Leela v. Rajan and The Branch Manager, 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 K.P.JYOTHINDRANATH THURSDAY, THE 7TH DAY OF JULY 2016/16TH ASHADHA, 1938 MACA.No. 2566 of 2008 ( ) -------------------------AGAINST THE AWARD IN O.P(M.V)NO.567/2002 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA DATED 29-05-2008 ## APPELLANTS/PETITIONERS: ------------------------------ 1. LEELA, W/O.LATE R.GOPINATHAN, ANIL NIVAS, MADIYOORKUNI, KALPETTA P.O., VYTHIRI TALUK, WAYANAD DIST. 2. ANIL KUMAR, S/O.LATE R.GOPINANTHAN, - DO. DO. 3. GOWRIKUTTY AMMA, M/O.LATE R.GOPINATHAN, - DO. DO. R2 BY ADV.SMT.T.C.SOWMIAVATHY ADV. SRI.GRASHIOUS KURIAKOSE (SR.) ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. RAJAN, S/O.APPUTTY, KUNNAMANGALAMKUNNU, VIII/732, MEPPADI POST, VYTHIRI TALUK 2. THE BRANCH MANAGER, NEW INDIA ASSURANCE CO.LTD., M.G.T.BUILDING, KALPETTA. R2 BY ADV. SMT.T.C.SOWMIAVATHY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-07-2016, ALONG WITH MACA. 3067/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------- M.A.C.A.Nos.2566 of 2008 and 3067 of 2009 -------------------------------Dated 7[th] July, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The captioned appeals arise from claim petitions germinated from the same motor vehicle accident which is a collision between a Maruti Van and a Jeep, occurred on 31.8.2002. The former appeal is preferred against the judgment and award dated 29.5.2008 in O.P(M.V) No.567 of 2002 passed by the Motor Accidents Claims Tribunal, Kalpetta filed for compensation for the death of one Gopinathan arising out of the use of the said motor vehicles. The said claim petition was filed by his legal heirs viz., his widow, son and mother. The latter appeal is preferred by the owner of the Maruti Van against the judgment and award in O.P.(M.V)No.607 of 2002 filed seeking compensation for the damage caused to the said motor vehicle. The deceased Gopinathan was driving the Maruti Van bearing Reg.No.PY-01M/1950 from Meppadi to Kalpetta. When it reached near Palavayal, the Jeep bearing Reg.No.KL-11B/4957 insured with New India Assurance Company Limited, came from the opposite direction and hit against the Maruti Van. Consequently, Gopinathan sustained injuries and M.A.C.A.Nos.2566/2008 & 3067/2009 2 succumbed to the injuries from Medical Collge Hospital, Calicut. It is in the said circumstances that his legal heirs filed the aforementioned claim petition seeking a total compensation of 7,00,000/-. In the said₹ claim petition the first appellant was examined as PW1 and on the side of the appellants Exts.A1 to A10 were got marked. No oral or documentary evidence was adduced by the respondents. Evaluation of the evidence on record and the rival contentions culminated in an award dated 19.5.2005 for 6,25,000/- with interest and costs. The₹ insurance company then preferred an appeal against the said award as M.A.C.A.No.313 of 2006. This Court as per the award thereon confirmed the quantum of compensation granted thereunder but, remanded the matter solely for determining the question of negligent aspect in respect of the accident in question. The impugned award was passed in O.P.(M.V)No.567 of 2002 pursuant to the remand, on 29.5.2008. As per the award dated 29.5.2008 it was found that the accident involving the aforesaid vehicles occurred had on 31.8.2002 due to the contributory negligence of the drivers of the both the vehicles. Consequently, award was passed granting 50% of the amount of compensation assessed viz., for 3,12,500/- with interest at the rate₹ of 6% per annum from the date of petition till realisation. M.A.C.A.Nos.2566/2008 & 3067/2009 3 2. In O.P.(M.V)No.607 of 2002 filed claiming a compensation of 1,50,000/- for the damage caused to the Maruti Van₹ the claimant got himself examined as PW1 and one Zacharias was examined as PW2. On his side Exts.A1 to A6 were also got marked. No evidence whatsoever was adduced by the respondents therein. The Tribunal as per the impugned award dated 27.9.2008 assessed the compensation as 50,000/- and based on its finding in O.P.