MACA/959/2006 of THE ORIENTAL INSURANCE CO.LTD. Vs SHAJI KURIAN on 31 December 2012

1. SHAJI KURIAN, S/O.KURIAN, CHAKKATHARA (PUZHAKKARA) HOUSE, MENMADANGU P.O. ARAKUZHA.

2. K.M.ABDUL JAMAL, KALAPURACKAL HOUSE,

UNIVERSITY P.O., KOCHI.

3. K.C.REJI, S/O.CHACKO, KIZHAKKEKOCHUKUNNEL HOUSE, KOOTHATTUKULAM P.O.

R1 BY ADV. SRI.T.K.KOSHY R2 BY ADVS. SMT.M.A.VAHEEDA BABU SRI.M.A.ABDUL HAKHIM

SRI.K.A.NOUSHAD

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 31-12-2012, ALONG WITH MACA. 960/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

Mn

S. SIRI JAGAN & C.K. ABDUL REHIM, JJ.------------------------------------------------- M.A.C.A Nos. 959 & 960 OF 2006

------------------------------------------------- DATED THIS THE 31[st] DAY OF DECEMBER, 2012J U D G M E N T

Siri Jagan, J:

The Insurance company in OP(MV) Nos.222 and223/2002 before the Motor Accident Claims Tribunal,Muvattupuzha, arising from the same motor vehicleaccident is the appellant herein. They are challenging thecommon award passed by the Tribunal in the said claimpetitions.

2. The 1[st] respondent in each of the appeals are theclaimants in the motor accident claims. Their case was thatwhile they were travelling in a scooter bearing registrationNo.KL-6-7073 as rider and pillion rider, a motor cyclebearing registration No.KL-7N 8432 driven by the 3[rd]respondent in the appeals, owned by the 2[nd] respondent andinsured with the appellant hit the scooter from behind as aresult of which the scooter skidded and hit against a mud wall causing injuries to both the rider and pillion rider.After taking evidence the Tribunal awarded Rs.68,500/- ascompensation to the petitioner in OP(MV) No.222/2002 andRs.32,500/- to the claimant in the other OP(MV). TheInsurance company is challenging the same on the groundthat they are not liable to pay any compensation to theclaimants, since the motor cycle was never involved in theaccident. According to them, the scooter skidded on its ownand hit against the mud wall resulting in the accident andinjuries to the claimants. They had falsely named the driverof the motor cycle as the tortfeasor, which motor cycleactually belongs to the brother of the petitioner in OP(MV)No.222/2002 and a false case was set up to the effect thatthe motor cycle hit the scooter from behind resulting in theaccident. It is submitted that the documents and theevidence adduced by the claimants themselves will provethis beyond any reasonable doubt. It is pointed out thatExt.A7 wound certificate issued by the doctor who treatedthe driver of the scooter at 11.45 p.m.on 08-12-2001, whichis the date of accident, there is no mention of any motor

cycle accident and the same referred to only a fall from thescooter after skidding. The counsel for the Insurancecompany points out that at no point of time except in cross-examination, PW1, the driver of the scooter mentioned thefact that the motor cycle belongs to his brother. Accordingto the learned counsel, till the cross-examination theclaimants proceeded as if the motor cycle was driven by astranger and because of their negligence the accidentoccurred. It is in cross-examination the rider of the scooterfirst admitted that the motor cycle belongs to his brother.He further stated in answer to a pointed of question by thecounsel for the insurance company as to whether or not theaccident occurred because of the negligence of the driver ofthe scooter in the affirmative. It is also stated that in thecross-examination it is specifically admitted that thecriminal case was registered for the purpose of the claim.PW1 further originally admitted that in the criminal casethe driver of the motor cycle was acquitted. Later on headded that the driver admitted guilt and paid the penalty.PW1 specifically admitted that the money for payment of the fine was collected by the claimants as well as otherswho are the friends of the driver of the motor cycle. It ispointed out that the FIR was registered only at 7.15 p.m. onthe next day after the accident and the story of the motorcycle hitting the scooter from behind is clearly anafterthought to give credence to the claim in thecompensation cases. It is further pointed out that in the FIRalso it is specifically stated that as per the intimation fromthe hospital, the accident occurred on account of thescooter skidding and hitting against the mud wall. Thecounsel points out that in Ext.A4 report of the AssistantMotor Vehicle Inspector, who inspected the motor cyclecertified that no damage was noticed in the motor cycle,whereas in Ext.A5 report of the very same Assistant MotorVehicle Inspector all the damages to the scooter were on itsfront side and there was no damage noticed on the backsideof the scooter. Counsel submits that if the case of theclaimants that the motor cycle hit the scooter from behindis true, certainly there would be damage to the scooter onthe back side also. According to the learned counsel for the insurance company all these facts would lead to theirresistible inference that the story of motor cycle hittingthe scooter from behind causing the accident is clearly anafterthought concocted to give credence to the claims forcompensation, which can be recovered from the insurancecompany since the motor cycle is insured with appellantinsurance company.

