Kerala High Court
The New India Assurance Company Ltd vs Unnikrishna Pillai on 10 July, 2012
Bench: Pius C.Kuriakose, A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
TUESDAY, THE 10TH DAY OF JULY 2012/19TH ASHADHA 1934
MACA.No. 466 of 2011 ( )
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OPMV.884/2002 of M.A.C.T.,KOLLAM
APPELLANT(S):
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THE NEW INDIA ASSURANCE COMPANY LTD.,
BRANCH OFFICE-II, SHINE COMPLEX, HOSPITAL ROAD
KOLLAM, REPRESENTED BY ITS MANAGER, REGIONAL
OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD
ERNAKULAM.
BY ADV. SRI.LAL GEORGE
RESPONDENT(S):
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1. UNNIKRISHNA PILLAI, S/O. KUTTAN PILLAI,
KALAKKATTU VEEDU, PERUMPUZHA P.O., KUNDARA
KOLLAM-691 504.
2. ANANDAVALLY, D/O. PANKAJAKSHY,
MANGALATHU THEKKATHIL, NEAR AVANEESWARAM
RAILWAY STATION, KUNICODE P.O., VILAKKUDY
PUNALUR, PIN-691 508.
3. SAJEEV, S/O. MOHANAN,
MANGALATHU THEKKATHIL, NEAR AVANEESWARAM
RAILWAY STATION, KUNICODE P.O., VILAKKUDY
PUNALUR, PIN-691 508.
4. MUHAMMAD MASADIC,
KUNNUMPURATHU HOUSE, NEAR C.S.I. CHURCH
KOTTARAKKARA P.O., PIN-691 506.
5. GOPAN R., S/O. RAGHAVAN PILLAI,
THARUMEL VILAYIL VEEDU, PERUMPUZHA P.O., KUNDARA
KOLLAM-691 504.
R1 BY ADV. SMT.S.LEELA
SRI.B.VINOD
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
10-07-2012 ALONG WITH MACA NO.1699/2011, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
BKA
PIUS C. KURIAKOSE
&
A.V. RAMAKRISHNA PILLAI, JJ.
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MACA Nos: 466 OF 2011 & 1699 OF 2011
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Dated this the 10th day of July, 2012
J U D G M E N T
Ramakrishna Pillai, J.
The Insurance Company and the claimant are in appeal.
2. The accident was on 04.11.2001 at about 11 am. The accident arose out of a collision between a motorcycle on which the appellant was pillion riding and the alleged offending jeep bearing Registration No:KL-7R/5150. The appellant/Insurance Company was the insurer of the said jeep. They disputed their liability to pay compensation contending that the vehicle involved in the accident was not the jeep bearing Registration No:KL-7R/5150, but a jeep bearing Registration No:KL-2C/4575.
3. The FIR was registered on 18.12.2001 on the basis of the information furnished by the claimant and his MACA Nos: 466/2011 & 1699/2011 ..2..
elder brother. As per the signed statement recorded, the offending vehicle is the jeep bearing Registration No:KL- 2C/4575. Statements from the rider of the motorcycle as well as the two occurrence witnesses were recorded by the police on 19.12.2001. According to the rider of the motorcycle as well as the two occurrence witnesses, the offending vehicle was the jeep bearing Registration No:KL- 2C/4575. That is the reason why the appellant/Insurance Company has disputed the involvement of vehicle bearing Registration No:KL-7R/5150 insured with them in the accident.
4. However, subsequently, the Investigation Officer filed a draft charge sheet showing that the jeep bearing Registration No:KL-7R/5150 is the offending vehicle. The learned Tribunal, relying on the police charge, fastened the liability with the appellant/Insurance Company attributing negligence against the driver of the jeep bearing Registration No:KL-7R/5150. According to the appellant/ Insurance Company, the vehicle was substituted correcting MACA Nos: 466/2011 & 1699/2011 ..3..
the unsigned statements, which were previously recorded.
