George Sebastian v. Joseph Mathai, Manu K.R. and National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE 28TH DAY OF SEPTEMBER 2017/6TH ASWINA, 1939 MACA.No. 1541 of 2017 () ------------------------AGAINST THE AWARD IN OPMV 984/2015 of MACT PALA DATED 01-04-2017 ## APPELLANT(S)/PETITIONER: ----------------------- GEORGE SEBASTIAN, S/O.SEBASTIAN KAROTTUKOIKKALETTU HOUSE KURAVILANGADU P.O., KOTTAYAM-686633 ## RESPONDENTS/RESPONDENTS ---------------------------------- ## 1. JOSEPH MATHAI, S/O. MATHAI, MUDAVANAL HOUSE, PAKALOMATTAM P.O., KURAVILANGADU, KOTTAYAM - 686 633. 2. MANU K.R., S/O. KUNJ, KODUTHALAVALLY HOUSE, NAZERATH HILL P.O., KURAVILANGADU, KOTTAYAM - 686 633. 3. NATIONAL INSURANCE CO.LTD., REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, KOTTAYAM - 686 001. BY ADVS.SRI.ROY CHACKO SRI.K.C.VINCENT R3 BY ADV. SMT.DEEPA GEORGE R1,R2 BY ADV. SRI.P.C.HARIDAS R3 BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANU SIVARAMAN, JJ. ========================== M.A.C.A. No.1541 OF 2017 ==========================** Dated this the 28[th] day of September, 2017 ## **JUDGMENT** _Ravikumar, J._ The unsuccessful claimant in O.P.(MV) No.984/2015 on the files of the Motor Accidents Claims Tribunal, Pala is before us challenging the dismissal of the claim petition. He filed the claim petition under section 166 of the Motor Vehicles Act seeking compensation for the injuries sustained by him in a motor vehicle accident, which occurred on 9.5.2015, involving the scooter bearing Reg.No.KL-67-2211 and the goods autorickshaw bearing Reg.No.KL35/D-7739. He was the scooterist. In the claim petition, it was averred that he was riding the scooter through EttumanoorKoothattukulam public road and at about 12 noon, when he reached near Kozha, the aforesaid autorickshaw driven rashly and negligently by the second respondent hit on the rear side of his scooter. He **M.A.C.A.1541/2017** 2 sustained serious injuries and was treated at HGM Hospital, Muttuchira. In the claim petition, the appellant had specifically averred that the accident had occurred solely due to the negligence on the part of the second respondent, the driver of the autorickshaw. Ext.A4 is the copy of the Accident Register Cum Wound Certificate. Ext.A9 is the treatment certificate issued from GHM Hospital, Muttuchira. Ext.A10 is the medical bills and Ext.A12 is the discharge summary issued from said hospital. 2. Though respondents 1 and 2 entered appearance before the Tribunal, they did not file any written statement. The third respondent filed written statement. No oral evidence was adduced by both sides. After appreciating the evidence on record consisting of Exts.A1 to A12 on the side of the appellant, the Tribunal arrived at the conclusion that the appellant had failed to prove that the accident occurred due to the rash and negligent driving of the second respondent. Consequent to such conclusion, the Tribunal held that the application is a fraudulent one and based on the answer to the said issue framed as issue No.1, without deciding other issues formulated **M.A.C.A.1541/2017** 3 for consideration, the Tribunal dismissed the claim petition with cost. It is in the said circumstances that the injured petitioner filed the captioned appeal. 3. Heard. 4. Doctrine of precedents cannot be ignored by the Tribunals constituted under the Motor Vehicles Act. In an application filed under section 166 of the M.V Act, in terms of the provisions under section 168, the Tribunal is bound to conduct an enquiry into the claim and pass an award determining the amount of compensation which appears to be just and satisfying the person/persons to whom compensation should be paid. In the case on hand, it is to be noted that the specific allegation of the appellant/petitioner was that he sustained injuries owing to the negligent driving of the goods autorickshaw by the second respondent. First respondent is the owner of the said autorickshaw and the third respondent is its insurer. Paragraph 3 of the impugned judgment would reveal that respondents 1 and 2 viz., the owner and driver of the autorickshaw entered appearance. However, they had not chosen to file written statements. **M.A.C.A.1541/2017** 4 The third respondent insurer filed written statement admitting the accident as also the policy. True that in the written statement, the third respondent had taken up a contention that the autorickshaw was being driven by the brother of the second respondent namely one Arun and he had no driving license and further that it is based on the outcome of collusion that in place of Arun, the second respondent was substituted. The impugned judgment would reveal that no oral evidence was adduced by both sides and at the same time, it would reveal that on the side of the appellant/petitioner, Exts.A1 to A12 were got marked. Ext.A1 is the copy of the FIR in crime No.499 of 2015 registered at Kuravilangad Police Station in connection with the accident in question. Ext.A7 is the copy of the final report laid before the court concerned under section 173(2) of the Code of Criminal Procedure. A scanning of the impugned judgment would reveal that there is no detailed discussion of the documentary evidence adduced by the petitioner. It is also relevant to note that even after entering appearance, respondents 1 and 2 did not choose to file written statement. In the contextual situation, it is relevant to refer to the **M.A.C.A.1541/2017** 5 decision of the Division Bench of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal** reported in **2011 (3) KLT 648** and the decision in **National Insurance Co.