3. In answer to the contentions of the insurancecompany the counsel for the claimants would argue that thefacts speak for themselves and this is a clear case where themaxim res ipsa loquitor has to be applied. It is submittedthat the absence of the fact regarding the motor cyclehitting the scooter from behind in the wound certificatecannot be held against the claimants, since the rider of thescooter had suffered serious injuries and when he was takento the hospital he may not have stated all the relevant factsto the doctor. The F.I statement was given by the pillionrider the next day itself, in which the fact of the motor cyclehitting the scooter has been specifically mentioned.According to the counsel for the claimants the admission by

PW1 in the cross-examination that the accident occurred

Analysis

MACA Nos.959 & 960/2006

PW1 in the cross-examination that the accident occurred because of the negligence of PW1 was clearly a mistake onaccount of the witness not understanding the questioncorrectly. It is submitted that in the re-examination it hasbeen sufficiently clarified as well. The counsel submits thatthe fact that there are some doubts or obscurity here andthere in the evidence of the claimants will not in any wayrender the evidence of the claimants unacceptable. Thecounsel relies on the decision of the Supreme Court inN.K.V. Bros (P) Ltd. V. M. Karumai Ammal andothers (1980) 3 SCC 457) in support of the saidproposition. The counsel therefore submits that thatclaimants have sufficiently proved their case to meritcompensation for the injuries suffered by them on accountof the accident.

4. We have considered the rival contentions indetail. After considering the arguments on both sides, weare inclined to agree with the counsel for the appellants.That is not merely because in the wound certificate themotor cycle causing the accident has not been mentioned.

We have considered the rival contentions in

That is only one of the circumstances which would lead tothe ultimate conclusion. But certainly the absence of themention of the motor cycle in the wound certificate, whichis one of the earliest document in respect to the accident,has to be given due weight. Normally when an accidentvictim is taken to the hospital, he is likely to state the causeof the accident. Here all what the rider of the scooter hasmentioned is skidding of the scooter and hitting against amud wall. It is pertinent to note that the story put up by theclaimants is that the riders of both the scooter and motorvehicle were going together for a wedding party. The ridersof the motor cycle were also asked to accompany the ridersof the scooter. But the riders of the motor cycle said thatthey can accompany the riders of the scooter only if avehicle is arranged for them. Thereupon, the rider of thescooter arranged his brother's motor cycle for the riders ofthe motor cycle to travel along with the riders of the scooterto the marriage party. While they were going together,because of the negligence of the driver of the motor cycle,the same hit behind the scooter causing the accident is the story put up by the claimants. But it is significant to notethat this case was propounded by the claimants only in there-examination of PW1, after PW1 was forced to admit thatthe motor cycle belongs to his brother. Neither in the claimpetition nor in the chief examination, PW1 stated that theriders of the scooter and the motor cycle were goingtogether to the same destination and the motor cyclebelonged to the brother of the driver of the scooter. We areof the opinion that the claimants deliberately suppressedthe said fact. This is clear from the fact that it was in thecross-examination that PW1 admitted that the motor cyclebelonged to the brother of the driver of the scooter. To apointed question by the counsel for the insurance companyPW1 answered as follows:

“Motor cycle -W §øáKÕV çùÞÁßW ÕàçÃÞ (Q)

¾ÞX µIßÜï (A)

ÈßBZ ¥dÖiÎÞÏß ³¿ßºîí µÏîÞÜÏßW §¿ßºîá ÉøáçAxÄçÜï(Q)

¥çÄ(A)”

Thereafter PW1 specifically admitted that the criminal casewas registered for the purpose of the motor accident claim.

He originally stated that in the criminal case the driver ofthe motor cycle was acquitted, but later he corrected thatthe driver admitted guilt and paid fine. It is also admittedthat the amount required for paying the fine was collectedby the claimants as well as the other friends of both.Further it is significant to note that the motor cycle did notsuffer any damage on account of the collision which isunnatural if the motor cycle hit behind the scooter. It is alsounnatural that the the scooter did not suffer any damageson the back side which would normally have been the caseif the motor cycle had hit the scooter from behind. All thesecircumstances lead to the irresistible conclusion that themotor cycle hitting the scooter from behind is a concoctedstory for the purpose of giving false credence to the claimfor compensation from the insurance company. As such weare of the opinion that the accident did not occur in the waythe claimants wanted the court to believe and in fact themotor cycle was not involved in the accident at all.Consequently the claimants are not entitled to anycompensation from the insurance company of the motor cycle which is the appellant in these two motor accidentclaim appeals. Accordingly we set aside the common awardof the Motor Accident Claims Tribunal, Muvattupuzha in OP(MV) Nos.222 and 223/2002 allowing the appeals andholding that the appellant is not in anyway liable to pay anyamounts towards compensation in respect of the accident inquestion.

Sd/-

S. SIRI JAGAN, JUDGE.

AMG

Sd/-C.K. ABDUL REHIM, JUDGE.

True copy

P.A to Judge