MACA No. 1451 of 2012

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH WEDNESDAY, THE 29TH DAY OF JUNE 2016 / 8TH ASHADHA, 1938 **MACA.No. 1451 of 2012** AGAINST THE AWARD IN O.P(M.V)No.99/2008 of MOTOR ACCIDENTS CLAIMS TRIBUNAL,KALPETTA DATED 09-11-2011 **APPELLANT** /2ND RESPONDENT IN OPMV.NO.99/08. THE BRANCH MANAGER NATIONAL INSURANCE COMPANY, KALPANA SHOPPING COMPLEX, MAIN ROAD, KALPETTA, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. BY ADV.SRI.LAL GEORGE **RESPONDENTS** /PETITIONERS 1 TO 5 AND 1ST RESPONDENT IN OPMV NO.99/08.: 1. SINI REJI, AGED 28 YEARS, W/O.REJI, VALIYA VALAPPIL HOUSE, THOMATTUCHAL, AMSOM, DESOM, NARIKUNDU, CHEENGHAVELLOM, S.BATHERY TALUK-673 592. 2. AKSHAY, S/O.REJI, AGED 12 YEARS DOB.20/10/2000, VALIYA VALAPPIL HOUSE, THOMATTUCHAL, AMSOM, DESOM, NARIKUNDU, CHEENGHAVELLOM, S.BATHERY TALUK-673 592 REPRESENTED BY THE 1ST RESPONDENT MOTHER. 3. AMISHA, D/O.REJI, AGED 7 YEARS, D.O.B. 16/11/2005, VALIYA VALAPPIL HOUSE, THOMATTUCHAL, AMSOM, DESOM, NARIKUNDU, CHEENGHAVELLOM, S.BATHERY TALUK-673 592 REPRESENTED BY THE 1ST RESPONDENT MOTHER. 4. RAGHAVAN, 69 YEARS VALIYA VALAPPIL HOUSE, THOMATTUCHAL, AMSOM DESOM, NARIKUNDU, CHEENGHAVELLOM, S.BATHERY TALUK-673 592. 5. SARADHA, AGED 64 YEARS VALIYA VALAPPIL HOUSE, THOMATTUCHAL, AMSOM, DESOM, NARIKUNDU, CHEENGHAVELLOM, S.BATHERY TALUK-673 592. 6. P.MUHAMMAD S/O.MOIDEEN KOYA, AGE NOT KNOWN, POOLAKKAPPARAMBIL HOUSE, AMBALAVAYAL POST, S.BATHERY TALUK, WAYANAD - 673 593. R1 TO 5 BY ADV. SRI.ABRAHAM P.GEORGE R1 TO 5 BY ADV. SMT.M.SANTHY R6 BY ADV. SMT.PRIYA ELIZABETH BABU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** -----------------------------------M.A.C.A.No.1451 of 2012 ------------------------------------Dated 29[th] June, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The point that crops for consideration is whether the legal heirs of a driver, who succumbed to the injuries sustained in a motor vehicle accident, when there is no other vehicle involved in the accident, can succeed in an application under Section 163 A of the Motor Vehicles Act, 1988 ( for short`M.V. Act'). The said question and allied questions arise for consideration on the following factual background :- 2. Respondents 1 to 5 herein filed O.P.(M.V)No.99/2008 under Section 163 A of the M.V. Act claiming a compensation of Rs.8 lakhs for the death of one Reji. The deceased Reji is the husband of the first respondent, the father of respondents 2 and 3 and the son of respondents 4 and 5. In the claim petition they stated that he was working under the first respondent before the Tribunal i.e, the sixth respondent herein as a driver of the jeep bearing Reg.No. KL-7/AF2736. For the purpose of washing the vehicle, he took the vehicle near a pond created owing to quarrying at Ayiramkolli and while proceeding to the said pond, the jeep capsized and as a result of which Reji fell M.A.C.A.No.1451/2012 2 into the pond and died. The appellant and the sixth respondent who are respondents 2 and 1 respectively before the Tribunal had filed separate written statements, resisting the claim for compensation. 3. In the written statement filed by the sixth respondent, he admitted that he was the owner of the vehicle at the time of the accident and further admitted the fact that Reji died when he took the vehicle to the aforesaid pond for cleaning it. At the same time, it is stated therein that the compensation claimed is exorbitant. Since the vehicle was having valid insurance coverage at the time of the accident with the second respondent therein/appellant herein, the appellant/second respondent is liable to indemnify him, even if the claimants are to be compensated. He had produced copies of the registration certificate, permit, pollution control certificate etc. along with his written statement. 4. The appellant herein filed written statement taking up the following contentions: The offending vehicle was having the insurance coverage at the time of the accident in question. At the same time, it is stated therein that death had occurred while deceased was riding the jeep without any valid driving licence. The accident had occurred during the course of the employment in a private place and it occurred due to the callous M.A.C.A.No.1451/2012 3 negligence on the part of deceased Reji. The claim that the deceased was getting Rs.6,000/- as monthly wages is only an exaggeration and it is not based on any documentary evidence. The statement in paragraph 10 of the claim petition that the accident had occurred while the deceased was travelling in the vehicle for washing the jeep is not correct. In fact, the death had occurred while the deceased was driving the jeep without a valid and effective driving licence and hence he had actually contributed to the accident and therefore, the deceased was guilty of contributory negligence. 