M.A.C.T, KOZHIKODE v. T.SHAMEER

BY ADV.SRI.RAJAN P.KALIYATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA.No.566/2012 2 JUDGMENT The appellant was the petitioner in O.P.(MV).No.2882 of 2001 on the files of the 1st Addl. Motor Accidents Claims Tribunal, Kozhikode. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 11.08.2000.

2. According to the appellant, the accident occurred when the scooter ridden by him was hit by another motorcycle bearing registration No.KL-10 H 1660 ridden by the 3rd respondent. The 1st respondent was the owner of the said motorcyle and it was insured with the 2nd respondent. According to him, he sustained very serious injuries in the accident and the claim petition was submitted in such circumstances.

3. The 2nd respondent alone contested the matter. They filed a written statement admitting the existence of a valid policy for the motorcycle bearing registration No.No.KL-10 H 1660. However, they disputed the negligence on the part of the 3rd respondent. Subsequently, an additional written statement was also filed by the 2nd respondent wherein it was pointed out that, in the accident, the pillion rider on the motorcycle insured with them died and in respect of the incident, the Police registered Crime No.161 of 2000 against the appellant herein. Seeking MACA.No.566/2012 3 compensation for the death of the pillion rider on the said motorcycle, O.P.(MV).No.2372 of 2000 was filed before the Principal Motor Accidents Claims Tribunal, Kozhikode, wherein the award was passed holding the appellant herein responsible for the accident. It was also averred in the additional written statement that the appellant, suppressing the fact that the Koduvally Police Station registered crime No.161 of 2000 against him, got another crime registered as Crime No.18 of 2001 by filing a private complaint. In such circumstances, they sought dismissal of the claim petition.

4. The evidence in this case consists of the oral testimony of the appellant himself as PW1 and Exts.A1 to A8 from the side of the appellant. The respondents marked Ext.B1, which is a copy of the award passed in O.P.(MV).No.2372 of 2000 by the Principal Motor Accidents Claims Tribunal, Kozhikode. After the trial, the Tribunal dismissed the claim petition submitted by the appellant, holding that he failed to prove the negligence on the side of the 3rd respondent and the accident occurred due to the negligence on the part of the appellant himself. This appeal is submitted in such circumstances challenging the aforesaid finding. MACA.No.566/2012 4

5. Heard Sri.R.Bindu Sasthamangalam, learned counsel for the appellant and Sri.Rajan P. Kaliyath, learned counsel for the 2nd respondent Insurance Company.

6. The only issue that arises for consideration is the question as to whose negligence the accident occurred. The learned counsel for the appellant would submit that the accident occurred due to the negligence of the 3rd respondent, whereas the learned counsel for the 2nd respondent/ insurance company would contend that there are ample materials indicating that the accident occurred due to the negligence of the appellant himself. The learned counsel for the Insurance Company places reliance upon the award passed in O.P.(MV).No.2372 of 2000, wherein it was held that the accident occurred due to the negligence on the part of the appellant and the insurer of the vehicle of the appellant was held liable to pay the compensation.

7. In response to the aforesaid contention, the learned counsel for the appellant would point out that, as far as the award passed in O.P.(MV).No.2372 of 2000 is concerned, in the said proceedings, the appellant was not a party and, therefore, the finding in that award cannot be treated as a ground to discard the contention raised by the appellant with respect to the negligence. On going through the materials placed on record, it is evident that MACA.No.566/2012 5 even though crime No.161 of 2000 was registered against the appellant by the Koduvally Police, the said criminal prosecution ultimately resulted in Ext.A8 judgment passed by the Judicial First Class Magistrate Court-I, Thamarassery as C.C.No.420 of 2001 as per which the appellant was found not guilty. The grievance highlighted by the appellant is that, consequent to the injuries sustained in the accident he was under treatment in Medical College Hospital, Kozhikode for a long period and therefore, the complaint with respect to the accident could be submitted by him only after more than three months, by way of a private complaint before the Judicial First Class Magistrate Court, Thaliparamba. On the basis of the private complaint, crime No.18 of 2001 was registered by the Koduvalli Police and a final report was submitted in the said case as per Ext.A6, taking note of the fact that as crime No.161 of 2000 has already been registered against the appellant and after investigation final report has been submitted, further investigation in Crime No.18 of 2000 cannot be conducted. Accordingly, as per Ext.A6 final report, it was submitted to the effect that further action dropped.

8. Thus, it is evident that, in view of the final report submitted in Crime No.161 of 2000, no investigation was conducted on the complaint submitted by the appellant. With MACA.No.566/2012 6 regard to the final report submitted in Crime No.161 of 2000 of Koduvally Police Station, the crucial aspect to be noticed is that it ultimately culminated in the acquittal of the appellant as well. Therefore, on going through the entire materials placed on record, it could be seen that, no specific materials are available to take a clear decision as to the question of negligence. For taking a decision, the records pertaining to Crime No.161 of 2000 by itself cannot be taken into consideration in view of the fact that it resulted in acquittal of the appellant after a full fledged trial. On the other hand, when the records with respect to the crime registered at the instance of the appellant are taken into consideration, it can be seen that no investigation was conducted in the same. When all the police reports are kept aside, the only other evidence available is that deposition of PW1, the appellant himself. Since, it is an interested version of the appellant, as pointed out by the learned counsel for the Insurance Company, it is also not safe to decide the question on the basis of the said evidence alone. Of course, it is true that, Ext.A7 scene mahazar was also produced before the Court to show that as per the same, rider of the motorcycle was on the wrong side at the relevant time. But the learned counsel for the insurance company would point out that, Ext.A7 is the scene mahazar prepared in the crime MACA.No.566/2012 7 registered at the instance of the appellant and it was prepared after four months of the accident, whereas as per the scene mahazar which was prepared on Crime No.161 of 2000, the appellant was on the wrong side. However, the said document is not a part of the records before the Tribunal or before this Court.

9. Similarly, even though in award passed in O.P. (MV).No.2372 of 2000 by the Principal Motor Accidents Claims Tribunal, Kozhikode, the finding was to the effect that the accident occurred due to the negligence of the appellant herein, evidently, the appellant was not a party to that proceedings and therefore, the said finding cannot be treated as something binding upon the appellant as well. Thus, when all the aforesaid aspects are taken into consideration, it is to be noted that no clear evidence is available to conduct an effective adjudication in this case. The fact that the appellant sustained injuries in the accident is evident from the records. Apparently, there is no serious challenge about the said aspect, but the dispute is only with respect to the person responsible for the accident. In such circumstances, as the appellant was also found to have sustained injuries in the accident, I deem it appropriate to grant an opportunity to the appellant to establish his case as to the MACA.No.566/2012 8 negligence on the part of the rider of the motorcycle, the 3 rd respondent herein.

10. In such circumstances, this appeal is allowed by setting aside the award dated 03.11.2011 passed by the 1 st Addl.Motor Accidents Claims Tribunal, Kozhikode in O.P.(MV).No.2882 of 2001 and remanding the matter back to the Tribunal to enable the appellant and the respondents to adduce evidence before the Tribunal to adjudicate the question of negligence. The Tribunal shall give reasonable opportunities to the parties concerned, and shall take a decision after appreciating the evidence. The parties are directed to appear before the Tribunal on 19.02.2024. In case any of the parties are not appearing before the Tribunal, the appellant shall take necessary steps to serve notice on the said respondents and thereupon the question of negligence and other consequential aspects shall considered by the Tribunal after evaluating the evidence adduced by the parties concerned. Sd/- ZIYAD RAHMAN A.A. JUDGE DG/10.1.23