5. The appellant/claimant, would allege that one among ten jeeps proceeding for a marriage ceremony hit the scooter on which the appellant was pillion riding. Though the number of the vehicle quoted in the FIR was wrong, the police after detailed investigation found that the vehicle involved in the accident was the jeep bearing Registration No:KL-7R/5150. According to the appellant/ claimant, all the drivers of the jeeps were called and the appellant identified the 1st respondent, who was the driver of the jeep bearing Registration No:KL-7R/5150. So, the appellant/claimant would justify the finding of the Tribunal attributing negligence against the driver of the jeep bearing Registration No:KL-7R/5150.
6. The grievance voiced against the award by the appellant/claimant was that he was not awarded adequate compensation for the injuries sustained by him.
7. Heard both sides.
8. We notice that the learned Tribunal relied on MACA Nos: 466/2011 & 1699/2011 ..4..
Ext.A2, which is the copy of the police charge sheet. In Ext.A1, FIR dated 18.12.2001, the register number of the offending vehicle is shown as KL-2C/4575. However, in Ext.A2 charge sheet, the offending vehicle is the jeep bearing Registration No:KL-7R/5150, which was insured with the appellant/Insurance Company. The learned Tribunal fastened the liability on the driver of the jeep insured with the appellant/Insurance Company relying on Ext.A2 charge sheet. Ext.A2 is under serious challenge. The definite case of the appellant/Insurance Company is that the vehicle was substituted correcting the unsigned statements of the persons who were questioned by the police.
9. The Investigating Officer was examined on the side of the appellant/Insurance Company. Copy of the deposition of the Investigating Officer was made available to us for perusal during the course of the argument. When the Investigating Officer was examined, he gave evasive answers to the questions put to him. It has to be remembered that none of the parties have a case that this MACA Nos: 466/2011 & 1699/2011 ..5..
was a case of hit and run. The accident occurred at about 11 am on 04.11.2001. According to the claimant, he was hit down by one among the ten jeeps proceeding one after another for a marriage ceremony. The FIR was registered on 18.12.2001. As rightly pointed out by the learned counsel for the appellant/Insurance Company, it is highly improbable to believe the case of the police that even after the expiry of 1= months, the claimant as well as the two occurrence witnesses did not correctly mention the register number of the offending vehicle, especially when the accident had occurred during the mid day. This probabilises the case of the appellant/Insurance Company that the insured vehicle has been falsely implicated by the police charge. However, this is not an irrebuttable presumption. The appellant/claimant could have proved the involvement of the vehicle insured with the Insurance Company in the accident by adducing acceptable legal evidence. That was not done. The evidence before the Tribunal to prove the accident consists of only the oral MACA Nos: 466/2011 & 1699/2011 ..6..
testimony of PW1 as well as the police charge. As the appellant/Insurance Company has seriously challenged the police charge and could establish the probability of falsely implicating the driver of the jeep bearing Registration No:KL-7R/5150, the learned Tribunal was not at all justified in arriving at a conclusion regarding the involvement of jeep bearing Registration No:KL-7R/5150 on the basis of Ext.A2 charge sheet alone.
10. We are of the view that additional evidence has to be assimilated regarding the involvement of vehicle bearing Registration No:KL-7R/5150 in the accident and for that the case has to be remitted back to the Tribunal for fresh disposal to arrive at a correct finding regarding the involvement of the vehicle involved in the accident as well as negligence. The learned Tribunal may do so on the basis of the available evidence on record as well as further evidence that may be adduced by both sides.
11. As we have decided to remit the case back to the Tribunal, we leave open the question of quantum of MACA Nos: 466/2011 & 1699/2011 ..7..
compensation also to be decided afresh by the Tribunal.
In the result, the appeals are allowed and the impugned award is set aside. OP(MV) No:884/2002 on the file of MACT, Attingal is remanded to the Tribunal for fresh disposal after affording both sides to adduce further evidence. The entire exercise shall be completed by the Tribunal within three months from the date of appearance of the parties before the Tribunal. The parties shall enter appearance before the Tribunal on 30.07.2012.
Sd/-
PIUS C. KURIAKOSE, JUDGE Sd/-
A.V. RAMAKRISHNA PILLAI, JUDGE bka/-
//True copy// PA to Judge