5. It appears that in the written statement, a pleading to the effect that claim of the monthly wages of the appellant viz, Rs.6,000/is an exaggeration. In fact, such a contention was made without taking note of the fact that even at the time of filing the claim petition, only an amount of Rs.3,200/- was claimed as the monthly income of the deceased. In fact, the figure Rs.6,000/- entered in the claim petition was corrected to Rs.3,200/- before it is actually filed. We have perused the original of the claim petition filed by respondents 1 to 5 herein. It is evident that it is not an amendment made by them subsequent to the filing of the claim petition. In fact, the original of the claim petition itself would reveal that the correction was made before filing the claim petition. May be correction was not carried out in the M.A.C.A.No.1451/2012 4 copy served on the appellant. The claimants should have carried out correction in all the copies of the claim petition. But, it is a fact that the claim of monthly income, going by the original of the claim petition, is only Rs.3,200/-. In such circumstances, there can be no doubt with respect to the fact that going by the statement regarding the monthly income in the claim petition, it is well within the ceiling limit for the purpose of entertaining an application under Section 163 A of the M.V. Act. 6. Based on the rival pleadings, the Tribunal formulated the following issues for consideration :- “1) Whether Sri.Reji died due to an accident arising out of the use of the motor vehicle bearing Reg.No.KL 07/AF-2636 ? 2) Whether the claimants are entitled to get compensation and if so what is the quantum ? 3) Reliefs and costs ?” 7. No oral evidence was adduced by both sides. On the side of the claimants, Exts.A1 to A6 were got marked. On the side of the respondents, no documentary evidence was also adduced. After considering the evidence on record and the rival contentions advanced, the Tribunal had passed the impugned award granting a compensation of Rs.4,17,500/- with interest @ 7.5% per annum from the date of the M.A.C.A.No.1451/2012 5 petition till realization. In that regard, the Tribunal had taken the monthly income of the deceased Reji as Rs.3,000/- in the absence of any evidence establishing his monthly income claimed in the claim petition viz., Rs.3,200/-. The fact that at the time of accident, the deceased was aged 34 years was not in dispute. The impugned award would reveal that with reference to the age of the deceased the Tribunal had taken the multiplier as `17' and after arriving at the amount payable by resorting to the multiplier-multiplicand method 1/3[rd] of the same was deducted presumably in terms of the provisions under the second schedule. In addition to the amount thus arrived at viz. Rs.4,08,000/-, Rs.2,000/- was granted towards funeral expenses, Rs.5,000/- was granted towards consortium and Rs.2,500/- was granted towards loss of estate. The insurer of the vehicle involved in the accident viz., the third respondent before the Tribunal, filed the captioned appeal raising manifold contentions. 8. We have heard the learned counsel for the appellant, the learned counsel appearing for the respondents 1 to 5 and the learned counsel appearing for the sixth respondent. 9. The learned counsel appearing for the appellant contended that the objection regarding the maintainability of the claim petition on the ground that the declared monthly income would take the claimants M.A.C.A.No.1451/2012 6 outside the purview of Section 163A of the Motor Vehicles Act viz., exceeding its ceiling limit of Rs.40,000/-, was taken on mistaken facts. It is submitted by the learned counsel that the copy of the judgment received from the Tribunal being an uncorrected copy, contained the recital regarding the monthly income as Rs.6,000/- and it was in the said circumstances that such a specific contention was taken up in this appeal. At the same time, the learned counsel contended that the respondents 1 to 5 viz., the claimants are not entitled to get any compensation in the case on hand as the accident had occurred solely due to the callous negligence on the part of the deceased Reji. In paragraph 4 of the written statement filed by the appellant before the Claims Tribunal it is stated that the deceased had driven the jeep without a valid and effective driving licence. It is in the said circumstances that the contention that the claimants are not entitled to get compensation though the claim was filed under Section 163 A of the M.V.Act, was raised. 10. Based on the aforesaid contentions, it is submitted that the claim petition filed under Section 163 A of M.V. Act ought not to have been entertained by the Tribunal. To buttress the contention the decision in **National Insurance Company Ltd.