IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 MACA.No. 2202 of 2006() ----------------------- OPMV.877/2000 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL,KOTTAYAM .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- RAMACHANDRAN NAIR, MALILYIL HOUSE, AYMANAM P.O., KOTTAYAM. BY ADV. SMT.MINI ELIZABETH GEORGE RESPONDENT(S): --------------- 1. FRANSISCO X., HOUSE NO.121, GANTOMIORAD, AQUEM, BAIXO, SALCETE, GOA. 2. SHYAM KOT PET, AMBEGAL, PALE, BICHOLIM, GOA. 3. THE ORINETAL INSURANCE CO. LTD., KOTTAYAM DIVISION, REP. BY ITS DIVISIONAL MANAGER. ADV. SRI.A.R.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- M.A.C.A. No. 2202 of 2006 ------------------------------------------------- Dated this the 19th day of August, 2011 JUDGMENT Basant,J. Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which took place on 20/04/1997. According to him, he was pushing his bicycle along the public road from north towards south. In front of him, a Maruti car was proceeding. The insured vehicle came in the opposite direction. According to the appellant, there was an accident involving the Maruti car and the insured vehicle. The insured vehicle had come to the wrong side of the road and had knocked down the appellant/claimant who was pushing his bicycle. In the perception of the appellant, the accident had taken place on account of the rashness and negligence on the part of the driver of the insured vehicle. Accordingly, the appellant claimed compensation from the driver, owner and M.A.C.A. No. 2202 of 2006 -: 2 :- insurer of the insured vehicle - a tempo van. 2. The other respondents did not contest the proceedings. The 3rd respondent, that is the insurance company alone resisted the claim. According to the 3rd respondent, in the original written statement filed by them, the accident had taken place on account of the negligence of the claimant who was pedaling his bicycle. Crime was registered. Investigation was conducted by the police. In the course of investigation, the police found the driver of the insured vehicle - the tempo van culpably negligent. He was indicted. He faced trial. The trial court/ learned Magistrate found the driver of the insured vehicle culpably negligent. He was convicted and sentenced. In the appeal preferred by him, the appellate court reversed the finding. The driver of the insured vehicle was found not guilty and acquitted by the appellate court. After the driver secured the judgment of acquittal, the insurance company filed an additional statement in which a new case was developed that the accident had taken place on account of the negligence of the driver of the Maruti car. 3. The claimant examined himself as PW1. He spoke about the accident. No other evidence was adduced. Ext.A1 file M.A.C.A. No. 2202 of 2006 -: 3 :- was produced which contains the final report filed by the police as also the judgment of conviction by the trial court. Ext.B1 judgment of the appellate court was produced by the insurance company. 4. The tribunal, relied on the judgment of acquittal by the appellate court and came to the conclusion that the driver of the insured vehicle was not culpably liable for the accident. Relying on that judgment, the tribunal took the view that the drivers of the Maruti car and the tempo van must have been equally responsible for the accident. Therefore, the tribunal proceeded to pass the impugned award directing the insurance company to pay only 50% of the loss suffered by the appellant. 5. We have heard the learned counsel for the appellant and the learned counsel for the insurance company. The learned counsel for the appellant contends that the tribunal was grossly in error in coming to the conclusion that the appellant is entitled to recover only 50% of the loss suffered by him from the insurer of the tempo van. The learned counsel contends that so far as the appellant is concerned, he has suffered loss on account of the accident by impact with the insured vehicle which crossed over to its wrong side of the road and knocked down the appellant. M.A.C.A. No. 2202 of 2006 -: 4 :- 6. According to the appellant, the cause of action so far as the appellant is concerned is knocking down of the appellant by the tempo van. The appellant hence wants only to claim against the driver, owner and the insurer of the tempo van and did not hence think it necessary to array the driver, owner and the insurer of the Maruthi car as parties to the claim petition. The appellant is aggrieved by the negligence on the part of the driver of the tempo van which was the direct cause for the injury suffered by the appellant. The learned counsel for the appellant then points