(M.V)₹ No.567 of 2002 that the accident occurred due to the contributory negligence of the drivers of both the vehicles involved in the accident an award was passed only for an amount of 25,000/- with interest at₹ the rate of 6% per annum from the date of petition till realisation. It is dissatisfied with the quantum of compensation thus granted and praying to set aside the aforesaid award to the extent of reduction of 50% of the assessed compensation and to award the entire compensation that the above appeals have been filed. Since the sole question involved in the captioned appeals is whether the finding of the Tribunal that the accident in question occurred due to the negligence of the drivers of both the vehicles could be sustained in the light of the evidence on record and the fate of the appeals depends on the answer to that question these appeals were jointly heard and they are being disposed of by this common judgment. M.A.C.A.Nos.2566/2008 & 3067/2009 4 3. We have heard the learned counsel for the appellants in both the appeals and also the learned counsel for second respondent. 4. We will firstly consider the tenability of the finding of the Tribunal on the question of negligence, as mentioned hereinbefore, based on which reduction of 50% of the assessed compensation was made in both the claim petitions. As noticed hereinbefore, the said finding was actually arrived at in the award dated 29.5.2008 in O.P. (M.V)No.567 of 2002 and O.P.(M.V)No.607 of 2002 was disposed of relying on the judgment in O.P.(M.V)No.567 of 2002 to the aforesaid effect, as per award dated 27.9.2008. 5. It is the common case that the Maruti Van bearing Reg.No.PY-01-M/1950 was driven, at the relevant point of time, by the deceased Gopinathan. According to the learned counsel, the accident occurred solely due to the negligence from the part of the first respondent, the driver of the Jeep bearing Reg.No.KL-11B 4754 (sic. KL 11B/4957). It is the further contention that the Tribunal went wrong in relying on Ext.A3 scene mahazar for the purpose of determining the question of negligence and for arriving at the conclusion that the M.A.C.A.Nos.2566/2008 & 3067/2009 5 deceased Gopinathan had also contributed the negligence that too, after discarding the oral testimonies of PWs 2 and 3. Though the Tribunal did not specifically hold that the accident occurred due to the composite negligence of the drivers of both the vehicles involved in the accident and apportioned the degree of negligence amongst them it was held that the accident occurred due to the contributory negligence of drivers of both the vehicles and consequently, awarded only 50% of the compensation assessed, in both the claim petitions. In such circumstances, it was further contended that as a matter of fact, the person who prepared Ext.A3 scene mahazar and the person who allegedly shown the place of occurrence viz., one Chandran to facilitate preparation of the scene mahazar were not examined before the Tribunal. In the said circumstances, according to the appellants, Ext.A3 ought not to have been relied on ignoring the further evidence consisting of the oral testimonies of the eye witnesses, PWs 2 and 3 and documentary evidence in Exts.A11 to A13 adduced by the appellants in the former appeal availing the opportunity granted by this Court as per the judgment in M.A.C.A.No.313 of 2016. In short, the contention of the appellants is that the Tribunal ought not to have taken Ext.A3 as sufficient evidence to outweigh the oral testimonies of PW2 and PW3 and additional documentary evidence in Exts.A11 to A13. It is M.A.C.A.Nos.2566/2008 & 3067/2009 6 submitted that the evidence of PW2 would reveal that the accident occurred solely due to the negligence on the part of the first respondent who was the driver of the Jeep. 6. The learned counsel appearing for the 2[nd] respondent submitted that the insurance coverage of the Jeep in question was not disputed but, contended that the Tribunal has correctly found that the deceased Gopinathan had also equally contributed to the accident. In short, according to the learned counsel appearing for the 2[nd] respondent, the accident occurred due to the contributory negligence of the drivers of both the vehicles and since the claim petition is moved by the legal heirs of the driver of the Maruti Van viz., one of the vehicle involved in the accident, they are entitled compensation only to the extent of the negligence from the part of the driver of the Jeep. Hence, it is submitted that no appellate interference is warranted. 7. In the context of the rival contentions, it is relevant to refer to the fact that the Tribunal had earlier disposed of O.P.