** v. **Sinitha [ 2011 (4) KLT 821 (SC)]** is relied on. It is also contended that merely M.A.C.A.No.1451/2012 7 because the claim petition was filed under Section 163 A of the M.V. Act, the Tribunal was not justified in not considering the appellant's contention regarding negligence on the part of the deceased. Yet another contention was taken up in the appeal, though not specifically taken up in the written statement, that if at all the claimants are entitled to get compensation taking into account the pleadings that the deceased was employed as a driver of the jeep and that the accident had occurred during the course of his employment, the legal heirs are entitled to get compensation only in terms of the Workmen's Compensation Act. It is contended that if the amount of compensation is assessed under the Workmen's Compensation Act taking note of his monthly income as Rs.3,000/-, the relevant factor to be applied is 199.40 and therefore, the legal heirs are entitled only to get a total amount of Rs.2,99,100/- as compensation. 11. Elaborating the contentions, the learned counsel for the appellant submitted that virtually the deceased was a tort-feasor and in such circumstances, the claimants being the legal heirs of the deceased tort-feasor, they cannot claim compensation. To buttress his contentions, besides **Sinitha's** case, the learned counsel relied on a decision of a Division Bench of this Court in **Branch Manager** v. **Vinod C.S. [2016 (3) KHC SN 20 (DB)]** . The full text of the said M.A.C.A.No.1451/2012 8 decision was made available for our perusal. It is relevant to note that it is after raising all such contentions that the learned counsel submitted that the claimants may be entitled to get compensation under the Workmen's Compensation Act. We will firstly, deal with the said contention. 12. When multiple remedies are available to a person, the doctrine of election has to be applied. Above all, the right of option is available to the claimants in the light of Section 167 of M.V. Act. A perusal of the said provision would reveal that it opens with a nonobstante clause and it reads thus :- ## “ **167. Option regarding claims for compensation in certain cases** . Notwithstanding anything contained in the Workmen's Compensation Act, 1923 ( 8 of 1923), where the death of, or bodily injury to any person gives rise to a claim for compensation uder this Act and also under the Workmen's Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both.” 13. In the light of the provisions under Section 167 of M.V. Act that a claimant who is entitled to get compensation either under the M.V. Act or under the Workmen's Compensation Act, got the right of choice of forum. In this case, evidently, respondents 1 to 5, legal heirs of deceased Reji, opted to move an application under Section 163 A of M.A.C.A.No.1451/2012 9 M.V. Act and once they exercised their right of choice, perfectly in tune of Section 167 of M.V. Act, the contention of the appellant that their right to get compensation has to be considered only under the provisions of the Workmen's Compensation Act cannot be sustained. But, at the same time, we are of the view that, that would not disentitle the appellant from taking up the contention to defeat the application that the deceased, for whose death the application under Section 163 A was moved was guilty of any of the three faults specified under Section 163 A namely, “wrongful act, negligence and default of the owner of the vehicle or vehicles concerned or of any other person”. 14. As noticed hereinbefore, in order to buttress their contentions regarding the disentitlement of the applicants/respondents 1 to 5 to get compensation under Section 163 A, the appellant relied on the decision in **Sinitha's case** (supra). May be paradoxical, the learned counsel for respondents 1 to 5 also relies on the same decision to canvass the position that the application moved by respondents 1 to 5 under Section 163 A of the M.V.Act is maintainable thereunder and that the Tribunal had rightly entertained the claim petition and granted compensation. In the light of the rival contentions raised relying on the decision in **Sinitha's** case (supra) it is only apposite to look into the question what exactly is the ratio in the said decision. M.A.C.A.No.1451/2012 10 15. A bare perusal of the decision in **Sinitha's** case would reveal that essentially two questions were framed by the Honourable Apex Court for consideration, namely; - “1. Whether Section 163A is founded on the “ fault” liability ? 2. Whether it is open to a concerned party ( owner or insurer) to defeat a claim raised under Section 163 A by pleading and establishing any one of the three “faults” namely “wrongful act”, “neglect” or “default.” ?” 