MACA No. 213 of 2013 & MACA No. 388 of 2013 (The New India Assurance Co. Ltd. v. P.H.Iqbal & others)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: ## THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 6TH DAY OF SEPTEMBER 2016/15TH BHADRA, 1938 MACA.No. 213 of 2013 () ------------------------ AGAINST THE AWARD IN OP(MV)NO. 246/2008 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA DATED 27-09-2011 APPELLANT/6TH RESPONDENT: --------------- THE NEW INDIA ASSURANCE CO.LTD., REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G.ROAD, ERNAKULAM, REPRESENTED BY ITS DULY AUTHORIZED OFFICER. BY ADV. SRI.V.P.K.PANICKER RESPONDENTS/RESPONDENTS 1 TO 5 & PETITIONER: -------------- 1. P.H.IQBAL, S/O.HUSSAIN, PAREKKATTU HOUSE, KOTTAPPADY P.O., KOTHAMANGALAM-686692. 2. ELDHOSE, S/O.ALIAS, THONDUNGAL HOUSE, POOYAMKUTTY KARA, KUTTAMPUZHA VILLAGE-686681. 3. THE ORIENTAL INSURANCE CO.LTD. BRANCH OFFICE, P.B.NO.50, ELENGICAL PLAZA, CHURCH VIEW JUNCTION, KOTHAMANGALAM-686691. - 4. P.G.VIJAYAKUMAR RENJITH NIVAS HOUSE, N.EZHIPURAM, MARAMPILLY P.O.-683105. (DIED) 5. JOBY MATHEW, S/O.MATHEW, CHERUKATTUPARAMBIL HOUSE, KADAVOOR, KOTHAMANGALAM-686671. 6. VARKEY, S/O.PAILY, PUTHIYEDATH HOUSE, KOLAPPURAM KARA, KADAVOOR VILLAGE-686671. - *ADDL.RESPONDENTS 7 TO 10: ADDL.R7. SARASWATHY, W/O.VIJAYAKUMAR, RENJITH NIVAS HOUSE, N.EZHIPURAM, MARAMPILLY P.O.-683105 ADDL.R8. MR.RENJITH, AGED 32 YEARS, S/O.VIJAYAKUMAR, RENJITH NIVAS HOUSE,N.EZHIPURAM, MARAMPILLY P.O.-683105 ADDL.R9. MR.SREEJITH, AGED 28 YEARS, S/O.VIJAYAKUMAR, RENJITH NIVAS HOUSE,N.EZHIPURAM, MARAMPILLY P.O.-683105 MACA NO.213/2013 2 ADDL.R10. MRS.RENJINI, AGED 24 YEARS, D/O.VIJAYAKUMAR, RENJITH NIVAS HOUSE,N.EZHIPURAM, MARAMPILLY P.O.-683105 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 7 TO 10, BEING THE LEGAL REPRESENTATIVES OF THE DECEASED 4TH RESPONDENT, VIDE ORDER DTD.12.11.15 IN IA 209/14 IN MACA 213/13. R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-09-2016, ALONG WITH MACA. NO.388/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** **-------------------------------------M.A.C.A. Nos.213 of 2013 & 388 of 2013 -------------------------------------Dated this the 6[th] day of September, 2016** ## **COMMON JUDGMENT** These appeals are preferred by the New India Assurance Company, which is arrayed as the 6[th] respondent in O.P.(MV) Nos.246 of 2008 and 257 of 2008 before the Motor Accidents Claims Tribunal, Muvattupuzha. Contesting respondent in these appeals is the Oriental Insurance Company, which is the 3[rd] respondent in the original petitions. 2. Heard the learned counsel appearing for the appellant and the contesting respondent. 3. Short facts, relevant for the disposal of appeals, are as follows:On 25.06.2007 at about 10.20 a.m., a bus bearing No.KL-17/A5545 hit on the back side of an autorickshaw bearing No.KL-7/F-9856 causing injuries to the occupants in the autorickshaw. They are the claimants in the original petitions before the Tribunal. Tribunal, after considering the fact that both the vehicles were insured with the respective insurance companies, quantified the compensation amount and directed the appellant to pay the same finding that the autorickshaw involved in the accident was responsible for causing the accident. 2 MACA Nos.231/2013 & 388/2013 4. Learned counsel for the appellant contended that the Tribunal completely ignored the statements in the final report submitted by the Police after investigation, wherein the bus driver was indicted. According to the learned counsel for the appellant, there was no justifiable reason for the Tribunal to find that the autorickshaw driver was rash and negligent and his dereliction of duty caused the accident. 