(MV) No.567/2002 as per judgment and award dated 19.05.2005. Ext.A1, which is the copy of the FIR and Ext.A3 scene mahazar were also looked into by the Tribunal. However, no eye witnesses were then M.A.C.A.Nos.2566/2008 & 3067/2009 7 examined before the Tribunal. Evidently, the Tribunal as per judgment and award dated 19.05.2005 found that the accident occurred solely due to the negligence from the part of the first respondent, who was the driver cum owner of the jeep involved in the accident, based on the evidence then available on record. M.A.C.A.No.313/2006 was filed in the said circumstances by the Insurance Company challenging the said finding. Paragraph 6 of the impugned judgment and award itself would reveal that this court disposed of M.A.C.A.No.313/2006 taking note of the fact that the question of negligence was then decided solely relying on Ext.A1 FIR and Ext.A3 mahazar. It was found as unacceptable and unsustainable owing to the non-examination of the eye witnesses and then remanded the matter to decide only on the question of negligence after permitting both sides to adduce evidence in that regard. Pursuant to the remand of this case as per judgment in M.A.C.A.No.313/2006, on the side of the claimants/appellants herein PWs 2 and 3 were examined and three more documents were got marked as Exts.A11 to A13 in O.P. (MV)No.567/2002. Though going by the judgment in M.A.C.A.No.313 of 2006 respondents herein were also entitled to adduce evidence on the question of negligence, they did not adduce any further evidence. As a matter of fact, they had not adduced any evidence, either oral or documentary in O.P.(MV)No.567/2002 as also in O.P.(MV)No.607/2002. M.A.C.A.Nos.2566/2008 & 3067/2009 8 The Tribunal then, went on the question of negligence as has been directed by this Court in M.A.C.A.No.313/2006. 8. Evidently, the Tribunal scanned the oral testimonies of PWs 2 and 3 for that purpose. PW2 was also a passenger in the jeep driven by deceased Gopinathan. He deposed that on seeing the jeep coming from the opposite direction without dipping the head lights, the deceased Gopinathan swerved the Maruthi van towards the mud road to avert the accident. Going by his oral account, despite such an attempt from the part of deceased Gopinathan, the offending vehicle viz., the jeep, came to their side and hit on the maruthi van. He deposed that the accident occurred solely due to the negligence of the driver of the jeep, the first respondent. PW3 was also examined to prove the negligent aspect. He deposed that he was standing in the portico of his house that situates on the eastern side of the road in question and saw the maruthi van coming from the southern side and the jeep in question was coming from the northern side. According to him, he was in a pensive mood and on hearing the sound of collision of vehicles, he looked thitherwards and found the vehicles involved in the casualty. The Tribunal found that the compound wall of his house was having a height of 4 feet from the road level and the jeep was coming from the M.A.C.A.Nos.2566/2008 & 3067/2009 9 eastern side. On analysing the evidence of PW3, the Tribunal found that in the strict sense, he could not be said to be a witness to the occurrence and that his own version would reveal that he had not actually seen the occurrence. The Tribunal virtually discarded the evidence of PW3, the eye witness based on the facts revealed from Ext.A3 scene mahazar. The Tribunal elaborately dealt with the details in Ext.A3 scene mahazar the place of occurrence and also considered the oral testimony of PW2. The tenor of the discussion in that regard in the impugned award would reveal that the Tribunal took the version in Ext.P3 as gospel truth as relates the place of occurrence and considered the credibility of the version of PW2 on its basis. We are of the considered view that in the light of the certain other indisputable position obtained from the evidence on record, the Tribunal ought not have relied heavily on Ext.A3 scene mahazar and discredit the version of PW2 while arriving at a conclusion regarding negligent aspect. Evidently, the officer who prepared Ext.A3 scene mahazar was not examined before the Tribunal. Going by the recital in Ext.A3, the alleged place of occurrence was shown to the officer who prepared Ext.A3 was by one Chandran and that person was also not examined before the Tribunal. It is pertinent to note that going by Ext.A11 charge sheet, the said Chandran was not an eye witness. At any rate, M.A.C.A.Nos.2566/2008 & 3067/2009 10 he was not cited as an eye witness as per the same. In such circumstances, it can only be taken that the said Chandran who had shown the place of occurrence to the officer who prepared Ext.P3 scene mahazar had not actually witnessed the incident. 