16. Obviously, the Honourable Apex Court answered both the questions in the affirmative. In other words, the Apex Court held that unlike the provisions under Section 140 of M.V. Act, the provision for compensation under Section 163 A of the M.V.Act cannot be said to be “no-fault” liability and virtually, it is a “fault” liability. Based on the answer to the first question, the Apex Court went on to consider the latter question. It is obvious from the decision that the Apex Court found that though going by the provision under Section 163 A claimants shall not be required to plead or establish the death or permanent disablement in respect of which the claim was made, was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person, that would not take away the right M.A.C.A.No.1451/2012 11 available either to the insurer or to the owner of the vehicle concerned to plead and establish that the death or permanent disablement in respect of which the claim was made had occurred solely due to any of the three faults namely “ wrongful act, neglect or default”. In the light of the said conclusions arrived at, the Honourable Apex Court held that in the strict sense, compensation under Section 163 A of M.V. Act could not be said to be a “no-fault liability” and that it is in fact a “fault liability”, which could be pleaded or proved either by the insurer or by the owner. 17. The learned counsel for the appellant further contended that the evidence on record would reveal that in this case there was absolutely no involvement of any other vehicle other than the jeep insured with the appellant. The learned counsel also contended that since a specific contention regarding callous negligence against the deceased driver was raised in the written statement and when there is absolutely no case that another vehicle had also involved in the accident, it can only be taken that the accident in question was a self made one and in such a situation the legal heirs of such a person who is a tort-feasor are not entitled to get compensation under Section 163 A of the M.V.Act. 18. We are afraid the said contention cannot be sustained. M.A.C.A.No.1451/2012 12 Sub-Sections (1) and (2) of Section 163 A of the M.V.Act are relevant while considering the tenability of the said contention. Of course, we will also consider the other decisions relied on by either side. But, before adverting to the said contention, it would only be appropriate and profitable to refer to the relevant provision :- _“_ _**163A** . (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be._ _(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.”_ 19. Section 163 A starts with a non-obstante clause. Going by the same, notwithstanding anything contained in the M.V. Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, compensation, as M.A.C.A.No.1451/2012 13 indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. In the light of the said provision, it is evident that unlike the provision under Section 166 of M.V. Act, the entitlement to get compensation under Section 163 A is available only to the legal heirs of the deceased or to the victim concerned. A conjoint reading of sub-sections (1) and (2) of Section 163 A would reveal the real ingredients required to be set forth by way of pleadings in order to succeed in an application for compensation under Section 163 A of the M.V.Act. Evidently, for that purpose one has to look into the second schedule to the M.V. Act as well. A perusal of the aforesaid provision and the second schedule would reveal that primarily to make an application maintainable under Section 163 A of M.V. Act, the person who seeks compensation and is a victim of the accident or of the deceased concerned the claim of annual income shall not exceed Rs.40,000/-. At the same time, the claimant is to make plea regarding the annual income of the deceased or if he himself is the victim his annual income. In order to enable the Tribunal to determine the compensation in the light of the structured formula under the second schedule it is incumbent on the claimant to state his age at the time of the accident and in the case of death, the age of the deceased at the relevant time, to enable the Tribunal to identify the age group to which M.A.C.A.No.1451/2012 14 the victim or the deceased belongs. At the same time, a perusal of Section 163 A (2) would reveal that unlike claim under Section 166 of the M.V. Act, the claimant under Section 163 A shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made occurred due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. We may hasten to add that this will not in any way unburden the claimant from discharging the burden to establish that the death or permanent disablement, as the case may be, had occurred due to an accident arising out of the use of motor vehicle. Thus, in unambiguous terms, the statute provides that the claimant shall not be required to plead or establish those aspects. 20. It is to be noted that in the decision in **Sinitha's** case (supra) the Apex Court has considered the question whether the provisions under Section 163 A (2) which makes it clear that the claimants shall not be required to plead or establish those aspects would denude the insurer or owner of the vehicle involved in the accident to plead and establish that the death or permanent disablement in respect of which claim has been made was due to any wrongful act or neglect of the victim. As noticed hereinbefore, the Apex Court has held that the statutory provision contained under M.A.C.A.No.1451/2012 15 Section 163 A (2) would not take away such rights available to the insurer or the owner of the vehicle concerned, and at the same time, held that it could be discharged only by adducing cogent evidence. The word “cogent” means compelling or convincing. In the said circumstances, it can only be taken that the Apex Court with a purpose held that the evidence which could be adduced either by the owner or by the insurer to defeat the claim under Section 163 A is of a higher degree i.e. it should be by adducing cogent evidence. 