Geetha O.M. v. K. Radhakrishnan, Davis C.A. and The Oriental Insurance Company Limited

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.HARILAL** **WEDNESDAY, THE 20TH DAY OF JUNE 2018 / 30TH JYAISHTA, 1940 MACA.No. 461 of 2012(E)** **AGAINST THE AWARD DATED 23-12-2011 IN OPMV 936/2009 of M.A.C.T., OTTAPPALAM** **APPELLANT/PETITIONER:-** **-----------------------** **GEETHA O.M W/O. ASHOKAN, AGED 54, ODASSERY HOUSE CHERAI P.O., ERNAKULAM, NOW RESIDING AT GOVT. PRESS QUARTERS, 2 TYPE 1A, SHORANUR, OTTAPALAM TALUK, PALAKKAD DISTRICT.** **BY ADVS.SRI.MATHEWS K.PHILIP** **SMT.T.MANASY** ## **RESPONDENTS/RESPONDENTS:-** **-------------------------** **1. K.RADHAKRISHNAN,** - **AGED 42, S/O. K.KUMARAN, KANERI HOUSE, MAYANNUR P.O., THALAPPILLI TALUK, THRISSUR DISTRICT-679105.** **2. DAVIS C.A.,** - **CHIRAYATHIL HOUSE, CHETTUPUZHA P.O., THRISSUR-680621.** **3. THE ORIENTAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, JYOTHI SUPER MARKET, THODUPUZHA-685584.** - **BY SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K. HARILAL, J.** **= = = = = = = = = = = = = = = = =** ## **M.A.C.A. No.461 of 2012(E)** **- - - - - - - - - - - - - - - - - - - - - -** _Dated this the 20[th] day of June, 2018_ ## **J U D G M E N T** The appellant is the petitioner in O.P.(MV) No.936 of 2009 on the files of the Motor Accidents Claims Tribunal _(hereinafter referred to as 'the Tribunal'),_ Ottapalam. The aforesaid Original Petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained by her in a road traffic accident. 2. According to the appellant, on 11.06.2009, at about 15.30 hours, while she was riding on a scooter from Kulappully to Shoranur and when she reached near Mayilvahanam petrol pump, the offending bus, which was going forward in front of the scooter and driven by the 1[st] respondent in a rash and negligent manner stopped suddenly, without giving ## **M.A.C.A. No.461 of 2012(E)** ## **-: 2 :-** any signals and thereby the scooter ridden by the appellant, which was coming behind the bus hit the rear side of the bus and thereby the appellant thrown away from the scooter and sustained serious injuries. According to the appellant, the accident was caused by the rash and negligent driving of the bus by the 1[st] respondent and thereby respondents 1 and 2 are liable to pay compensation to her and the 3[rd] respondent Insurance Company is liable to indemnify the respondents 1 and 2 by paying compensation to her. She claimed `4,00,000/- as compensation under various heads of claim. 3. Respondents 1 and 2 remained absent and they were set _ex parte_ . The 3[rd] respondent filed a statement, denying all the averments including negligence attributed against the 1[st] respondent, the driver of the bus. But, admitted the coverage of the insurance policy issued by them to the 2[nd] ## **M.A.C.A. No.461 of 2012(E)** ## **-: 3 :-** respondent. Further, it is specifically contended that the accident has occurred due to the sole negligence of the appellant herself. So, she is not entitled to get compensation, as claimed by her. 4. On the aforesaid pleadings, the parties went on to trial and the appellant was examined as PW.1 and Exts.A1 to A17 were marked. The Tribunal has framed two issues. The first issue was, whether the appellant sustained injuries in an accident occurred due to the negligence of the 1[st] respondent, the driver of the bus? After trial, the Tribunal firstly considered the aforesaid issue. After considering the rival submissions and evidence on record, the Tribunal dismissed the petition on a finding that the accident was caused by the sole negligence from the appellant herself and thereby she is not entitled to get compensation from the respondents. The aforesaid finding, whereby the ## **M.A.C.A. No.461 of 2012(E)** ## **-: 4 :-** Tribunal dismissed the petition at the threshold itself, is assailed in this appeal. 5. Heard the learned counsel for the appellant and the learned Standing Counsel for the 3[rd] respondent Insurance Company. 6. Going by the impugned award, it is seen that after discussing the oral evidence of PW.1 and documentary evidence, the Tribunal arrived at a finding that the accident did not result due to the negligence of the 1[st] respondent, the driver of the offending bus and failure of the appellant to keep safe distance from the bus driven by the 1[st] respondent, which was going in front was the only reason for the accident. According to the Tribunal, since the accident did not occur due to the negligence of the 1[st] respondent, the respondents are not liable to compensate the appellant. Can the Tribunal be justified in dismissing the Original ## **M.A.C.A. No.461 of 2012(E)** ## **-: 5 :-** Petition at the threshold on the basis of the aforesaid findings? 