5. Reliance is placed on a Division Bench decision of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal (2011 (3) KLT 648)** . The Division Bench, after considering the aspects involved in the case, held as follows: _“7. In this context we feel it appropriate to refer to the practice adopted by many Tribunals in the State. Wherever a crime has been registered in respect of the accident and the investigation has culminated in the filing of a charge sheet by the police, such charge sheet is filed and the same is reckoned as sufficient to establish negligence on the part of the indictee. The practice has not received formal judicial approval and hence some Tribunals insist on oral evidence in support of negligence invariably. This consumes a lot of judicial time and the heavily over worked Tribunal spends its time on unnecessary oral evidence of negligence. We would certainly not want the_ 3 MACA Nos.231/2013 & 388/2013 _Tribunals to be prisoners of the conclusions of police officers. If the Tribunal finds it suspicious, it can insist for better evidence. But 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 S.166 of the Motor Vehicles Act. A system cannot feed itself on a regular diet of distrust of the police. Prima facie, charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. 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 S.166 of the Motor Vehicles Act. We mean to say that on production of such charge sheet the shifting of burden must take place. It is not as though we are not conscious of the dangers and pit falls involved in such an approach. But we feel that adoption and recognition of such practice would help to reduce the length of the long queue_ 4 MACA Nos.231/2013 & 388/2013 _for justice before the Tribunals. The judicial recognition of the practice will help the Tribunals to ensure the optimum use of judicial time at their disposal for productive ventures._ _8. We do not intend to say that collusive charge sheets need be accepted. Wherever on the facts of a given case the Tribunals feel that the police charge sheet does not satisfy their judicial conscience, the Tribunals can record that the charge sheet cannot be accepted and can call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged negligence. In such a case, the issue of negligence must be decided on the other evidence, ignoring the charge sheet.”_ Learned counsel for the appellant produced copies of the first information statement and first information report for scrutiny. It shows that the occupants in the autorickshaw blamed the bus driver for causing the accident. The investigating officer arrived at a conclusion on the basis of the statements given by the witnesses that the bus driver was responsible for the accident. However, the Tribunal on looking at the scene mahazar alone found that the autorickshaw driver's negligence caused the accident. 6. It is pertinent to note that the tar road at the relevant portion was having a width of 9.12 metres and there were road margins on both 5 MACA Nos.231/2013 & 388/2013 sides. The bus came from east to west and so it was supposed to travel through the southern side of the road. The autorickshaw, which came from west to east, took a turn towards the southern side of the road. The place of accident was 2.25 metres towards north from the southern tar end. It indicates that the autorickshaw has almost completed a right turn. The Assistant Motor Vehicle Inspector's report also shows that the left side front bumper of the bus hit on the left rear side of the autorickshaw causing damage on the left side of its body. It is therefore contended that the Tribunal should have considered these aspects and should have found that the bus driver alone was responsible. 7. Learned counsel appearing for the contesting respondent contended that the materials placed before the Tribunal would indicate that the autorickshaw driver alone was responsible for the accident. At any rate, it can only be found that both the drivers were responsible for the accident. Considering the principles of law laid down by the Division Bench of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal** (supra) and also the materials placed before this Court, I am of the view that the facts and circumstances of this case will indicate that both the drivers were responsible for causing the accident. Therefore, the Tribunal should have apportioned the liability to pay compensation between the appellant and contesting respondent. Therefore, the impugned award requires 6 MACA Nos.231/2013 & 388/2013 modification to the following extent: The appeals are allowed. The appellant and the 3[rd] respondent shall equally bear the compensation amount payable to the claimants in the above mentioned original petitions. ## **A. HARIPRASAD, JUDGE.** **cks**