21. When the Honourable Apex Court settled the position as above, the question is whether the contention raised by the learned counsel for the appellant that since the appellant has very specifically taken up a contention in the written statement that the accident in question in which Reji lost his life had occurred solely due to the callous negligence of the victim himself should be taken as a ground to oust the jurisdiction of the Tribunal to entertain an application under Section 163 A. In that context, it is to be remembered that 'pleading' cannot take the place of 'proof'. In the light of the decision in **Sinitha's** case (supra), it can only be said that merely because such a pleading was taken up in the written statement, that would not absolve the appellant's burden to establish the same to succeed in his attempt to defeat a claim under Section 163 A. M.A.C.A.No.1451/2012 16 22. As noticed hereinbefore, the appellant/second respondent had not adduced any evidence at all, either oral or documentary. True that such contentions were raised by the appellant herein in the light of the documents produced by the claimants viz, Exts.A1 and A2. Neither Ext.A1 nor Ext.A2 is conclusive enough to establish that the accident occurred solely due to the callous negligence from the part of Reji, on whose death claim petition was filed for getting compensation. Ext.A1 is the copy of the FIR in the crime registered in connection with the accident in question and Ext.A2 is the copy of the scene mahazar. As noticed hereinbefore, no oral evidence was also let in by any of the parties in this case. Therefore, the appellants could not be permitted to take up such a contention based on Exts.A1 and A2 to avoid the statutory liability. 23. The other contention of the learned counsel for the appellant is that Ext.A1 and A2 would not reveal the involvement of any other vehicle in the accident involving the vehicle driven by deceased Reji and the appellant as also the owner could not be called upon to adduce any other evidence to establish that the accident had occurred due to the negligence on the part of Reji. In fact, the contention that the very absence of involvement of any other vehicle itself would reveal that the accident had occurred solely due to the negligence of deceased Reji, M.A.C.A.No.1451/2012 17 who drove the vehicle at the relevant point of time. The question whether merely relying on such documents i.e. the FIR registered in connection with the accident in question or the scene mahazar prepared in relation to the said crime, could be taken as evidence, which are sufficient for the purpose of discharging the said liability. We need only to look into the decision in **Sinitha's** case (supra) to answer the question in the negative. It is evident from the said decision that in that case to hold that the rider Shijo was responsible for the accident, the Tribunal had placed reliance on the copies of the First Information Report, postmortem certificate, scene mahazar, report of inspection of vehicle, inquest report and final report. But, the Apex Court found that neither of those documents could constitute proof of negligence on the part of the rider. In such circumstances, there cannot be any doubt with respect to the position that solely by relying on Exts.A1 and A2 which are the copies of the FIR and scene mahazar, the appellant cannot be heard to contend that it has successfully discharged the burden to avoid the statutory liability. 24. The learned counsel for the appellant has taken up yet another contention with a view to defeat the claim of respondents 1 to 5 under Section 163 A of the M.V.Act. It is contended that going by the averments, it is evident that deceased Reji was the driver of the vehicle M.A.C.A.No.1451/2012 18 belonged to the sixth respondent at the time of the accident and since the accident had occurred to the driver i.e. to Reji, according to the learned counsel, Reji virtually stepped into the shoes of the owner and therefore his legal heirs could not seek for compensation for the death of Reji. Virtually, to canvass the said position, the learned counsel relied on **Sinitha's** case (supra) wherein the decision in **Oriental Insurance Co. Ltd.