Motor Accidents Claims; United India Insurance Vs. Saji John [Kerala High Court, 27-05-2016]

Motor Vehicle Act, 1988 – Section 157 –¬†Substitution of Vehicle by the Claimant – Whoever may be the owner, the insurer will be liable i.e. the policy will go along with the vehicle¬†– Only because there is a difference in the number of the vehicle given in the F.I. Statement and the claim petition, it cannot be held that there is a substitution of vehicle. The burden of proof is upon the party who asserts that there is substitution of vehicle involved in the accident. The burden of proof can be discharged only by reliable evidence. Apart from the bald assertion of the appellant in the appeal memorandum, there is nothing on record to show that there is substitution of vehicle so as to absolve the liability of the appellant to pay compensation.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.

M.A.C.A.No.1941 of 2010

Dated this the 27 th day of May, 2016

AGAINST THE AWARD IN OPMV 442/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PUNALUR DATED 31-03-2010

APPELLANT(S)/2ND RESPONDENT

UNITED INDIA INSURANCE CO.LTD KUNDARA BY ADV. SRI.P.V.JYOTHI PRASAD

RESPONDENT(S)/PETITIONER & RESPONDENTS 1 AND 3

SAJI JOHN AND OTHERS

R1 BY ADV. SRI.ANCHAL C.VIJAYAN R2 BY ADV. SRI.B.MOHANLAL

J U D G M E N T

Jyothindranath, J.

This appeal is preferred against the award in O.P. (M.V.)No.442/2004 on the file of the Motor Accidents Claims Tribunal, Punalur. The United India Insurance Company Limited, the second respondent before the Tribunal, is the appellant herein. Shorn of unnecessary details, the relevant facts for consideration of this appeal is as follows:

A motor vehicle accident occurred involving a motorcycle bearing registration No.KL-2-M/4758 and another two wheeler. A claim petition was moved by the rider of the motorcycle bearing registration No.KL-2- M/4758 before the Tribunal. The Tribunal awarded a total compensation of Rs.1,16,500/- and directed the appellant herein to pay the amount. It is the case of the appellant herein that when the F.I. Statement was given by the claimant, the number of the offending vehicle was given as OR.14-F/2495 Bajaj caliber. Deviating from the same, now the claimant filed this claim petition showing the offending vehicle as scooter bearing registration No.KL-2-B/5094 and arraying the owner of the said vehicle as well as the alleged rider of the said vehicle as respondents Nos. 1 and 3 respectively. The grievance of the appellant is that the vehicle was changed and as such a liability came upon the appellant as it being the insurer of the changed vehicle though the insured vehicle had not actually involved in the accident.

2. We heard both counsel.

3. The learned counsel appearing for the Insurance Company submitted before us that the F.I. Statement is the earliest statement given to a person in authority and the contents therein should have been given due evidentiary value and therefore, the Tribunal should have found that the vehicle now on picture is not actually the one involved in the accident and should have exonerated second respondent from liability. It is the further submission that even at the time of cross examination, PW1 admitted that Joppan was the person who was riding the vehicle.

4. The learned counsel appearing for respondent No.2 i.e. the owner of the vehicle submitted before us that he was not actually the owner of the vehicle at the time of accident. The vehicle was sold by that time.

5. By virtue of Section 157 of the M.V. Act, it can be seen that whoever may be the owner, the insurer will be liable i.e. the policy will go along with the vehicle.

6. The next point to be considered is that whether there was a substitution of vehicle by the claimant. No evidence was adduced by the insurance company before the Tribunal.

7. Thus, the question mooted before us is that if there is a difference in the number and description of the vehicle given by the injured in the F.I. Statement and claim petition, whether that itself will be sufficient to draw an inference that there is substitution of vehicle involved?

8. We have perused the documents marked in this case. The said F.I. Statement of the claimant is not marked before the Tribunal. The final report is marked as Ext.A2. In the said final report, respondent No.3 is shown as accused, i.e. the rider of the offending vehicle bearing Reg.No.KL 2/B 5094. Respondent No.3 pleaded guilty and the certified copy of the judgment in C.C.No.100/2004 of the Judicial First Class Magistrate Court No.1, Kottarakkara is produced and marked as Ext.A10. Claimant was examined as PW1 before the Tribunal and he deposed that the vehicle involved is KL 2/B5094. Even though PW1 deposed that ‘Joppan’ was riding the vehicle at the time of accident, it is to be remembered that the name of third respondent is that Jacob Thomas @ Joshan. The only dispute is regarding the vehicle involved.

9. Appreciating all these materials, it is found that only because there is a difference in the number of the vehicle given in the F.I. Statement and the claim petition, it cannot be held that there is a substitution of vehicle. The burden of proof is upon the party who asserts that there is substitution of vehicle involved in the accident. The burden of proof can be discharged only by reliable evidence. Apart from the bald assertion of the appellant in the appeal memorandum, there is nothing on record to show that there is substitution of vehicle so as to absolve the liability of the appellant to pay compensation. Practically there is no material before the Tribunal to show that the vehicle bearing registration No.OR.14-F/2495 Bajaj caliber was involved in the accident.

There is no merit in the appeal. Hence the appeal is dismissed.

No costs.

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