Divisional Manager United India Insurance Co. Ltd. v. K.R. Kannaraja and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 13TH DAY OF JULY 2016/22ND ASHADHA, 1938** **MACA.No. 2355 of 2009 ( ) --------------------------** **AGAINST THE AWARD IN OPMV 301/2005 of MACT PALA DATED 26-12-2007** ## **APPELLANT/2ND RESPONDENT:** **---------------------------** **DIVISIONAL MANAGER UNITED INDIA INSURANCE CO.LTD.,KOTTAYAM** **BY ADVS.SRI.T.J.LAKSHMANAN IYER SRI.K.N.ABHILASH** ## **RESPONDENTS/1 & 3RD RESPONDENTS AND PETITIONERS:** **--------------------------------------------------** **1. K.R.KANNA RAJA, AGED 82 PERIACHAVADI STREET,VIRUDU NAGAR,, RAJAPALAYAM DISTRICT, TAMIL NADU,, PIN-626112 (DELETED)** **2. SHENMUGAVEL, S/O.PERIASWAMY, THIRIKKODANALALLUR, SINGILIPATTI,, CHOCKAMPATTI P.O.,THENKASI DISTRICT (DELETED)** **3. BABY,W/O.LATE BAIJU, CHOLLANAL HOUSE, KURAVILANGADU KARA,KURAVILANGADU VILLAGE.** **4. BIBIN JOSEPH, S/O. BAIJU (MINOR) DATE OF BIRTH 15.3.1992,, CHOLLANAL HOUSE, -DO- -DO-, REP.BY 1ST PETITIONER HIS MOTHER AS NEXT FRIEND AND GUARDIAN** **5. MARY,W/O.JOSEPH, CHOLLANAL HOUSE, KURAVILANGADU KARA,KURAVILANGADU VILLAGE.** - **R1 AND R2 ARE DELETED FROM THE PARTY ARRAY VIDE ORDER DATED 6.2.2014 IN I.A.NO.293/2014.** ## **R3 TO 5 BY ADV. SRI.SUNNY XAVIER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **C.T. RAVIKUMAR, J. & K.P. JYOTHINDRANATH, J.** ## **------------------------------------------** ## **M.A.C.A. No.2355 of 2009** **-----------------------------------------------Dated this the 13[th] day of July, 2016** ## **J U D G M E N T** ## Ravikumar, J. This appeal is preferred against the award dated 26.12.2007 passed by the Motor Accidents Claims Tribunal, Pala in O.P.(MV) No.301 of 2005. The appellant was the 2[nd] respondent before the Tribunal and in fact, it is the Insurance Company with whom the offending vehicle, viz., a lorry bearing registration No.TN-67/Y-6979 stood insured. 2. The contention of the appellant is that the Tribunal disregarded the evidence let in by the appellant to establish the fact that the accident in question had occurred due to the negligence on the part of the driver of the autorickshaw belonging to the deceased, which hit on the rear side of the aforementioned lorry insured with the appellant. It is the case of the appellant that since the accident occurred due to the M.A.C.A.No.2355/2009 2 exclusive negligence on the part of the deceased, who was actually driving the autorickshaw in question, the legal heirs of the deceased Baiju are not entitled to get compensation. It is also contended by the learned counsel that in view of the aforesaid circumstances, merely because of the fact that the application for compensation was filed under Section 163A of the Motor Vehicles Act, the Tribunal went wrong in holding that the question of negligence could not be looked into. It is submitted that such a finding would go in conflict with the decision of the Hon'ble Apex Court in **National Insurance Co. Ltd.** v. **Sinitha and others** [2011 (4) KLT 821]. The learned counsel for the appellant contended that in the light of the decision in **Sinitha's** case (supra), though the applicant need not plead and prove any of the three faults, namely; wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or any other person, owner or insurer of the vehicle involved in the accident with whom the vehicle involved in the accident stood insured its insurer or the insured could plead and establish any of the aforesaid faults to avoid the statutory liability. In M.A.C.A.No.2355/2009 3 short, the contention is that these crucial position obtained from **Sinitha's** case (supra) was virtually overlooked by the Tribunal while holding that in an application for compensation filed under Section 163A of the M.V.Act, the aspect of negligence is irrelevant and need not be looked into rather, could not be looked into. The learned counsel for the appellant further submitted that the evidence on record would reveal that the appellant had specifically taken up a contention attributing negligence on the part of the deceased in the accident in which he lost his life and for which, respondents 3 to 5 filed application for compensation and also established the negligence pleaded against the deceased. In such circumstances, the learned counsel contended that the Tribunal ought to have dismissed the application for compensation instead granting an award of compensation in the favour of the claimant. 