out that in the first written statement filed by the insurer of the tempo van (who alone contested the proceedings) there was significantly no whisper of an allegation that the accident had occurred on account of the negligence of any other. In these circumstances, the appellant cannot be found fault with for not having arrayed driver, owner and the insurer of the Maruthi car. The appellant is aggrieved by the conduct of the driver of the tempo van which knocked him down after coming over to the wrong side of the road. The cause of action for the appellant is directly against the driver, owner and the insurer of the tempo van. If they have a case that they were not responsible for the accident and the conduct of some other had led to the tempo van M.A.C.A. No. 2202 of 2006 -: 5 :- knocking down the appellant, it was upto them to have arrayed the necessary parties. What was alleged in the written statement was only negligence on the part of the appellant. There is no semblance of evidence to support the theory that the appellant was in any way responsible for the accident. In the course of arguments before us also there is no case whatsoever for the insurance company now that the accident had taken place on account of any contributory negligence on the part of the appellant. 7. We do take note of the additional written statement filed by the insurance company. After the driver of the tempo van, who was charge sheeted by the police and was convicted by the trial court, secured an order of acquittal from the appellate court, conveniently further allegations were raised in such additional written statement. The allegations which were not raised in the initial written statement are seen raised in the subsequent additional written statement filed. The burden was very heavy on the shoulders of the driver, owner and insurance company of the tempo van in that event to show that the accident occurred not on account of their negligence; but on account of the negligence of some others. The burden was heavy on the driver, M.A.C.A. No. 2202 of 2006 -: 6 :- owner and the insurer of the tempo van to substantiate that contention. The mere production of the judgment of acquittal cannot be held to be sufficient to justify the plea that such burden has been discharged. One must alertly note that the appellant or the driver, owner and the insurer of the other vehicle were not parties at all to such proceedings in which the judgment of acquittal was secured. In these circumstances, we are of the view that the Tribunal did err grossly in coming to the conclusion that the appellant is not entitled to claim the entire loss suffered by him as compensation from the driver, owner and the insurer of the tempo van. The challenge on this ground is thus upheld. We hold that the appellant is entitled to get the entire amount of compensation from the driver, owner and the insurer of the tempo van. 8. Though the learned counsel for the appellant does not make any concession, no serious arguments are advanced against the quantification of the loss by the Tribunal. Virtually, the conclusion of the Tribunal that the appellant had suffered loss to the tune of `5,28,143/- remains unchallenged. We do not find any reason to interfere with the conclusion of the Tribunal on that aspect. M.A.C.A. No. 2202 of 2006 -: 7 :- 9. The learned counsel for the insurance company submits that the option of the insurer to proceed against the driver, owner and the insurer of the Maruthi car may not in any way be fettered. We have not expressed any opinion on that aspect and rights, if any, which the insurer has against such driver, owner and the insurer of the other vehicle are not in any way intended to be fettered by this judgment. 10. The learned counsel for the appellant contends that the interest awarded at 6% per annum is grossly inadequate. We are satisfied that a higher rate of interest deserves to be granted. Interest shall hence be paid at the rate of 7.5% per annum from the date of the petition to the date of payment/realisation. 11. No other contentions are raised by either side. We are satisfied, in these circumstances, that this appeal can be allowed. 12. In the result: (a) This appeal is allowed in part. (b) The appellant is found entitled to receive the entire amount of `5,28,143/- (Rupees five lakhs twenty eight thousand one hundred and forty three only) from the respondents along with interest at the rate of 7.5% per annum from the date of the claim to the date of payment/realisation. M.A.C.A. No. 2202 of 2006 -: 8 :- (c) All other directions of the Tribunal are upheld. Sd/- R. BASANT (Judge) Sd/- M.C. HARI RANI (Judge) jsr/Nan