7. The appellant had deposed that while she was riding on her scooter, the bus driven by the 1[st] respondent negligently overtook her vehicle and in that attempt, the bus hit on the right side of the scooter and she sustained fracture for her 6[th] rib and right hand. In support of the aforesaid case put up by the appellant, the appellant has produced Ext.A1 the copy of FIR in Crime No.231 of 2009, Ext.A2 Scene Mahzar, Ext.A4 A.M.V.I. report and Ext.A5 charge sheet. As per Ext.A1, the accident occurred as the driver of the bus had applied break suddenly without giving any signals. As per Ext.A2, the scene of occurrence is on the tarred road ½ metre west from the eastern tarred road end. It is not disputed that both the vehicles were proceeded from north to southern direction. So, both the **M.A.C.A. No.461 of 2012(E)** ## **-: 6 :-** vehicles were keeping their correct side. Ext.A5 is the copy of the charge sheet submitted by the police under Sections 279 and 338 of the Indian Penal Code against the 1[st] respondent and as per Ext.A5 the only reason for the accident was sudden stoppage of the bus by the 1[st] respondent, without giving signal which resulted in hitting the scooter ridden by the appellant, which was coming behind. Thus, the appellant has succeeded in proving a _prima facie_ case of negligence from the 1[st] respondent in causing the accident by the production of Exts.A1 to A5. 8. In the above context, the decision reported by this Court in _**India Assurance Co. Ltd. v. Pazhaniammal**_ [2011(3) KLT 648] assumes significance and relevance. _**“Held:** As a general rule it can safely be accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under S.166 of the Motor Vehicles Act. A system cannot feed itself on a regular_ **M.A.C.A. No.461 of 2012(E)** **-: 7 :-** _diet of distrust of the police. Prima facie, charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunals should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under S.166 of the Motor Vehicles Act. We mean to say that on production of such charge sheet the shifting of burden must take place. It is not as though we are not conscious of the dangers and pit falls involved in such an approach. But we feel that adoption and recognition of such practice would help to reduce the length of the long queue for justice before the Tribunals. The judicial recognition of the practice will help the Tribunals to ensure the optimum use of judicial time at their disposal for productive ventures. We do not intend to say that collusive charge sheets need be accepted. Wherever on the facts of a given case the Tribunals feel that the police charge sheet does not satisfy their judicial conscience, the Tribunals can record that the charge sheet cannot be accepted and can call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged negligence. In such a case, the issue of negligence must be decided on the other evidence, ignoring the charge sheet”._ [emphaziz supplied] 9. According to this decision, on production ## **M.A.C.A. No.461 of 2012(E)** ## **-: 8 :-** of charge sheet against the 1[st] respondent, shifting of burden to the contesting respondent must take place. In other words, the burden was heavy on the 3[rd] respondent to prove that the accident was caused by the negligence of the appellant herself and not by the negligence of the 1[st] respondent. Then, the question is, has the 3[rd] respondent succeeded in discharging the burden, which was shifted to them? Absolutely no evidence was adduced by the 3[rd] respondent to discharge the burden of proof. 10. But, Tribunal itself has drawn a wrong inference, from Exts.A1 FIR and A5 charge sheet and the evidence of PW.1, that the evidence itself would suggest about the uncontrollable speed of the vehicle ridden by the appellant and the appellant was riding the vehicle, without keeping safe distance from the offending bus, which was proceeding in front of the scooter. ## **M.A.C.A. No.461 of 2012(E)** ## **-: 9 :-** 11. It is needless to say, the findings of the Tribunal that the appellant was riding the scooter with high speed, without keeping the safe distance is a mere surmise only and the said inference is not supported by any kind of evidence from the 3[rd] respondent. This Court is of the view that the findings is only an inference without any basis. Suffice to say, the 3[rd] respondent has failed to discharge the burden of proof, which stood shifted to them. 12. In the above view, the entire findings whereby the Tribunal dismissed the Original Petition are set aside. The Original Petition is remitted back to the Tribunal for trial. The Tribunal is directed to dispose of the case on merits, after affording an opportunity to both parties to adduce evidence, untrammelled by the observations made above. The parties shall appear before the Tribunal ## **M.A.C.A. No.461 of 2012(E)** **-: 10 :-** on 13.08.2018. This Motor Accident Claims Appeal is disposed of accordingly. Sd/- **K. HARILAL, JUDGE** DST //True copy// P.A. To Judge