as advised the deceased was shifted to the Medical College Hospital, Kottar. Then, the deceased passed away on 7.4.2003 and the F.I.R was lodged.
MACA NO. 530 OF 2010 8
12. The 1st appellant - the wife of the deceased - who was examined as PW1, gave a totally contradictory version in her oral testimony. She deposed that it was while she and the deceased were walking along the road an autorickshaw knocked down the deceased and he sustained injuries and he lost his life on 7.4.2003. She did not mention anything about Muthukaruppan, the first informant. Similarly, in Ext.A3 post-morterm certificate the cause of death was mentioned as head injury and there is no mention about a road traffic incident as stated in Ext.A1 F.I.R.
13. The Tribunal on a threadbare analysis of the pleadings and materials on record, particularly after evaluating the oral testimony of PW1 - who claimed to be an eye-witness to the incident, found that there were contradictions and inconsistencies in the testimony of PW1 when read with the materials on record.
14. The most glaring aspect in the whole case is that MACA NO. 530 OF 2010 9 despite the Tribunal affording the appellants an opportunity to produce the final report filed by the Police, the same was withheld from the Tribunal.
15. Even at the time of hearing of the appeal, this Court had orally directed the appellants to produce the final report, so as to ascertain the actual cause of the accident. It was submitted by the learned counsel for the appellants that as the appellants are illiterate persons, it would be difficult for them to produce the said document.
16. It is to be noted that PW1 gave evidence on 31.1.2009 i.e, nearly after six years after the accident. She had all the time in the world to have obtained the final report and produced the same before the Tribunal, so that the real cause of death could have been ascertained. For reasons best known to the appellants, the said cardinal document was withheld from the Tribunal, that is why the Tribunal has rightly held ' it was grouping in the dark' to ascertain the actual cause of the accident. MACA NO. 530 OF 2010 10
17. On a total re-appreciation of the pleadings and materials on record, particularly the fact that the final report/charge sheet, the best piece of evidence, has been withheld and there are contradictions and inconsistencies in the materials on record, I do not find any error or illegality in the finding of the Tribunal, that the accident was not caused on account of the involvement of autorickshaw bearing Reg. No.TN-74D-9865. In the result, I confirm the findings of the Tribunal and dismiss the appeal. The parties shall bear their respective costs.
ma/14.7.2021 Sd/- C.S.DIAS, JUDGE