IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 MACA.No. 1132 of 2006(F) ------------------------------------- (O.P(MV).NO.341/2001 OF ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY) .................... APPELLANT/PETITIONER: ------------------------------------- T.N.SASEENDRAN, S/O. GOPALAKURUP, AGED 40 YEARS, CHUNDAKATTIL HOUSE, KOLARI, MATTANNUR P.O., KOLARI, KANNUR. BY ADV. SRI.M.V.AMARESAN. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. P.K.MOHANAN, S/O. KUMARAN, PADICHIKANDY HOUSE, NIDUVOTTUMKUNNU, PAZHASSI AMSOM, VANDICHAL, KANNUR. 2. V.VIJESH, S/O. KUMARAN, PADICHIKANDY HOUSE, NIDUVOTTUMKUNNU, PAZHASSI AMSOM, VANDICHAL, KANNUR. 3. THE NEW INDIA ASSURANCE COMPANY LTD., BRANCH OFFICE, THALASSERY. R3 BY ADV. SRI.P.M.M.NAJEEB KHAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. ........................................... M.A.C.A.NO.1132 OF 2006 ............................................. Dated this the 9th day of June, 2010. J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Thalassery in OP(MV)No.341/2001. It is alleged that when the claimant was walking along the road, a lorry driven by the second respondent came in a rash and negligent manner and hit on him resulting in serious injuries to him. On the other hand, the respondents would contend that the claimant carelessly crossed the road resulting in injuries to him. The Tribunal did not accept the evidence of PWs 1 and 2 and also did not accept the fact that a police case is registered against the lorry driver but dismissed the case on the ground that the claimant had carelessly crossed the road resulting in injuries to him. In order to arrive at a finding in that way, the Tribunal also relied upon the report in the wound certificate to the effect that the claimant had consumed alcohol at the time of examination by the doctor. The Tribunal has forgotten the fact that pleadings cannot be a substitution for proof. : 2 : M.A.C.A.NO.1132 OF 2006 Respondents 1 and 2 had filed a written statement in the case but it appears that they had not cross examined the witnesses and the insurance company had cross examined. Unless respondents 1 and 2 have been set ex parte and permission is granted under Section 170 of the Motor Vehicles Act, it may not be correct on the part of the Tribunal to have permitted the insurance company to cross examine on the point of negligence. It is not a defence available to them under Section 149 of the Motor Vehicles Act. If Section 170 petition is filed and fraud or collusion is alleged, the insurance company is entitled to cross examine. A driver that too of a heavy vehicle is expected to take extreme care and must have regard for the life of the pedestrians. It is a common practice that pedestrians cross the road to reach other side of the road. Suppose a vehicle is driven at a reasonable speed and when there is clear vision, necessarily a prudent driver can avert the accident by foreseeing the same. The driver did not mount the box to give any evidence to show that it was such an abrupt crossing which did not give any time for the driver to avert the accident. Mere : 3 : M.A.C.A.NO.1132 OF 2006 pleadings cannot be substituted for proof. It was not proper on the part of the Tribunal to have totally brushed aside the evidence of PWs 1 and 2 and rely upon the pleadings of respondents to arrive at the decision of negligence on the claimants. The mere delay in filing or registering the FIR cannot be a ground to hold regarding negligence of the driving. The insurance company as well as owner and driver of the vehicle had admitted about the accident and the contention was only with respect to the negligence. So delay in lodging the FIR should not be a major criteria to decide the case. The learned counsel for the appellant had brought to my notice the fact that the claimant had visited the hospital after hospital and it was revealed at last that he had sustained fracture on the skull. 2. I am not going deep into that materials for the reason that the Tribunal has not considered about the quantum which the claimant is entitled to get in case of success. But at the same time it has also to be stated that the claimant was drunk at the time of the accident. It is true that the medical certificate did not reveal that he was : 4 : M.A.C.A.NO.1132 OF 2006 under the influence of alcohol. It is all the more necessary in a criminal trial but when a person consumes alcohol, some times he losses the balance and that can result in some contribution in the accident. But as the claimant was conscious after the accident and as there was nothing to show that he was completely under the influence of alcohol, one cannot hold that he was totally negligent in the accident. Considering the fact that he was also drunk, I think this is a fit case where the negligence can be apportioned at 80% on the driver of the lorry and 20% on the claimant, in other words the claimant had contributed 20% to the accident. So far as the quantum is concerned, it requires evidence and the matter has to be decided by the Tribunal. 3. Therefore for the purpose of fixing the quantum alone, the matter is remitted back to the Tribunal with a direction to it to permit all concerned to produce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. Parties are directed to appear before : 5 : M.A.C.A.NO.1132 OF 2006 the Tribunal on 21.7.2010. In case the insurance company does not appear on that day, the claimant is directed to take notice to the insurance company. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 6 : M.A.C.A.NO.1132 OF 2006