9. As noticed herein before, PW2 who was travelling along with the deceased in the Maruthi van driven by the deceased Gopinathan deposed to the effect that on seeing the jeep coming from the opposite direction without dipping the head lights, the deceased Gopinathan swerved the vehicle and took it beyond the tarred road in a bid to avert the accident. During the cross examination, the respondents could not shatter the evidence of PW2 or to elicit anything to establish that his evidence is untrustworthy. We have already found that besides the non-examination of the officer who prepared Ext.P3 scene mahazar and Chandran, the person who had allegedly shown the alleged place of occurrence to the officer who prepared the same there is nothing on record, atleast, to establish that the said Chandran was an eye witness to the occurrence to give credibility to the contentions of the respondents founded on Ext.P3 scene mahazar. In such circumstances, we are of the view that the Tribunal was not at all justified, rather went wrong in relying on Ext.A3 scene mahazar ignoring oral testimony of PW2, to M.A.C.A.Nos.2566/2008 & 3067/2009 11 decide on the question of negligence. Another aspect also assumes relevance in that regard. As noticed hereinbefore, even after granting liberty to the respondents to adduce evidence on that point by this court as per judgment in M.A.C.A.No.313/2006 the respondents did not avail the opportunity and adduce any further evidence to prove that the accident occurred not solely on account of the negligence from the part of the first respondent who was driving the jeep or that deceased Gopinathan has also contributed to the accident. As a matter of fact, the respondents have not adduced any evidence, either oral or documentary, to establish their case on the question of negligence. In such circumstances, it is ununderstandable as to how the Tribunal could have treated the mere narration in Ext.A3 scene mahazar sufficient to outweigh the oral evidence of PW2 to the effect that the accident occurred due to the sole negligence on the part of the first respondent who was driving the jeep at the time of the accident. As stated earlier in O.P.(MV)No.567/2002 an award was passed on 19.5.2005 for Rs.6,25,000/- by the Tribunal and as per the judgment in M.A.C.A.No.313/2006 preferred against the said award the fixation of the quantum of compensation was upheld and it was remanded only for deciding the question of negligence aspect. Evidently, as per the award dated 19.5.2005 negligence was found exclusively on the side of the M.A.C.A.Nos.2566/2008 & 3067/2009 12 first respondent viz., the driver of the jeep. Though, the parties were also allowed to adduce evidence in that regard after the remand, no further evidence was adduced by the respondents and on the side of the appellants in O.P.(MV)No.567/2002 two more witnesses were examined and three more documents were marked, including Ext.A11 charge sheet filed in the crime registered in connection with the accident in question. It is to be noted there is absolute absence of any discussion regarding Ext.A11 in the impugned judgment. It is nobody's case that it contained 'A' charge and 'B' charge and besides the first respondent the deceased Gopinathan was also charge sheeted in that crime. In the light of the decisions in **New India Assurance Co. Ltd. v. Pazhaniammal reported in 2011 (3) KLT 648** and in **Fazal Mohammed v. Rasheed reported in 2015 (2) KLT 266** there cannot be any doubt with respect to the position that in a claim petition filed under Section 166 of the Motor Vehicles Act production of final report filed in the crime registered in connection with the accident concerned it will be a sufficient prima facie evidence regarding negligence. Certainly, it could be rebutted by the respondents. In this case none of the respondents tendered any evidence even after the remand of the case. In view of the foregoing reasons the finding of the Tribunal that the accident occurred on 31.8.2002 that led to the filing of