MACA No.1445 of 2007 – UMMER and Others v. K.A. ASKAR and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941** ## **MACA.No.1445 OF 2007** **AGAINST THE AWARD IN OP(MV)No.1361/2001 DATED 22-12-2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANTS/PETITIONERS:** - **1 UMMER, S/O LATE SAIDALI, VETTIKKALLADI VEEDU,, CHIRAKKALKUNNU, PULLISSERY POST,, MANNARKKAD POST, NOW RESIDING AT 20/289,, FAIZAL MANZIL, PUDUPPALLI STREET,, NURNI P.O., PALAKKAD DISTRICT.** - **2 BEEVI W/O YOUSUFF KALLADI D/O LATE SAIDALI** - **3 KADEEJA, D/O SAIDALI** - **4 KUNHAMMED, S/O LATE SAIDALI** - **5 AMINA D/O LATE SAIDALI APPELLANTS 2 TO 5 NOW RESIDING AT, 20/289, FAIZAL MANZIL, PUDUPPALLI STREET,, NURNI P.O., PALAKKAD DISTRICT.** - **BY ADV. SRI.A.R.GANGADAS** ## **RESPONDENTS/RESPONDENTS:** - **1 K.A.ASKAR, S/O ABDULLA, PERUMPADARI, MANNARKKAD, PALAKKAD DISTRICT.** - **2 MANOJ S/O RAMANKUTTY PATTANISSERY VEEDU, PADINJEREKARA,, PAYYANADOM, MANNARKKAD, PALAKKAD DISTRICT.** **MACA.No.1445 OF 2007 2** **3 NATIONAL INSURANCE CO. LTD. BRANCH OFFICE III FLOOR, EAST FORT COMPLEX, PALAKKAD.** **R3 BY ADV. DEEPA (BY ORDER)** **SMT DEEPA GEORGE -STANDING COUNSEL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1445 OF 2007 3** ## **JUDGMENT** The appellants are the claimants in O.P.(M.V)No.1361 of 2001 on the file of the Motor Accidents Claims Tribunal, Palakkad, a claim petition filed under Section 166 of the Motor Vehicles Act, by the legal representatives of one Saidali, who died in a motor accident alleged to have occurred on 06.08.2000, involving an autorickshaw bearing Registration No.KL-10/A-4299, owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent. 2. Going by the averments in the claim petition, at the time of accident, the deceased was walking along the side of Mannarkad - Perinthalmanna road from east to west. At the place of accident, he was knocked down by an autorickshaw bearing Registration No.KL-10/A-4299, driven by the 2[nd] respondent in a rash and negligent manner. After the accident he was taken to Government Hospital, Mannarkkad. He was referred to District Hospital Palakkad on 09.08.2000, where he succumbed to injuries on 15.9.2000, while undergoing inpatient treatment. Claiming a total compensation of Rs.1,00,100/-, claim petition was filed before the Tribunal. **MACA.No.1445 OF 2007 4** 3. Before the Tribunal respondents 1 and 2 did not file any written statement. The 3rd respondent insurer filed a statement admitting insurance coverage of the autorickshaw in question; however, denying negligence alleged against the 2nd respondent. The insurer contended that the death of Saidali was due to illness and old age and not due to the injuries sustained in the accident. Though the date of accident was on 06.08.2000, FIR was registered only on 03.11.2000. 4. Before the Tribunal Exts.A1 to A11 were marked on the side of the appellant/claimant. Both sides had not chosen to adduce any oral evidence. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the deceased Saidali sustained injuries not in a motor accident involving autrockshaw bearing registration No.KL-10/A-4299 driven by the 2nd respondent. Therefore, the Tribunal held that respondents 1 and 2 are not liable to compensate the appellants/claimants and in such circumstances, the question of liability of the 3rd respondent insurer does not arise. 6. Notice issued to the 1st respondent returned with an endorsement "not known." By order dated 18.10.2019 notice to **MACA.No.1445 OF 2007 5** the said respondent was dispensed with, since insurance coverage of the vehicle is not in dispute. 7. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 3rd respondent insurer. 8. Going by the averments in the claim petition, the accident occurred on 06.08.2000 involving the autorickshaw in question owned by the 1st respondent and driven by the 2nd respondent. In order to prove the accident, the appellants/claimants produced Ext.A1 FIR in Crime No.565 of 2000 of Mannarkkad Police Station, which was one registered on 03.11.2000; Ext.A2 scene mahazar dated 04.11.2000; Ext.A3 AMVI report dated 26.05.2011 and Ext.A4 charge sheet dated 09.07.2001. 9. In the impugned award, the Tribunal noticed that FIR was registered on 03.11.2000, pursuant to an order of the Judicial First Class Magistrate Court, Mannarkkad under subsection (3) of Section 156 of the Code of Criminal Procedure, 1973. In Ext.A8 O.P. ticket issued from Government Hospital, Mannarkkad, it is noted that Saidaly was brought by public to the hospital with the history of fall. In Ext.A5 discharge certificate dated 02.02.2001 issued by the Medical Officer at the District Hospital, Palakkad, it is recorded that Saidali was admitted in that **MACA.No.1445 OF 2007 6** hospital on 09.08.2000. For the first time the history of RTA on 06.08.2000 is recorded in Ext.A7 discharge certificate for the period from 09.08.2001 to 17.08.2001 issued from the District Hospital, Palakkad. 10. In **Venugopala Panicker v. Unnikrishna Panicker and others [2015 (2) KHC 621]** , a Division Bench of this Court held that standard of proof required to prove negligence in a claim petition is different from the standard of proof required in a criminal case. In a claim petition before the Tribunal, the standard of proof is much below than what is required in a criminal case as well as in a civil case. Paragraph 18 of the said decision reads thus; “18. The Apex Court as well as this Court has held in umpteen number of cases that, the standard of proof required to prove negligence in a claims petition filed under Section 166 of the Motor Vehicles Act, 1988 is different from the standard of proof required in a criminal case. In **Sherin J. Thankom v. Thankom and others (2014 (3) KLT 44)** a Division Bench of this Court, to which one among us (Anil K. Narendran, J.) was a party, held that, in deciding matters arising out of accident cases the Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a claim before **MACA.No.1445 OF 2007 7** the Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. Paragraphs 14 and 15 of the judgment read thus; “ **14.