** v. **Nirmala Balachandran [ 2012 (3) KLJ 214]** . The ratio of the said decisions is to the effect that in a claim for compensation filed under section 166 M.V Act, production of a police charge sheet in the crime registered in connection with the accident in question is a prima facie sufficient evidence of negligence. Needless to say that when the production of the final report registered in connection with the accident in question if produced by the claimant, in the light of the decisions referred (supra), it has to be treated as prima facie sufficient evidence. In this case, the respondents 1 and 2 even after entering appearance had not chosen to file written statement controverting the specific contentions taken up in the claim petition and they also, did not let in any rebuttal evidence. As noticed hereinbefore, in the claim petition, it was specifically averred by the appellant that the cause of the accident is the negligence on the part of the second respondent who was driving the autorickshaw at the relevant point of time. Evidently, it is to **M.A.C.A.1541/2017** 6 establish that he produced Ext.A7 final report and in the light of the decisions referred (supra), if that document can be taken as prima facie sufficient evidence of negligence, in the absence of any rebuttal evidence on the side of the respondents, the Tribunal ought to have arrived at the finding that the accident in question had occurred due to the negligence on the part of the second respondent. There can be little doubt with respect to the position that pleadings cannot take the place of proof. True that the third respondent insurer of the offending vehicle had taken up a contention that at the time of the accident, the offending vehicle was being driven by one Arun who is the brother of the second respondent. Despite taking up such contention, the third respondent had not adduced any evidence to prove the same. The Tribunal virtually accepted and acted upon the said pleading which was not proved before it. 5. In the contextual situation, we are also constrained to refer to Order 14 Rule 2 of the Civil Procedure Code. The provisions under Rule 395 of the Kerala Motor Vehicles Rules, 1989 (for short 'the Rules') would reveal that a Claims Tribunal is bound to follow the **M.A.C.A.1541/2017** 7 specific provisions of the Code specifically mentioned therein and it shall be applied as far as possible to the proceedings before the Claims Tribunal. According to us, that would not disempower the Tribunal from following other procedures under the Code. Rule 379 of the Rules assumes relevance in this context. It reads thus:- **379. Framing of issues--** (1) After perusing the application and the written statements, if any, filed under Rule 378 and also the result of the examination if any, under the same rule, of the parties, the Claims Tribunal shall frame issues before the evidence is recorded. (2) The Claims Tribunal may at any time before pronouncing judgment amend or delete issues already framed or frame additional issues on such terms as it thinks fit. 6. It is evident from Rule 379 that after perusing the application and the written statement filed, if any, it is incumbent on the Tribunal to frame issues before evidence is recorded. The Tribunal is bound to follow procedures which are not in consistent with the principles of natural justice. In this context, the question is whether it is conducive to follow the provisions under Order 14 Rule 2 while passing a judgment though the provisions under Order 14 Rule 2 was not specifically made applicable to a proceeding before the Tribunal in **M.A.C.A.1541/2017** 8 terms of section Rule 395 of the Rules. Order 14 Rule 2 reads thus:- “ **2.Court to pronounce judgment on all issues--** (1)Notwithstanding that a case may be disposed of on preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. 7. It is evident from the afore-extracted provision that in a case where a matter could not be disposed of based on a preliminary issue falling under sub-rule 2 of Rule 2 notwithstanding the fact that the case could be disposed of, on a preliminary issue judgment is to be pronounced on all issues. Following the said procedures contemplated under Rule 2 of Order 14 would certainly enable the appellate court to consider the appeal on merits if the appellate court on considering the entire aspects is inclined to reverse the dismissal of **M.A.C.A.1541/2017** 9 the claim petition based on the answer to that preliminary issue, by the Tribunal. It is only conducive to follow the procedures under Order 14 Rule 2 lest even in a case where the Claims Tribunal dismisses the claim only on a preliminary issue and without pronouncing judgment on all issues, even after interfering with the judgment and reversing the judgment, the appellate court may have to remand the mater for fresh consideration. 8. In this case, the discussions made hereinbefore would reveal that it is the failure on the part of the Tribunal in following the dictum laid down in **Pazhaniammal** 's case and **Nirmala Balachandran** 's case that culminated in the finding that the appellant/claimant had failed to establish negligence on the part of the second respondent. Had the binding decisions were properly followed, such a finding/conclusion could not have been entered into by the Tribunal. After following the procedure under Order 14 Rule 2 CPC, if all the issues were answered while pronouncing the judgment, we would not have been disabled from pronouncing the judgment in the appeal on merits. Since the Tribunal had not gone into the evidence before it **M.A.C.A.1541/2017** 10 and adjudicated the compensation otherwise payable, we have no option but to remit the matter. In the result, the finding of the Tribunal that the appellant had failed to prove negligence on the part of the second respondent as the cause of the accident is vacated. It is also relevant to note that the third respondent company, which alone contested the claim petition, did not dispute the accident involving the vehicle insured with it and also the existence of valid insurance coverage for the said vehicle, at the time of the accident. Needless to say that the Tribunal shall adjudicate the compensation payable and all the other relevant issues based on the evidence on record. For such fresh consideration, this appeal is remanded. Appeal is disposed of accordingly. **Sd/-** ## **C.T. RAVIKUMAR (JUDGE)** **Sd/ANU SIVARAMAN (JUDGE)** **spc/** **M.A.C.A.1541/2017** 11 **C.T. RAVIKUMAR, J.** **M.A.C.A.1541/2017** 12 **JUDGMENT September, 2010**