M.A.C.A.Nos.2566/2008 & 3067/2009 13 the aforementioned claim petitions can only be taken as one occurred due to the sole negligence of the first respondent who was then driving the jeep involved in the accident. Accordingly, the finding of the Tribunal that the accident occurred due to the composite negligence of the driver of the jeep ( the first respondent) and the deceased Gopinathan, the driver of the Maruthi van, is vacated. Further, it is held that the accident occurred due to the negligent driving of the jeep in question by the first respondent. As noticed hereinbefore, regarding the insurance coverage of the offending vehicle viz., the jeep there is no dispute and admittedly, it was having valid insurance coverage at the time of the accident. Since the first respondent himself is also the owner of the said offending vehicle the third respondent is liable to indemnify the first respondent. In view of the nature of the challenge and also the relief sought for, in these appeals, we have already observed that the fate of these appeals depends upon the sustainability of the finding of the Tribunal on the question of negligence. Therefore, when once the question of negligence is found as above the finding of the Tribunal to the effect that appellants herein/the petitioners before the Tribunal, are entitled to get only half of the amount of compensation assessed is liable to be interfered with and consequently it is to be held that the appellants are entitled to get the entire amount M.A.C.A.Nos.2566/2008 & 3067/2009 14 of compensation as assessed by the Tribunal. It is ordered accordingly, in both the appeals. 10. In M.A.C.A.No. 2566/2008 virtually, the case of the appellants is to the effect that the entire amount of Rs.6,25,000/- ought to have been granted as compensation and no amount ought to have been deducted from especially without apportioning the contributory negligence on the part of the deceased. In view of our findings as above the appellants in M.A.C.A.No.2566 of 2008 are entitled to get the entire amount of Rs.6,25,000/- assessed as compensation by the Tribunal. In M.A.C.A.No.3067/2009 though the appellant contended that the Tribunal ought to have granted the entire amount of Rs.1,50,000/- claimed as compensation no sustainable ground was brought out by the appellant. It is a fact that no final report after the repair, was produced and proved by the appellant. The surveyor who prepared Ext.A3 Insurance Survey report was also not examined to prove the same. All these aspects were duly taken note of by the Tribunal while assessing the compensation as Rs.50,000/-. But, as already stated, owing to the finding that the driver of the Maruthi van had also contributed to the accident only 50% of the amount assessed was awarded as compensation. In view of our findings the appellant in M.A.C.A.Nos.2566/2008 & 3067/2009 15 M.A.C.A.No.3067/2009 is also entitled to get entire amount of compensation assessed. 11. In the result, M.A.C.A.No.2566/2008 is allowed. The appellants are entitled to get the balance amount of Rs.3,12,500/deducted from the assessed compensation as well, with the same rate of interest as granted by the Tribunal for the awarded amount of Rs.3,12,500/- viz., 6% per annum from the date of petition till realization. Accordingly, the second respondent is directed to deposit the aforesaid amount of Rs.3,12,500/- with interest at the rate of 6%, as aforesaid, within two months from the date of receipt of copy of this judgment. M.A.C.A.No.3067/2009 is allowed in part. The appellant is entitled to get the balance amount of Rs.25,000/- deducted from the assessed compensation as well with same rate of interest granted by the Tribunal for the awarded amount of Rs.25,000/- viz., 6% per annum from the date of petition till realization. Accordingly, the second respondent is directed to deposit the amount of Rs.25,000/- with interest at the rate of 6% within a period of two months from the date of receipt of a copy of this judgment. In the event of failure to deposit M.A.C.A.Nos.2566/2008 & 3067/2009 16 the amount ordered to be paid towards compensation within the above stipulated time, the amount remaining to be paid in both the cases will carry interest @ 7% per annum from the date of petition till realization. There will be no order as to costs in both the cases. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS/sv