3. The learned counsel appearing for respondents 3 to 5/applicants before the Tribunal contended that a scanning of the evidence on record would reveal that the appellant had not taken a specific contention attributing negligence on the part of the deceased as M.A.C.A.No.2355/2009 4 the cause of the accident. That apart, it is contended that even it is taken that there is such pleading in the written statement it is fact borne out from records that no cogent evidence was adduced by the appellant to establish that the accident had occurred due to the exclusive negligence on the part of the deceased Baiju so as to disentitle respondents 3 to 5 to get compensation for his death. Learned counsel further contended that in the claim petition, it was specifically averred that the offending vehicle lorry was virtually moving backwards on its reverse gear, may be for the purpose of parking the same and the accident occurred at that point of time. 4. Learned counsel for the respondents 3 to 5/applicants contended that a bare perusal of the provision under Section 163A would reveal that there is absolutely no need for the applicants to plead or prove negligence on the part of the driver or owner of the vehicle concerned, to maintain a claim petition under Section 163A of the M.V.Act and at the same time, since the appellant, who is the insurer of the offending vehicle failed to take up a plea of attributing negligence on the deceased and/or failed to establish the same, there is absolutely M.A.C.A.No.2355/2009 5 no reason for interfering with the impugned award. 5. We have heard the learned counsel for the appellant and also the learned counsel appearing for respondents 3 to 5. 6. It is to be noted that though the learned counsel for the appellant submitted that the appellant - insurer has specifically taken up a plea attributing exclusive negligence on the part of the deceased Baiju as the cause of the accident, the learned counsel could not draw our attention to the particular portion in the impugned award which carries such a specific averment. We have gone through paragraph 5 of the impugned award wherein the pleadings taken up by the 2[nd] respondent/appellant in its written statement before the Tribunal were dealt with. In the written statement what was stated is that the contention of respondents 3 to 5 herein/ petitioners therein, regarding the age, occupation and monthly income of the deceased as also the nature of injuries sustained and expenditure are not correct and hence denied. It was therein that the lorry bearing registration No. TN-67/Y6979 was insured with the 2[nd] respondent/appellant herein. Further, it was stated therein that the petitioners were not entitled to get M.A.C.A.No.2355/2009 6 compensation based on the structured formula. Presumably, as an alternative contention, it was pleaded that the amount of compensation claimed is excessive. Thus, it is obvious that in the written statement filed before the Tribunal, the appellant herein, who is the 2[nd] respondent therein had not specifically attributed negligence on the part of the deceased as the cause of the accident. Learned counsel for the appellant contended that the evidence on record would reveal that the 2[nd] respondent had actually adduced evidence before the Tribunal to establish the fact that the accident occurred due to the exclusive negligence of the deceased, Baiju. As noticed herein, it is the grievance that despite the fact that the appellant adduced such evidence, the Tribunal had not looked into such evidence as the Tribunal was of the view that in an application filed under Section 163A of the M.V.Act, the aspect of negligence is irrelevant and need not be looked into. 7. A perusal of the impugned judgement would reveal that with respect to the question of necessity to consider the question of negligence, the Tribunal observed thus “ the question of negligence is not germane for consideration in this case since the application is under M.A.C.A.No.2355/2009 7 Section 163 A of the MV Act.” 8. Now the question is whether such a view taken by the Tribunal is sustainable in the light of the exposition of law by the Hon'ble Apex Court in **Sinitha's** case (supra). In the light of the said decision as also as evident from the provisions under Section 163 A of the MV Act, a claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. However, it was further held therein that it would be open to the insurer or the owner of the vehicle concerned to plead and prove that the death or permanent disablement in respect of which the claim was made occurred due to wrongful act or neglect or default of the deceased or victim. In the light of the decision of the Honourable Apex Court in **Sinitha's** case (supra), we have no hesitation to hold that the Tribunal has clearly erred in law in holding that the question of negligence is not germane for consideration in a case where the application is filed under Section 163 A of the MV Act. The position now available is that in M.A.C.A.No.2355/2009 8 terms of Section 163 A of the MV Act, though the claimant shall not be required to plead or establish that the death or disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person, it will be open to the insurer or the owner of the vehicle concerned to plead or establish that the death or permanent disablement in respect of which the claim has been made occurred due to the wrongful act or neglect or default of the deceased or victim. In the said