IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 MACA.No. 1416 of 2007() ----------------------- OPMV.424/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT(S): APPELLANT/2ND RESPONDENT --------------------------------------- UNITED INDIA INSURANCE COMPANY LTD., REP. BY ITS ASST. MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11. BY ADV. SRI.P.V.JYOTHI PRASAD RESPONDENT(S): PETITIONERS 1 TO 4 & RES.1,3,4 & 5 RESPECTIVELY -------------------------------------------------------------- 1. JAYAKUMARI, D/O. OMANA, SIVAPADOM, KAILAS LANE, KUDAPPANAKUNNU P.O., THIRUVANANTHAPURAM. 2. ANITHAKUMARI, D/O. OMANA, POOVATHOOR HOUSE, TC 31/620, S.N.NAGAR, PETTAH P.O., THIRUVANANTHAPURAM-24. 3. ANILKUMAR, S/O. LATE VASU, ANEESH BHAVAN, KP-III/232, KARIKKAKOM BEACH P.O., THIRUVANANTHAPURAM-7. 4. SREEKALA, D/O. OMANA, ANEESH BHAVAN, KP-III/232, KARIKKAKOM BEACH P.O., THIRUVANANTHAPURAM-7. 5. SUNILKUMAR FENN, MANAGING PARTNER, M/S. GATEWAY SYSTEMS, TC 11/781, VAYAL ROAD, PLAMOODU, THIRUVANANTHAPURAM. 6. PEERUMOHAMMED, TC 35/1245, P.D.NAGAR, VALLAKADAVU P.O., THIRUVANANTHAPURAM. ......2 -: 2 :- 7. M.SANTHOSH @ KEERI, S/O. MURUGAN ASARI, G.G.NILAYAM, TC 32/680, BALA NAGAR, VETTUCAUD, THIRUVANANTHAPURAM. 8. M/S. NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, KOTTARATHIL BUILDINGS ANNEXE, PALAYAM, THIRUVANANTHAPURAM. ADV. SRI.P.G.GANAPPAN FOR R8 SRI.NAGARAJ NARAYANAN FOR R3 SRI.SAIJO HASSAN FOR R3 SRI.NAGARAJ NARAYANAN FOR R1,2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- M.A.C.A. No.1416 of 2007 ------------------------------------------------- Dated this the 6th day of September, 2011 JUDGMENT Basant,J. This appeal is preferred by the insurance company against the award passed by the Tribunal in O.P.Nos.424/01 and 68/02. The challenge in this appeal is directed only against the finding on the question of negligence. The Tribunal had found the driver of the insured vehicle/car was the person responsible for the accident. In this appeal the short question that arises for consideration is about the correctness of the finding on the question of negligence. 2. The road at the scene of occurrence admittedly lies north towards south. A tempo van was proceeding in front. The insured vehicle/car was proceeding behind the tempo van. The driver of the insured vehicle/car made an attempt to overtake the M.A.C.A. No.1416 of 2007 -: 2 :- tempo van which was proceeding in front. In that attempt the car obviously went over to the right hand side of the road. The car was proceeding from north towards south. An autorikshaw was coming in the opposite direction. There was a collision between the insured vehicle/car and the autorikshaw. A passenger in the autorikshaw by name `Sreekumar' suffered injuries and succumbed to those injuries. Others had also suffered injuries. In respect of the death of the said Sreekumar, two petitions were filed claiming compensation. The Tribunal found that the accident had taken place on account of the negligence on the part of the driver of the insured vehicle/car who had allegedly attempted to rashly and negligently overtake the tempo van which was proceeding in front. The Tribunal found that in the course of such attempt the car had gone to its wrong side (western side of the road) and had collided against the autorikshaw. 3. This finding was entered into by the Tribunal as per the discussions in paragraph-10 of the impugned award under Issue No.1. 4. The learned counsel for the appellant assails the said finding. The road at the scene of the crime has a width of 7.35 Mtrs. The car was being driven from north towards south. The M.A.C.A. No.1416 of 2007 -: 3 :- autorikshaw was proceeding from south towards north. Without any dispute, the accident had taken place when the car made an attempt to overtake the tempo van and in the course of such attempt came over to its wrong side (western side of the road). It was on the western half of the road that the collision between the autorikshaw and the car took place. In support of the case, the claimants had produced Ext.A1 FIR, Ext.A2 scene mahazar as also Ext.A6 final report submitted by the police. The police, after investigation, had come to the conclusion that the driver of the car was culpably rash and negligent. No contra evidence whatsoever was adduced before the Tribunal. We have been taken through the scene mahazar Ext.A2 in detail. It is impossible to ascertain from Ext.A2 scene mahazar the precise spot of the impact. 5. In New India Assurance Co. Ltd., v. Pazhaniammal and others (2011 (3) KLT 648) a Division Bench of this Court has already adverted to the relevance and significance of the final report filed by the police. The final report can certainly persuade the court to come to appropriate conclusion about the alleged negligence. In the total absence of any contra evidence, it would be absolutely safe to accept and act upon the final report submitted by the police after due investigation. M.A.C.A. No.1416 of 2007 -: 4 :- 6. In this case it is evident that the driver of the insured vehicle/car was making an attempt to overtake another vehicle and in the course of such attempt, the vehicle had gone over to its wrong side (western half of the road). In the total absence of any better evidence, these indications are eminently sufficient to come to a safe conclusion that the accident had taken place on account of the negligence of the driver of the insured car. We find absolutely no reason to disagree with the conclusion of the Tribunal. Actionable negligence, as foundation of liability in a claim under Sec.166 of the M.V. Act is established. We intend to render no opinion on the question of culpable negligence. 7. The learned counsel for the respondents in the appeal submits that the insurance company had attempted to challenge the very same finding on the question of negligence in a connected appeal which was also directed against the same impugned common award. In that case, another Division Bench of this Court has confirmed the liability of the insurer of the car to pay compensation to another victim. In that view of the matter also, we find no merit in the challenge raised by the appellant/ insurance company against the finding on the question of negligence. We are satisfied that this appeal, in these circumstances, only deserves to be dismissed. We are taking M.A.C.A. No.1416 of 2007 -: 5 :- M.A.C.A Nos.559 and 524 of 2007 against the same impugned common award separately for consideration. In those appeals the question of negligence raised in this appeal is not relevant. As the challenge against the finding of negligence does not merit favourable consideration and as no other ground of challenge is raised in this appeal, we are satisfied that this appeal can be dismissed now. 8. This appeal is, in these circumstances, dismissed. Sd/- R. BASANT (Judge) Sd/- K. SURENDRA MOHAN (Judge) Nan/rtr //true copy// P.S. to Judge