** In Kusum Lata and others v. Satbir and others (2011 (3) SCC 646) the Apex Court held as follows; It is well known that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. Later, in Parameshwari v. Amir Chand and others (2011 (11) SCC 635) the Apex Court reiterated that, in a road accident claim, the strict principles of proof in a criminal case are not attracted. In Parameshwari's case (supra), the Apex Court had taken note of the observation made in its earlier judgment in Bimla Devi and others v. Himachal Road Transport Corporation and others (2009 (13) SCC 530) that, the claimants were merely to establish their case on the touchstone of preponderance of probability and that standard of proof beyond reasonable doubt could not have been applied. **15.** Prima facie we find that the reasoning given by the Tribunal in the impugned common award is in conflict with the principle laid down in the judgments of the Apex Court referred to above. In deciding matters arising out of accident cases the Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a claim before the Tribunal the standard of proof is much below than what is required in a criminal case **MACA.No.1445 OF 2007 8** as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive at or decide things necessary to be decided for awarding compensation. In such circumstances, we hold that the reasoning given by Tribunal in the impugned common award, in order to reject the claim petitions filed by the appellants are unsustainable and the said common award is liable to be set aside in these appeals.” ## 11. In **N.K.V. Bros. (P) Ltd v. Karumai Ammal [(1980)** **3 SCC 457]** , the Apex Court held that, in accident cases, the Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. It was held that save in pain cases, culpability must be inferred from the circumstances, where it is fairly reasonable and that, the Court should not succumb to niceties, technicalities and mystic maybes. 12. In **Sunita v. Rajasthan State Road Transport Corporation [AIR 2019 SC 994]** , the Apex Court held that strict principles of rules in a criminal case will not be applicable in a claim for compensation under Section 166 of the Motor Vehicles Act, 1988 and further that, the standard to be followed in such case is one of preponderance of probability rather than one of proof beyond reasonable doubt. There is nothing in the Motor **MACA.No.1445 OF 2007 9** Vehicles Act to preclude citing of witness in a motor accident claim, who has not been named in the list of witnesses in the criminal case. What is essential is that the opposite party should get a fair opportunity to cross examine the concerned witness. Once that is done, it will not be open to them to complain about any prejudice caused to them. If there was any doubt to be cast on the veracity of witness, the same should have come out in cross examination. 13. In **Shajahan U.S. v. Sundaresh G. Pai and another [2019 (3) KHC 412]** , this Court held that, in a proceeding under Section 166 of the Motor Vehicles Act, it is not necessary for the claimant to plead and proof the manner in which the accident took place, for sustaining the claim for compensation. In terms of the amended provisions, contained in Section 166 of the Motor Vehicles Act, the Tribunal is empowered to treat the information received under Section 158 of the Act as an application for compensation under the Act and to grant compensation to the victims on that basis. In other words, the claim petition filed under the Act is not an adversarial lis in its traditional sense, but only a proceedings in terms of, and regulated by the provisions of the Act, which is a complete code by itself. The approach of the **MACA.No.1445 OF 2007 10** Tribunal in dealing with the application for compensation under Section 166 of the Act shall be with a view to discover the true facts, namely, whether there was a motor accident and also whether the accident occurred on account of the negligence of the driver of the vehicle, for it is the obligation of the Tribunal in terms of the Act to give compensation to the victims of motor accidents, notwithstanding whether there is even an application for the said purpose. If materials available on record are not sufficient for the Tribunal to discover the true fact, the Tribunal cannot stop the proceedings there, but shall make an endevour to discover the fact by calling for additional materials from parties. 15. In view of the law laid down in the decisions referred to supra, in a claim petition, the standard of proof is much below than what is required in a criminal case as well as in a civil case. Therefore, the reasoning of the Tribunal in dismissing the claim petition filed by the appellant/claimant cannot be sustained. In such circumstances, this appeal is disposed of by setting aside the award dated 22.12.2006 in O.P.(MV) No.1361 of 2001 of the Motor Accidents Claims Tribunal, Palakkad and directing the Tribunal to reconsider the matter, after affording an opportunity to both sides to adduce further evidence, including oral evidence, **MACA.No.1445 OF 2007 11** and taking note of the law laid down in the decisions referred to supra. 16. The appellant and the 3rd respondent shall appear before the Tribunal on **19.12.2019** . The Tribunal shall issue notice to respondents 1 and 2, the owner and driver of autorickshaw bearing registration No. KL-10/A-4299. Since the claim petition is of the year 2001, the Tribunal shall finally dispose of the matter as expeditiously as possible, at any rate, within a period of two months from the date of appearance of respondents 1 and 2. Registry shall return LCR to the Tribunal by messenger. **Sd/-** ## **ANIL K.NARENDRAN** **JUDGE** sru