** v. **Jhuma Saha [(2007) 9 SCC 263** ] was referred to. It is to be noted that in **Jhuma Saha's** case no additional premium was paid by the owner of the vehicle so as to cover the risk of death or bodily injury to the owner and the owner himself was driving the vehicle and accident had occurred due to his negligence, when the vehicle driven by him dashed against a tree standing by the side of the road. A close scrutiny of the said decision would reveal that the Apex Court had considered the liability of the insurer to the extent of indemnification of the insured against the respondent or an insured person and it was ultimately found that the owner cannot be said to be a third party. Paragraphs 10 and 11 of the decision in **Jhuma** 's case (supra) assume relevance in this context. It read thus : _“10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving. The question which arises for_ M.A.C.A.No.1451/2012 19 ## _consideration is that the deceased himself being negligent, the claim petition under Section 166 of the Motor Vehicles Act, 1988 would be maintainable._ _11. Liability of the insurer Company is to the extent of indemnification of the insured against the respondent or a injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of Motor Vehicle Act, the question of the insurer being liable to indemnify insured, therefore, does not arise.” ( emphasis added)_ 25. A bare perusal of the said decision would reveal that it is not solely because of the fact the deceased was the owner of the vehicle, that the Apex Court held that he was to be blamed for the accident. Even after taking note of the fact that the deceased himself was the owner of the vehicle and no other vehicle was involved in the accident, the Apex court further held that the question would be whether the deceased himself was negligent. Needles to say that in a claim petition under Section 166 of M.V. Act, if the claimant has to succeed it is incumbent on him to show that the driver of the offending vehicle was negligent and its owner is vicariously liable and by virtue of contract of insurance, the insurer is liable to indemnify the insured. The said decision cannot be a reason for holding that in a case where an application has been filed under Section 163 A for the death of a person by the use of a motor vehicle, the mere absence of involvement of any M.A.C.A.No.1451/2012 20 other vehicle cannot be a reason for the Tribunal/ the court to presume that the accident had occurred solely due to the negligence, either of the deceased or of the victim concerned. When the provision under Section 163 A of the M.V.Act in unambiguous terms provides that the claimant shall not be required to plead or establish that the death or disablement for which the claim was made had occurred due to any of the three faults of the owner of the vehicle or vehicles concerned or of any other party, we are of the considered view that for defeating such a claim under Section 163 A of the M.V.Act, the fact that either the claimant or the deceased was guilty of commission of wrongful act or negligence is exclusively with the party who claims as such. Going by the principle under the Evidence Act also, the position is that the party who pleads has to prove the same. In the light of the decision of the Apex Court in **Sinitha's** case, the liability to prove that such an accident in which the death or permanent disablement had occurred was due to any of the three faults by the deceased or the owner himself, is on the owner or the insurer of the vehicle concerned. In other words, in the light of the decision of the Apex Court in **Sinitha's** case (supra), the Tribunal/ the court will not be justified in presuming anything regarding the question of negligence and the said fact, if raised, has to be proved by cogent evidence, either by the owner or by the insurer, of the M.A.C.A.No.1451/2012 21 vehicle. In this case, evidently such a contention was taken up by the appellant who is the insurer of the offending vehicle. It is to be noted that besides taking up such a contention in the written statement, no evidence whatsoever had been adduced by the appellant apart from relying on Exts.A1 and A2 which were produced by the claimants themselves. That apart, it is to be noted that the appellant had not produced the copy of the policy, either before the Tribunal or before this court. In the said circumstances, we are of the view that the Tribunal is justified in allowing the application and granting compensation to respondents 1 to 3. 26. In the contextual situation, it is relevant to rely on the decision of a Division Bench of this Court in **National Insurance Co.Ltd.** v. **Komalavally Amma and Others (2007 KHC 3428)** . That was also an application filed by the legal heirs of a driver of a vehicle who met with an accident and succumbed to the injuries sustained in the accident. This Court held that though the vehicle was driven by the deceased during the course of his employment, as long as an application was filed under Section 163 A of M.V. Act, the claimants need not plead or establish that the driver was not negligent. The learned counsel appearing for the appellant contended that a perusal of the said decision would reveal that the said conclusion was founded on M.A.C.A.No.1451/2012 22 a decision of a Division Bench of this Court in **National Insurance Company Limited** v. **V.Malathi C.Salian ( 2003 (3) KLT 460(F.B.)