IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 MACA.No. 727 of 2009(A) ---------------------- OPMV.502/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA .................... APPELLANT(S): 3RD RESPONDENT ---------------------------- THE NATIONAL INSURANCE CO.LTD, PATHANAMTHITTA,REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE,2ND FLOOR, OMANA BUILDING, M.G.ROAD,KOCHI-35. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): CLAIMANT ----------------------- 1. K.V.ABRAHAM,KONDINJAYIL HOUSE, BANGLAKADAVU, VADASSERIKKARA.P.0, PATHANAMTHITTA(DIST). 2. SURESH KUMAR, KOCHU NEDUMPURATHU HOUSE, ANJILKUNNU, ATTACHACKAL.PO, KONNY, PATHANAMTHITTA (DIST). 3. K.S.SUNNY, KOCHUTHUNDIL HOUSE, VAZHAMUTTAM EAST, PATHANAMTHITTA. ADV. SRI.PHILIP M.VARUGHESE FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2009, ALONG WITH WPC NO. 14530 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO.727 OF 2009 and W.P.C.14530 of 2009 = = = = = = = = = = = = = = = Dated this the 18th day of November, 2009. J U D G M E N T These petitions are preferred by the insurance company against the awards of the Motor Accidents Claims Tribunal, Pathanamthitta in O.P.(MV)Nos.502/00 and 518/00. The brief facts necessary for the disposal of the petitions are stated as follows. 2. The claimant in O.P.(MV) 502/00 was riding a scooter bearing Reg.No.KL-3/D-4296 with the other petitioner as a pillion rider. It is the case of the claimant that when it reached near the place of accident, an auto rickshaw came in a rash and negligent manner and hit against the scooter resulting in injuries to them. The insurance company to start with raised a contention that the accident had taken place on account of the negligence of the rider of the scooter and not of the auto rickshaw and therefore contended that the negligence is not to be M.A.C.A. NO.727/2009 & W.P.C.14530/2009 -:2:- attributed on the driver of the auto rickshaw. Subsequently they again amended the written statement contending that the auto rickshaw was not at all involved in the accident and therefore the insurance company is not bound to indemnify. The Tribunal on an exhaustive consideration of the materials held that the accident had taken place between the scooter and the auto rickshaw and both the riders had contributed equally to the accident and therefore found contributory negligence against the claimant in O.P.(MV)502/00 and composite negligence against the rider of the auto rickshaw in the other O.P. and awarded compensation. It is against that decision the insurance company has filed the MACA as well as the writ petition. 3. Heard the learned counsel for the appellant as well as the claimant. Learned counsel for the insurance company in very strong terms contend that the mode of appreciation of materials by the Tribunal is incorrect and indications are to M.A.C.A. NO.727/2009 & W.P.C.14530/2009 -:3:- the effect that auto rickshaw was not involved in the accident. In order to place reliance he refers to the entries in column 8 or 9 of the wound certificate and submits that in both the cases it is stated that injuries are sustained on account of “................................................................ .............................................” It is contended by the learned counsel that if an auto rickshaw was involved, it would have been mentioned and non mentioning of the same tends to show it otherwise. 4. The next point canvassed is that though the alleged accident has taken place on 15th of October, the private complaint is filed only on 19.11.2009 and that the delay is the time required to manipulate. Another point raised was that according to the claimants the accident had taken place at about 6.30 p.m. and the distance from the place of accident to the hospital is hardly 500 mt. whereas the examination time shown in the wound certificate is 9 M.A.C.A. NO.727/2009 & W.P.C.14530/2009 -:4:- p.m. and therein it is stated that “10............................” It is also contended that there is no evidence to prove the damages sustained to the auto rickshaw and that will also indicate the incorrectness of the claimant's case. On the other hand the learned counsel for the claimant would contend that the mere statement in a wound certificate is not sufficient to hold otherwise and that the law was set in motion by a private complaint and the investigating agency after due investigation had filed the charge sheet. In order to resolve the issue the evidence of PWs.1 and 2 and RWs.1 and 2 are to be looked into. It is true that in the wound certificate the word 'Bike ................................... is used. But an entry in a wound certificate cannot be said to be a conclusive proof especially when the person who had made the entry is not examined. Such a question is put to RW1 and he would say it is seen so from the wound certificate. Then it is submitted by PW1 that as he had sustained a M.A.C.A. NO.727/2009 & W.P.C.14530/2009 -:5:- fracture on the mandible and as it took time for recovery and as no police case was seen to be registered he moved the competent Court of jurisdiction to initiate a criminal case and that was the reason for the delay. It can also be seen that the police has investigated the crime and had arrived at a decision that the accident had taken place and laid charge sheet against the driver of the auto rickshaw. It is very interesting to note the following facts as well. 5. In the original written statement filed the insurance company had admitted the accident and also the involvement of the auto rickshaw but denied the negligence of the auto rickshaw driver. They took 5 years to file such a written statement. Then after two years from that date they filed an additional written statement incorporating the plea that the auto rickshaw was never involved in the accident. When confronted with such a difficult situation it is said that it is on the basis of the investigation report such an M.A.C.A. NO.727/2009 & W.P.C.14530/2009 -:6:- additional written statement was filed. The Investigating Officer is examined as RW2 in this case. He would say that he had conducted an enquiry after two years from the date of the accident and he had not examined any of the alleged eye witnesses for arriving at a decision. It has to be remembered the report of the Investigating Officer of the insurance company was available with them when they filed the original written statement. They did not give credence to that report and that is why they admitted the involvement of the auto rickshaw in the accident. To crown all these things further the insurance company had chosen to examine the Investigating Officer, namely the police, more particularly the A.S.I. who has filed the charge sheet in the case. He was their witness. In the very chief examination he had categorically and clearly admitted that the accident had taken place and there was involvement of the auto rickshaw in the accident. They did not attempt to declare him hostile M.A.C.A. NO.727/2009 & W.P.C.14530/2009 -:7:- or had chosen to put any leading questions as contemplated u/s 154 of the Evidence Act. So when their own witness namely RW1 does not support the case of them it has to be stated that the said evidence is also against them. 6. Now the materials available are the evidence of PWs.1 and 2 which has not been shattered in the cross examination and the evidence of RW2 which does not inspire confidence for the reason that the mode of investigation committed by him appears to be most improbable. Therefore from these discussions I find that the analysis of the matter by the trial court regarding the involvement of the auto rickshaw in the accident appears to be correct. 7. Now to avoid further discussion I will consider the question of negligence also in this case. So far as the contributory negligence is concerned it has come up in evidence that the road is having a width of 3.60 mtr. accident had taken place exactly on the middle of the road. M.A.C.A. NO.727/2009 & W.P.C.14530/2009 -:8:- When there is a head on collision as held by the Hon'ble Supreme Court it is a case where both the riders are to be held negligent. Further the wound certificate which is produced and marked by the claimant itself would establish that the rider of the scooter was alcoholic. I am conscious of the fact that one has to be under the influence of alcohol to find him guilty for the offence of negligence under the criminal law but it is not that much necessary in a civil case to find out negligence when a person is statutorily not bound to drive a motor vehicle after consumption of alcohol. So the consumption of alcohol coupled with the place of accident which is on the middle of the road establishes the factum of contributory negligence and that also does not require any interference. 8. So far as the quantum is concerned I am informed that the matter is pending before the Division Bench of this Court and therefore it does not come up for consideration M.A.C.A. NO.727/2009 & W.P.C.14530/2009 -:9:- before this Court. From these discussions I hold that the appeal as well as the writ petition lacks merit and therefore they are dismissed. M.N. KRISHNAN, JUDGE. ul/-