KHADEEJA, NAVAS, BINDU, ANEESH, SHIJU v. ISMAIL and THE NEW INDIA ASSURANCE CO. LTD.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 22ND DAY OF MAY 2017/1ST JYAISHTA, 1939 MACA.No. 3082 of 2008 ( ) -------------------------AGAINST THE AWARD IN O.P(M.V)NO.1341/2003 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 23-04-2008 APPELLANT(S)/PETITIONERS IN OP(MV): -------------------------------------------- 1. KHADEEJA, AGED 52 YEARS, W/O.LATE MUHAMMED SHAREEF, RESIDING AT NABS, PANIKKAMADAM PARAMBU, P.O.ARAKKINAR, MATHOTTAM, KOZHIKODE. 2. NAVAS, AGED 34 YEARS, -DO- -DO- 3. BINDU, AGED 30 YEARS, -DO- -DO- 4. ANEESH, AGED 29 YEARS, -DO- -DO- 5. SHIJU, AGED 28 YEARS, -DO- -DO- BY ADV. SRI.AVM.SALAHUDIN RESPONDENTS/RESPONDENTS IN OP(MV): ----------------------------------------------- 1. ISMAIL, S/O.MOHAMMED E, AGED 30 YEARS, RESIDING AT PRASLIYA MANZIL, VADAKKEPARAMBA, CHALIL, P.O. PUTHIYANGADI, KOZHIKODE. 2. THE NEW INDIA ASSURANCE CO.LTD., BRANCH OFFICE, TRIPURI BUILDING, EAST NADAKKAVU, KOZHIKODE. R2 BY ADV. SRI.M.JACOB MURICKAN R1 BY ADV. SRI.S.K.KRISHNA KUMAR R1 BY ADV. SRI.E.G.GORDEN R1 BY ADV. SRI.S.K.PREMJITH MENON R1 BY ADV. SMT.D.MANEKSHA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ. ---------------------------------M.A.C.A.No.3082 of 2008** **-------------------------------Dated this the 22[nd] day of May, 2017** ## **JUDGMENT** ## **Anil K. Narendran, J.** This appeal arises out of the award passed by the Principal Motor Accident Claims Tribunal, Kozhikode dated 23.4.2008 in O.P.(MV) No.1341/2003. The said claim petition arises out of a motor vehicle accident alleged to have occurred on 11.4.2003 at 11.30 p.m. While the deceased Muhammed Shereef, the husband of the first appellant and father of appellants 2 to 5, who was walking along the side of Kozhikode-Ramanattukara NH Road was hit by a motor cycle bearing Registration No.KL-11/N-6816 owned by the first respondent herein and insured with the second respondent. The deceased sustained fatal injuries, who succumbed to the injuries on 12.4.2003. Alleging that the accident occurred due to the rash and negligent riding of the motor cycle by its rider, claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 claiming a total compensation of 2,00,000/-₹ under different heads. 2. The second respondent insurer filed a written statement admitting the insurance coverage of the offending motor cycle. The second respondent contended that the rider of the motor cycle is not M.A.C.A.No.3082/2008 2 made a party to the proceedings and there is collusion between the claimants and the first respondent owner and as the accident occurred due to the sole negligence of the deceased, the second respondent insurer has no liability to pay compensation. 3. Before the Tribunal, the postmortem certificate and the family membership certificate were marked as Exts.A1 and A2 on the side of the appellants/claimants. Both sides have not chosen to adduce any oral evidence. After the evidence was closed and the claim petition was listed for passing the award, the claimants filed I.A.No.1749/2007 for reopening the evidence. The said application was allowed and the claimants were granted time to produce further evidence. However, the claimants failed to produce any further evidence. No steps have been taken to implead the rider of the motorcycle and to prove his negligence. 4. From the photocopy of the FIR seen in the files, which is attested by the learned counsel for the claimants, the Tribunal found that the FIR is lodged on the basis of a statement made by one Mustafa, who had no occasion to witness the accident. The claimants have also not chosen to produce the charge. Therefore, in the absence any evidence to prove negligence on the side of the rider of the motorcycle, the Tribunal dismissed the claim petition holding that the M.A.C.A.No.3082/2008 3 claimants have not succeeded in proving their claim under Section 166 of the Act. 5. Feeling aggrieved by the dismissal of the claim petition, the appellants/claimants are before this Court in this appeal. 6. We heard the arguments of learned counsel for the appellants/claimants and also the learned counsel for the second respondent insurer. 7. A reading of the impugned award passed by the Tribunal would show that, the Tribunal dismissed the claim petition filed by the appellants/claimants under Section 166 of the Act in the absence any evidence to prove negligence on the side of the rider of the motorcycle. Though the Tribunal granted an opportunity to the appellants/claimants to produce further evidence by allowing I.A.No.1749/2007 filed for reopening the evidence, they failed to take advantage of that opportunity to produce any further evidence. From the photocopy of the FIR seen in the files, the Tribunal found that the FIR is seen lodged on the basis of a statement made by one Mustafa, who had no occasion to witness the accident. Since the appellants/claimants failed to prove their claim under Section 166 of the Act, the Tribunal dismissed the claim petition by the impugned award. 