** . Obviously, the decision in **Malathi's** case (supra) was also considered by a later Full Bench of this Court in **Oriental Insurance Co. Ltd. v. Joseph (2012 (2) KLT 132 (F.B.)** . One of the questions posed for consideration in **Joseph's** case (supra) was 'whether to avoid the liability for payment of compensation in a claim petition filed under Section 163 A of the M.V.Act, the insurer could take defence by pleading any of the faults i.e. “wrongful act, “neglect”, or “ default”. As noticed earlier, the Full Bench in **Joseph's** case referred to the decision in **National Insurance Company Limited** v. **V.Malathi C.Salian ( 2003 (3) KLT 460(F.B.)** and observed thus, in paragraph 6 therein:- “ As a matter of fact, in this judgment, their Lordships were of the opinion that once the death or disablement occurred during the course of user of a vehicle and if the vehicle was found to be insured with the insurer, then the insurer cannot avoid its liability to pay compensation.” 27. After referring to **Joseph's** case, ultimately, the Apex Court in **Sinitha's** case (supra) came to the conclusion that the insurer could avoid liability for payment of compensation in an application under Section 163 A of M.V. Act by taking the defence by pleading and establishing anyone of the three faults. It is to be noted that by virtue M.A.C.A.No.1451/2012 23 of the decision of the Apex court in **Sinitha's** case (supra), as also by the Full Bench of this Court in **Joseph's** case (supra), one can only say that the decision in **Malathi's** case (supra) stands modified only to the extent that the insurer or the owner could avoid the liability by pleading and establishing commission of any of the faults by the victim or the deceased concerned in a proceeding under Section 163 A. It is to be noted that in **Joseph's** case (supra) also, the Tribunal based on the pleadings ultimately found that the accident in question had occurred solely due to the negligence of the deceased on whose death the application for compensation was filed. More importantly, in **Joseph's** case the Full Bench further held that when no additional premium was paid covering personal accident coverage and accident had occurred due to the negligence of driver himself, insurer could not be held liable. We have carefully scanned the pleadings of the appellant. No ground was taken in the appeal that no additional premium was paid to cover personal accident coverage. The policy in question was not produced by the appellant herein, either before the Tribunal or before this court. As noticed hereinbefore, in this case, the respondents before the Tribunal including the appellant before us had not succeeded in proving negligence on the part of the deceased to defeat the claim. They placed reliance only on Exts.A1 and A2 without adducing any further evidence, M.A.C.A.No.1451/2012 24 oral or documentary, to canvass the position that the accident had occurred solely due to the negligence of the deceased for whose death the claim petition was filed. We had already repelled the said contention of the appellant. 28. The appellant has produced a document describing it as the final report dated 30.9.2004 in the crime registered in connection with the accident in question along with I.A.No.2202 of 2016 with the prayer to accept it as an additional evidence and to mark it as Annexure-A1. The I.A. has been filed under order XLI, Rule 27 read with Section 173 of the M.V. Act. Apart from stating `there is no willful laches or negligence on the part of the petitioner Company in not producing the same before the Tribunal, during the trial of the claim petition' nothing was assigned as a reason for accepting additional evidence in the appeal. That apart, a perusal of the said document would reveal that it was not produced in its entirety. It is also pertinent to note that it is only a photocopy and the number of the crime is not discernible from the same. In this context, it is also relevant to note that even going by the decision in **New India Assurance Co. Ltd.** v. **Pazhaniammal (2011 (3) KLT 648)** production of police charge sheet is only a prima facie sufficient evidence on the question of negligence and it is rebuttable. At the same time, we do not find any reason to accept such M.A.C.A.No.1451/2012 25 a document as additional evidence in the appellate stage. In the said circumstances, I.A.No.2202 of 2016 stands dismissed. In the above circumstances, we do not find any reason to interfere with the findings of the Tribunal that respondents 1 to 4 herein are entitled to get compensation for the death of Reji. In view of the discussion as above, we are of the view that there is no merit in this appeal. Accordingly, it is dismissed. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** sv/TKS // true copy // Sd/P.S. To Judge