Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 1ST DAY OF MARCH 2023 / 10TH PHALGUNA, 1944 MACA NO. 103 OF 2013 AGAINST THE ORDER DATED 26.04.2012 IN OP(MV)NO.841/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,ATTINGAL APPELLANT/PETITIONER: SAJIMON, S/O VIJAYAN, THEKKEPALLIYIL MARARIKULAM JUNCTION, CHERTHALA, ALAPUZHA. BY ADV SRI.M.R.SARIN RESPONDENTS & RESPONDENTS 1 TO 3 1 RAJESH, S/O RAMACHANDRAN NAIR, RAJI NIVAS, NAVAIKULAM PO. 695 016 2 ASOK KUMAR, S/O THANKAPPAN PILLAI MELECHARUVILA VEEDU, KUDAVOOR - 695 011 3 THE BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD., NEAR MUNICIPAL BUS STAND, ATTINGAL, THIRUVANANTHAPURAM 695 003. R3 BY ADV.SRI.JOHN JOSEPH VETTIKAD SRI.C.JOSEPH JOHNY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 1st day of March, 2023 The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Attingal (for short ‘the Tribunal’) on 26.04.2012 in O.P.(MV) No.841/2005. The appellant before this Court is the petitioner before the Tribunal.
2. The parties to this Appeal will hereinafter be referred to as the petitioner and respondents 1 to 3 in accordance with their status in the Original Petition before the Tribunal.
3. The facts of the case in brief are to the following effect: The petitioner is a man aged 30 years and in the Original Petition filed before the Tribunal seeking for a sum of `1,10,000/- as compensation from the respondents, he was
originally shown as riding the motorcycle. It is alleged that while travelling as pillion rider in a motorcycle bearing Registration Number KL-07/AU-6013, the vehicle was hit by an autorickshaw bearing Registration Number KL-01/L-7059 driven by its driver in a rash and negligent manner and thereby he sustained injuries. He was treated for the injuries sustained. Alleging that the motor accident was occurred due to the rash and negligent driving of the autorickshaw by its driver and claiming a sum of `1,10,000/- as compensation, the Original Petition was filed.
4. The owner, the driver and the insurer of the
autorickshaw were arrayed as respondents 1 to 3 in the Original Petition. The 3rd respondent insurer has filed a written statement contending that the petitioner infact was riding the motorcycle at the relevant time of the accident without a valid and effective driving licence and therefore the accident was resulted from his own negligence.
5. Based on the contention taken by the 3rd respondent, the Tribunal has directed the petitioner to produce the driving licence. Instead of producing the driving licence, he filed an
application seeking to amend the Original Petition by incorporating a plea that he was pillion riding on the motorcycle at the relevant time of the accident. The amendment was allowed by the Tribunal and it was also carried out in the Original Petition. Therefore in the Original Petition, the petitioner stands as pillion rider on the motorcycle.
6. Before the Tribunal, as evidenced from the side of the petitioner, Exts.A1 to A13 were marked. No evidence was
adduced by the respondents. In the impugned award, the Tribunal found that the petitioner though directed to produce the driving licence, failed to produce it and got the Original Petition amended by incorporating the plea that he was pillion riding on the motorcycle. The Tribunal felt in the context that the petitioner has purposefully changed his status as a pillion rider on the motorcycle to get himself avoided from the fixation
of liability in the matter of payment of compensation. The Tribunal has also found that a passenger in the autorickshaw had also sustained injuries in the motor accident in question.
7. It is noticed that the Tribunal has overlooked Ext.A1,
the FIR registered on 05.07.2005 and the Final Report prepared at Kallambalam Police Station with reference to the motor accident in question, marked in evidence respectively as Exts.A1 and A5. The FIR was found registered on the very next day of the motor accident in question and the Final Report was also laid on the immediately succeeding date of registration of
crime. It is found from Ext.A5 that the driver of the Autorickshaw was chargesheeted for rash and negligent driving
and causing the motor accident. When a charge sheet is produced and marked in evidence, in view of the dictum in The New India Assurance Co.Ltd. v. Pazhaniammal [2011 (3) KLT 648], that will form prima facie evidence of negligence on the part of the person stands chargesheeted there for rash and negligent driving. In order to rebut it, the insurer has to adduce evidence to prove collusion among the petitioner and the investigating officer to chargesheet the person. A plea was found taken in the written statement filed by the 3 rd respondent that the motor accident was occurred due to negligence of the
petitioner himself. But evidence has not been adduced to disprove Ext.A5. No evidence has also been let in by the 3 rd respondent to establish that Ext.A5 was the outcome of a collusive act of the petitioner and the investigating officer.
8. True that the petitioner got the Original Petition amended and a plea was also incorporated there to the effect
that he was pillion riding on the motorcycle. The learned counsel has invited the attention of this Court to column No.10 of the Original Petition wherein the petitioner was shown as the pillion rider on the motorcycle bearing Registration Number KL- 07/AU-6013 at the relevant time of the motor accident. According to him, a mistake was crept in while describing the motor accident under column 28 of the Original Petition that the petitioner was riding the motorcycle and the same is lateron
corrected by way of amendment. But the facts brought into the Original Petition by way of amendment will not help the petitioner, when the final report indicative of rash and negligent driving of the autorickshaw by its driver is available to the
Tribunal. Undoubtedly, the Tribunal erred in dismissing the Original Petition and declining compensation to the petitioner who was injured in a motor accident relying on the change of status brought into the Original Petition by way of amendment. The impugned award being passed on the basis of the new status of the petitioner brought in by way of amendment in the Original Petition, is only to be set aside.
In the result, MACA stands allowed. The impugned award is set aside and O.P.(MV) No.841/2005 is remitted to the Tribunal for re-consideration in the light of Ext.A5, fixation of just and reasonable compensation and passing of an award within a period of two months from the date on which a certified copy of this judgment is received. Sd/- MARY JOSEPH JUDGE MJL