M.A.C.A.No.2751 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 9TH DAY OF OCTOBER 2017/17TH ASWINA, 1939** **MACA.No. 2751 of 2012 ()** **------------------------AGAINST THE AWARD IN OPMV 54/2008 of M.A.C.T.,KOTTAYAM DATED 05-07-2012** **APPELLANT(S)/FIRST RESPONDENT:** **-----------------------------** **N. GOPALAKRISHNAN, AGED 46 YEARS, S/O. V.M. NEELAKANDA PILLAI, ADVOCATE, VRINDAVANAM, THIRUVARPPU P.O., KOTTAYAM, PIN 686 033.** **BY ADV. SRI.R.SURENDRAN** ## **RESPONDENT(S)/CLAIMANT AND THE SECOND RESPONDENT:** **------------------------------------------------** **1. SREELATHA.R., AGED ABOUT 46 YEARS, W/O. S. MOHANAN, SURABHI HOUSE, THAZHATHAGADY P.O., KOTTAYAM, PIN-686 005.** **2. THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO.LTD, BRANCH OFFICE, EBENEZER GARDEN, COCHIN, KERALA PIN - 682 024.** **R1 BY ADV. SRI.K.R.SUNIL R BY SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D.RAJAN, J.** ---------------------------------M.A.C.A.No.2751 of 2012 ---------------------------------Dated this the 9[th] day of October, 2017 ## **JUDGMENT** This appeal is preferred against the award in O.P.(MV)No.54/2008 of the Motor Accidents Claims Tribunal, Kottayam (for short 'MACT'). One Sreelatha. R sustained injuries in a motor accident on 10.10.2006 at 9.30 a.m., while she was riding Scooter KL 5/W 8156 along KottayamKumarakam public road. The learned tribunal awarded a sum of 90,495/- with interest and costs. Being aggrieved by₹ that, the owner-cum-driver of the offending vehicle preferred this appeal. 2. The injured's case is that on the date of accident, while she was riding the scooter along KottayamKumarakam public road and reaching at Chalukunnu junction, a car KL 5/M 7085 driven in a rash and negligent manner hit on the rear side of the scooter, as a result, the injured fell down and sustained injuries. Immediately, she M.A.C.A.No.2751/2012 2 was removed to Medical Centre, Kottayam and thereafter referred to Bharath Hospital, Kottayam. The accident was due to the rash and negligent driving of the car by its driver, who disputed the accident and contended that the accident was due to the negligence of the injured herself. The insurer admitted the insurance of the vehicle, but the driver of the car was not holding valid driving licence. The injured did not adduce any oral evidence, but her documents were marked as Exts.A1 to A8. The appellant filed proof affidavit, but he was not examined as a witness and respondents' documents were marked as Exts.B1 to B4. 3. The learned counsel appearing for the appellant contended that no oral evidence has been adduced by the injured to prove the negligence of the appellant. In the absence of such oral evidence, charge sheet filed by the police itself is not a valid document to prove the negligence of the appellant. The proof affidavit filed by the appellant M.A.C.A.No.2751/2012 3 was not considered by the tribunal and no cross examination was conducted by the parties in that claim petition. The production of charge sheet is prima facie one of the grounds to prove the negligence for the purpose of claim. When the driver and owner of the offending vehicle dispute the accident and adduce oral evidence with regard to the negligence, the position is different. In such circumstances, the injured has to prove the rash and negligent act of the driver of the car. In that situation, production of charge sheet itself is not sufficient to prove the negligence. 4. It is an admitted fact that civil summary proceedings are provided for the trial of the motor accidents claim petitions, but claimant is not expected to prove her case like manner of civil litigation. When the accident is questioned by the respondents and the involvement of the vehicle is in question, the claimant is required to prima facie show that the car KL 5/M 7085 involved in this accident was M.A.C.A.No.2751/2012 4 rash and negligent for the accident (Relied _**K.S.R.T.C**_ . v. _**Laxmibai**_ [2000 (4) KLJ 276]. It is an admitted fact that the injured was travelling in a scooter KL 5/W 8156 along Kottayam-Kumarakom public road. Her case is that when she reached at Chalukunnu junction, the appellant's vehicle KL 5/M 7085 driven in a rash and negligent manner, hit against her vehicle. Immediately, she fell down and sustained injuries. Ext.A1 is the FIR in Crime No.262/2006 of Kottayam Traffic Police Station, which was registered u/s.279, 337 and 338 IPC. Ext.A2 is the charge sheet. Ext.A3 is the scene mahazar. Ext.A4 is the wound certificate. Ext.A5 is the discharge summary. The appellant contended that the injured was riding the scooter in the same direction, which came behind the car and she could not stop the vehicle, as a result injured's scooter hit on the rear side of the car, thus she fell down and sustained injuries. 5. It is an admitted fact that the road, which runs to M.A.C.A.No.2751/2012 5 Kumarakam, is a busy road and the duty casts upon the drivers of both vehicles to drive the vehicle in a careful manner. They would be able to stop the vehicle immediately in any emergent situation. If the case of the appellant is admitted, it is to say that the injured/first respondent could not stop the vehicle immediately, when she reached near the car, hence the vehicle went out of the control and hit on the rear side of the car. This would indicate that she was fairly driving at a speed, but the police records show that she is not negligent for the accident. Ext.A2 charge sheet is against the driver of the car, who is the appellant. He was also not holding valid driving licence and he was charge sheeted for the offence u/s.279, 337 and 338 IPC. If that be the position, the rash and negligent act of both drivers is to be looked into by the tribunal before fixing the liability. It has to be borne in mind that the drivers have duty to safeguard the passengers, while they were proceeding through the road. They have to M.A.C.A.No.2751/2012 6 drive the vehicle with due care and caution considering the other vehicles and passengers passing through the road. If any one is hurt due to the rash and negligent act by any one of the drivers, that evidence itself is sufficient on record to show that the accident had happened due to the rash and negligent act of any one of the drivers. When both drivers are rash and negligent for the accident, it is a different situation. 6. It is difficult to measure out the extent of negligence on the part of each drivers positively, if they did not adduce any evidence with regard to their negligence. If there is contributory negligence or composite negligence or negligence on the part of both drivers, it is their duty to prove their part. Such evidence is not found in this case. In such a situation, the charge sheet submitted by the Police itself is not prima facie sufficient to prove the negligence. The learned tribunal without appreciating that position, M.A.C.A.No.2751/2012 7 fastened the liability on the appellant, that verdict is to be set aside. In the result, the finding of the tribunal is set aside and the matter is remitted to the tribunal for fresh consdieration. Both parties are directed to appear before MACT, Kottayam within thirty days from the date of receipt of a copy of this judgment and they are at liberty to adduce both oral and documentary evidence. M.A.C.A is disposed of as above. **P.D.RAJAN, JUDGE** acd