circumstances, we vacate the finding of the Tribunal that the question of negligence is not germane for consideration in a case where the application is filed under Section 163 A of Motor Vehicles Act. 9. Having held as above, the next question to be considered is whether the appellant, the insurer of the alleged offending vehicle had succeeded in establishing any of the three faults as against the deceased to disclaim the claimants/ respondents 3 to 5 herein. We have already found that neither the second respondent nor the owner of the vehicle had taken up a contention in their respective written statements attributing negligence or in that regard any of the three faults against M.A.C.A.No.2355/2009 9 the deceased as the cause of the accident. Still, we will proceed to consider the question whether the appellant had succeeded in establishing that the accident occurred solely due to any of the three faults from the part of deceased Baiju. 10. The learned counsel for the appellant submitted that the appellants established such facts by producing Exts.B1 to B4. It is apposite to note in this context that no oral evidence was adduced by both sides. In other words, the appellant had not adduced any oral evidence to prove negligence on the part of the deceased. In such circumstances, the question is whether the appellants can be heard to contend that they had successfully discharged the burden in establishing the faults on the part of the deceased to avoid the statutory liability by the mere production of Exts.B1 to B4. Ext.B3 is the inquest report which would reveal that after the death of Baiju, inquest was conducted on his body. In fact, it would only suggest that the accident occurred in a motor vehicle accident and thereupon on the body of the deceased, inquest was conducted. Ext.B4 is the abate report which is also a final report within the purview of Section 173 (2) M.A.C.A.No.2355/2009 10 of the Act. Therefore, the question is whether by the mere production of Exts.B1 which is the FIR in Crime No.153/2004 of Kuravilangadu Police Station in connection with the accident in question and B2 which is the scene mahazar in that case, it can be said that the appellant has successfully discharged his burden to establish that the accident occurred solely due to the negligence of deceased Baiju. In the context and situation, **Sinitha** 's case (supra) again assumes relevance. After elaborately considering the issue, the Honourable Apex Court held that for avoiding the liability by establishing negligence or the other faults against the deceased or the victim concerned, cogent evidence has to be adduced by the insurer or the insured owner. The term 'cogent' means compelling or convincing. Therefore, the question is whether the said documents which are copies of FIR and the scene mahazar could be treated as a cogent evidence for the aforesaid purpose. We do not think that an elaborate discussion is required to decide the issue. We need only refer to paragraph 17 of the decision in **Sinitha's** case. A perusal of the said decision would reveal that the said question was also dealt M.A.C.A.No.2355/2009 11 with by the Honourable Apex Court in **Sinitha's** case, the Tribunal held that the rider Shijo was responsible for the accident placing reliance on copies of the First Information Report, postmortem certificate, scene mahazar, report of inspection of vehicle, inquest report and final report. After taking note of the said aspect, the Apex Court held that neither of those documents could constitute proof of “negligence” at the hands of Shijo, as the cause of accident. 11. It is also obvious that in that case in addition to the FIR and scene mahazar certain other documents were also produced by the respondents. Still, the Honourable Apex Court held that they alone would not constitute proof of negligence. In other words, they could not be considered as cogent evidence to establish any of the three faults including negligence to disclaim an applicant for compensation. When that be the position obtained from **Sinitha's** case (supra), it can only be held that by the mere production of Exts.B1 and B2 which are respectively the FIR in Crime No.153/2004 of Kuruvilangadu police station and the scene mahazar prepared in that case are insufficient to establish negligence on the part of the deceased Baiju so as to dis- M.A.C.A.No.2355/2009 12 entitle the respondents 3 to 5 herein, the petitioners therein, to get compensation for the death of Baiju in their application filed under Section 163 A of the Act. 12. The upshot of the above discussion is that there is absolutely no merit in the contention raised by the appellant that the Tribunal went wrong in holding that respondents 3 to 5 are entitled to get compensation and consequently in awarding compensation in their favour. In the result, this appeal is liable to fail and it is accordingly dismissed. ## **C.T.RAVIKUMAR, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv. 13/07/2016