K.A. Ibrahim v. The National Insurance Company and others

**C.R** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 29TH DAY OF NOVEMBER 2018 / 8TH AGRAHAYANA, 1940** ## **MACA.No. 3394 of 2014** **AGAINST THE AWARD IN OPMV 459/2010 of MACT MUVATTUPUZHA DATED 2701-2014** ## **APPELLANT/RESPONDENT NO.1 IN OP(MV):** **K.A.IBRAHIM** **S/O.ABDUL KARIM, KUNNUMPURATH HOUSE, 2/230,EDAVETTY P.O., KARIKODE, THODUPUZHA.** **BY ADVS. SRI.P.P.THAJUDEEN SMT.P.B.WAHIDA** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 2 & 3 IN OP(MV):** - **1 GIREESH K.R. S/O.RAMAKRISHNAN, KULATHINGAL HOUSE, KADAVOOR,KOTHAMANGALAM - 686 671.** - **2 NISSAR S/O.IBRAHIM, PUTHANAKAL HOUSE, CHILAVU P.O.685 588.** - **3 THE NATIONAL INSURANCE COMPANY THODUPUZHA - 685 584.** **ADDL** . **4 AUTHORISED OFFICER(DT(RR)) THALUK OFFICE,THODUPUZHA,IDUKKI DISTRICT-685584** - **ADDL.5** ## **VILLAGE OFFICER** **KARIKKODE VILLAGE,THODUPUZHA TALUK,IDUKKI DISTRICT685588 (ADDL R4 AND R5 ARE IMPLEADED AS PER ORDER DATED 17/3/2015 IN IA NO.854/2015).** ## **BY ADVS. SHRI.MATHEWS JACOB (SENIOR) ADVOCATE** ## **SMT.P.A.REZIYA SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 3394 of 2014 2 **==> picture [27 x 11] intentionally omitted <==** ## **JUDGMENT** This appeal is preferred against the award in O.P. (MV)No. 459/2010 of the Motor Accidents Claims Tribunal, Muvattupuzha by the owner of the vehicle. The first respondent in this case sustained injuries in a motor accident and the Motor Accidents Claims Tribunal awarded compensation of Rs.33,790/- and directed the insurer to satisfy the award and reimburse the amount from the owner. Being aggrieved by that the owner of the motor cycle KL38/2033 preferred this appeal. 2. It would be relevant and useful to refer the facts leading to the accident. The first appellant's case in the lower court was that on 21.02.2010 at 11.00 am, he was riding a motor cycle KL-2/J 164 through Kurukkanad - Cheppukulam public road, when he reached at Kampinipady, another motor cycle KL-38/2033 driven in a rash and negligent manner from the opposite side hit against his motor cycle. As a result, he sustained serious injuries. In the lower court, the rider of the offending motor cycle filed a written statement MACA.No. 3394 of 2014 3 and contended that he was not the rider of the vehicle, but one K.M. Abdul Karim, Kochuparambil House, Thattakuzha (RW2) was the rider at the time of accident. The Police foisted a false case against him and the insurer is liable to pay the compensation. The second respondent was set ex-parte. The insurer admitted the insurance of the offending vehicle, but contended that the rider was not holding a valid driving licence at the time of accident. 3. The claimant and insurer were satisfied with the award, they have not challenged this award by way of appeal, now they have not filed any cross objection. In this backdrop, it is not necessary to discuss the correctness of this finding with regard to the award amount. The claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A8. Respondents evidence consist of oral testimony of RW1 and RW2 and documentary evidence of Exts.B1 to B3. 4. In a claim petition filed under Section 166 of the Motor Vehicles Act, the claimant has to prove that the injuries were sustained due to the rash and negligent driving of a motor vehicle. Here, the injured produced Ext.A2, the F.I.R in Crime No.40/10 of Karimannoor Police Station. Ext.A3 is the MACA.No. 3394 of 2014 4 scene mahazar and Ext.A4 is the final report against the appellant. In the final report, it was stated that the accident occurred due to the rash and negligent driving. The claimant is entitled to get compensation only on proving that the accident occurred due to the rash and negligent driving by the opposite party. The final report shows that the injured was riding a motor cycle and when he reached at the place of occurrence, the offending vehicle hit against his vehicle, as a result, the first respondent in this appeal sustained injuries. The owner of the vehicle was examined as RW1 before the Tribunal, who contended that RW2 was the rider of a motor cycle, who was acquitted in the criminal case. There was no negligence from his side and he has no liability to pay compensation to the first respondent in this appeal. 5. The insurer contended that, RW1 in his evidence admitted that he was not holding a valid driving licence. The Karimannoor Police charge sheeted the rider of the vehicle and no contra evidence has been adduced in the Motor Accident Claims Tribunal to disprove the final report. There was violation of policy condition and the Tribunal rightly decided the case and awarded just amount as compensation MACA.No. 3394 of 2014 5 and no interference is necessary regarding the quantum. But the appellant contended that RW2 was the rider at the time of accident and the Police falsely foisted a case against him. The rider of the motor cycle was acquitted in the criminal case, therefore, the insurer is liable to pay the compensation. 