8. Along with a memo filed by the learned counsel for the M.A.C.A.No.3082/2008 4 appellants/claimants a photocopy of Page No.58 of the case diary attested by the Sub Inspector of Police, City Traffic Police Station, Kozhikode has been produced before this Court as the 'charge sheet' of the crime registered in connection with the motor accident which occurred on 11.4.2003. As discernible from the said document, the police submitted FIR, Inquest Report and Scene Mahazar before the Magistrate Court on 13.4.2003 and a detailed report with the name and address of the person arrayed as accused before Court on 29.4.2003. 9. In **New India Assurance Co. Ltd., v. Pazhaniammal and others (2011 (3) KLT 648)** a Division Bench of this Court held that, 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 Section 166 of the Motor Vehicles Act. 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 Section 166 of the M.A.C.A.No.3082/2008 5 Motor Vehicles Act. 10. For reasons best known to the appellants/claimants, they have not chosen to produce a certified copy of the charge sheet along with its enclosures. Instead of producing a certified copy of the charge sheet obtained from the Magistrate Court along with an application filed under Order XLI Rule 27 of the Code of Civil Procedure, 1908 a photocopy of Page No.58 of the case diary attested by the Sub Inspector of Police has been produced before this Court along with a memo filed by the learned counsel for the appellants/claimants. Therefore, the said document cannot be relied on for any purpose, especially when the Tribunal in the impugned award noted that the FIR is seen lodged on the basis of a statement made by one Mustafa, who had no occasion to witness the accident. 11. It is trite law that in a claim petition relating to a motor accident claim, the claimants are not required to prove the case as it is required to be done in a criminal trial. The claimants are merely to establish their case on the touchstone of preponderance of probability and that standard of proof beyond reasonable doubt could not be insisted upon. Though the standard of proof required in a claim before the Tribunal is much below than what is required in a criminal case as well as in a civil case, there must be some reliable materials regarding M.A.C.A.No.3082/2008 6 the factum of accident involving negligence on the part of the driver of the offending vehicle, on the basis of which the Tribunal can arrive at or decide things necessary to be decided in such a claim petition, before awarding the compensation. 12. It is also trite law that in a claim made under Section 166 of the Motor Vehicles Act, for fixing liability on the respondents, who are the owner, driver and insurer of the offending vehicle, it is imperative for the claimants to prove that the accident was caused by the negligence of the driver or the owner of that vehicle. Thus, negligence on the part of the driver or owner of the offending vehicle is a prime consideration in a claim under Section 166 of the Act. Where the pleadings and evidence on record are absolutely silent on this crucial aspect of the matter, then the claim under Section 166 of the Act would necessarily fail. 13. In **Oriental Insurance Company Ltd. v. Meena Variyal [(2007) 5 SCC 428]** the Apex Court held that, the victim of a motor accident or his dependents have an option either to proceed under Section 166 of the Motor Vehicles Act or under Section 163A of the said Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if M.A.C.A.No.3082/2008 7 they proceed under Section 163A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his dependents to establish any negligence or default on the part of the owner or driver of that vehicle. 14. One of the contentions raised in the written statement filed by the third respondent insurer is that the rider of the offending motor cycle is not made a party to the proceedings. In **Oriental Insurance Co. Ltd. v. Shobhana Omanakuttan and others [ILR 2015 (3) Ker. 103]** a Division Bench of this Court held that, to hold that the owner of the vehicle is vicariously liable, necessarily a finding will have to be rendered about the negligence of his servant for which it is not imperative to implead the driver as held by the Apex Court in **Machindranath Kernath Kasar v. D.S. Mylarappa [(2008) 13 SCC** **198]** and the entire proceedings will not be vitiated as the owner is a joint tortfeasor. However, when the driver is not personally impleaded as a party, no award can be made against him. 15. Thus, an owner of a motor vehicle can be made vicariously liable for the acts of his driver, only by proving negligence on the part of the driver. When negligence on the part of the driver or owner of the offending vehicle is a prime consideration in a claim filed under Section 166 of the Motor Vehicles Act, the claimants have necessarily to take M.A.C.A.No.3082/2008 8 upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. Where the pleadings and evidence on record are absolutely silent on this crucial aspect of the matter, then the claim petition under Section 166 of the Act would necessarily fail. In that view of the matter, the Tribunal cannot be found fault with in dismissing the claim petition filed by the appellants/claimants on the ground that they failed to prove their claim under Section 166 of the Act. In the result, this appeal fails and the same is accordingly dismissed. No order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **ANIL K. NARENDRAN Judge** TKS