6. It is now well settled that the term negligence is an omission to do something which a reasonable man, guided upon those consideration which ordinarily regulate the conduct of a human being would do or doing something which a prudent man would not do. If the claimant is guilty of an act or omission, which has essentially contributed to the accident which resulted in injury and damages, the matter comes within the concept of contributory negligence and Courts are required to apportion the loss between the parties as the facts and circumstances may justify. Therefore, negligence is omission of duty caused either by an omission of duty or by an omission to do something which a reasonable man is obliged to do. No absolute standard can be fixed and no mathematical formula can be laid down to measure the negligence. When a person is injured without any negligence on his part, but as a result of negligence on the part of the MACA.No. 3394 of 2014 6 other person or as a result of the combined negligence of two other persons, it is not a case of contributory negligence. 7. Now the question is whether the judgment of a Criminal prosecution arising out of a motor accident, acquitting the driver would be binding on the Motor Accident Claims Tribunal in a claim petition under Section 166 of the Motor Vehicles Act, 1988? In civil actions and criminal prosecutions arising out of the same motor accident involving bodily injury or death, the issues may not be identical, the nature of the onus may vary and the effect of evidence may not be the same. In some cases, the margin which separate a culpable negligence from a 'civil' negligence are out of focus or may even disappear altogether, but in most cases this distinction is clearly derivable. In criminal cases there must be mens rea or guilty mind, i.e., rashness or guilty mind of a degree which can be described as criminal negligence, mere carelessness is not enough. The principle of avoidance of liability when there is contributory negligence by the injured person is no defence in criminal law. But contributory negligence may be a good defence to a civil action. In addition to that the nature of the onus, the approach and MACA.No. 3394 of 2014 7 effect of the evidence in a criminal case is materially different from that in a civil action. In criminal cases, the prosecution must pursue the guilt of the accused beyond reasonable bounds of doubt. But in civil cases, mere preponderance of probability may be sufficient to fasten the defendant with liability. The reason is not that the Evidence Act prescribes different standards of proof in civil and criminal cases, but because under that Act the burden of proving the guilt of the accused beyond all manner of doubt always rests on the prosecution and never shifts on to the accused. This is not the case in civil cases. 8. The claimants are not entitled to get compensation unless they prove that the injury was sustained due to the rash and negligent driving of the opposite party or out of the use of a motor vehicle in a public place. Here, the specific contention is that the appellant was not riding the offending motor cycle. It is now well settled that the driver was acquitted in a criminal case is not a ground to reject the claim for compensation. The judgment in a criminal case is not a conclusive proof to disown compensation. The High Court of Punjab and Haryana, in _**Punjab Roadways v. Sohan Devi**_ MACA.No. 3394 of 2014 8 _**(1971 ACJ 185)**_ held that the criminal court's finding about the rash and negligent driving of the vehicle is not binding on the claims Tribunal. The Tribunal has its own discretion to fix the liability and decide compensation to the victims. The same principle was followed by High Court of Madras [in Para 13] in _**Rajammal v. Associated Transport Co. and another (1970 ACJ 44), Municipal Committee v. Ramesh Saggi and others (AIR 1970 P&H 137).**_ 9. It may be true that the evidence recorded in a criminal case may not be used for appreciating the negligence in a Motor Accidents case. Even though, the criminal court acquitted the appellant, that is not a ground to disown compensation to the victim in a motor accident. It will, therefore, be against the fundamental principles of justice and public policy to treat the judgments of the Criminal Court binding on a Motor Accidents Claims Tribunal, trying a claim arising out of a motor accident involving injury or death. The judgment of the Criminal Court can be used only for the limited purpose and to the extent indicated in S.43 of the Evidence Act. The principles of liability governing civil actions and criminal prosecutions based on negligence differ in two MACA.No. 3394 of 2014 9 material aspects. In a criminal case, the negligence which would justify a conviction must be culpable or of gross degree and not the negligence founded on a mere error of judgment or defect of intelligence. The degree of negligence which would justify a conviction must be something to the danger of human conduct. It must be something more than a mere omission or neglect of duty. Thus, law distinguishes between negligence which originates from a civil liability and the one from a criminal prosecution. The learned Tribunal rightly awarded the compensation and directed the insurer to reimburse the amount from the owner of the vehicle, which is only to be upheld. There is no merit in this appeal and it is dismissed accordingly. Sd/- **P.D.RAJAN JUDGE** bng/12.12.18