Mathew Joseph v. Surender Singh, Virender Singh Solanki and The Manager, National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 11TH DAY OF DECEMBER 2019 / 20TH AGRAHAYANA, 1941** ## **MACA.No.1548 OF 2009** **AGAINST THE AWARD IN OP(MV)NO.330/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA** ## **APPELLANT/PETITIONER :** **MATHEW JOSEPH, S/O.JOSEPH UDAMPANATTU HOUSE, KARIMKUTTY POST, VYTHIRI TALUK,, WAYANAD DISTRICT.** ## **BY ADV. SRI.SUNNY MATHEW** ## **RESPONDENTS/RESPONDENTS :** - **1 SURENDER SINGH, S/O.RISHAL SINGH R/O.H.NO.6869, NAJAF GARH, DELHI.** - **2 VIRENDER SINGH SOLANKI S/O.LAL CHAND SOLANKI, WZ-17-ASSLATPUR, POST JANAKPURI, NEW DELHI.** - **3 THE MANAGER, NATIONAL INSURANCE COMPANY LIMTITED, BHANDAT HOUSE, 3RD FLOOR, 4/24A, ASAF ALI ROAD, NEW DELHI.** **R3 BY ADV. SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1548 OF 2009** **2** ## **JUDGMENT** The appellant is the claimant in OP(MV) No.330 of 1998 on the file of the Motor Accidents Claims Tribunal, Kalpetta, a claim petition filed under Section 166 of Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained by him in a motor accident alleged to have occurred on 18.03.1997 at about 9.30 am. Going by the averments in the claim petition, the appellant/claimant was standing outside the gate of Delhi Cantonment to deliver postal articles to TPT Colony. While so, one Somasundaram, an army personnel, along with one Rajesh, a co-worker, came there on a motorcycle bearing Registration No.DBX-134, from Seema Bhavan, where he was posted on duty towards 629 TPT Colony. Sri.Rajesh, who was riding the motorcycle, stopped the vehicle near the traffic signal. While he was waiting for green signal, the appellant crossed the road and reached near the motorcycle to hand over the postal articles to Sri.Somasundaram. By that time, a truck bearing Registration No.DL-1/GA-4367, driven by the 1[st] respondent owned by the 2[nd] respondent **MACA.No.1548 OF 2009** **3** and insured with the 3[rd] respondent came in a rash and negligent manner and hit on the motorcycle. In the accident, the appellant and also the rider and pillion rider on the motorcycle sustained serious injuries. The rider and pillion rider on the motorcycle succumbed to the injuries and the appellant was admitted at Safdarjung Hospital, from where he was taken to Army hospital, Delhi Cantonment, where he had undergone inpatient treatment from 18.03.1997 to 21.05.1997. Alleging that the accident occurred due to the rash and negligent driving of the truck by the 1[st] respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.10,00,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 remained absent and they were set _ex parte_ . The 3[rd] respondent insurer filed written statement admitting insurance coverage of the truck involved in the accident; however denying the accident as alleged in the claim petition. The insurer contended that the appellant/claimant sustained injuries on account of rash and negligent riding of motorcycle bearing **MACA.No.1548 OF 2009** **4** Registration No.DBX-134 by its rider. Since the rider, owner and insurer of the motorcycle are not made parties, the claim petition is bad for non-joinder of necessary parties. The insurer has also disputed the claim made by the appellant/claimant under various heads. 3. Before the Tribunal, Exts.A1 to A5 were marked on the side of the appellant/claimant and he was examined as PW1. The document marked as Ext.X1 is the report of accident, copy of FIR and hospital admission and discharge summary. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the materials placed on record are not sufficient to conclude that the appellant/claimant sustained injuries consequent to the rash and negligent driving of truck by the 1[st] respondent driver. Therefore, he is not entitled to get any compensation, as claimed in the claim petition. Accordingly, the Tribunal rejected the claim petition with cost. 5. Feeling aggrieved, the appellant/claimant is before this Court in this appeal. **MACA.No.1548 OF 2009** **5** 6. Heard the learned counsel for the appellant and the learned Standing Counsel for the third respondent insurer. Despite service of notice, none appears for the 2[nd] respondent. 7. Service of notice is not complete on the 1[st] respondent driver, who was set ex parte before the Tribunal. Since insurance coverage of the truck involved in the accident is admitted by the 3[rd] respondent insurer and notice has already been served on the 2[nd] respondent owner, service of notice on the 1[st] respondent is dispensed with. 8. The issue that arises for consideration in this appeal is as to whether the impugned award of the Tribunal, whereby the claim petition filed by the appellant stands dismissed on a finding that he failed to prove negligence on the part of the 1[st] respondent driver in the accident, in order to maintain a claim under Section 166 of the Motor Vehicles Act, can be sustained in law. 9. As already noticed, in the claim petition the specific case of the appellant is that he sustained injuries in a motor accident which occurred on 18.03.1997 involving a truck **MACA.No.1548 OF 2009** **6** bearing registration No.DL-1/GA-4367 driven by the 1[st] respondent and owned by the 2[nd] respondent. The accident occurred in front of Delhi Cantonment, while the appellant was attempting to hand over postal articles to TPT Colony to one Somasundaram, the pillion rider on a motorcycle bearing registration No.DBX-134. One Rajesh, a co-worker, was the rider of that motorcycle. While the motorcycle which was stopped near the traffic signal was waiting for green signal to move forward, the same was hit by the truck involved in the accident, as a result of which, the rider and pillion rider on the motorcycle sustained fatal injuries, who succumbed to the injuries. The appellant, who was standing near the motorcycle sustained serious injuries, who had undergone inpatient treatment at Army Hospital, Delhi Cantonment, for the period from 18.03.1997 to 21.05.1997. 10. Before the Tribunal, the appellant/claimant was examined as PW1 and the report on accident forwarded by the Senior Record Officer, Sena Seva Corps Abhilekh (Dakshin), ASC Records (South), Bangalore was marked as Ext.X1-1. The document marked as Ext.X1-2 is a copy of **MACA.No.1548 OF 2009** **7** FIR in the crime registered in connection with the motor accident, which occurred on 18.03.1997, in front of Delhi Cantonment, alleging offences punishable under Section 279 and 337 of the Indian Penal Code. Ext.X1-3 is the hospital admission and discharge card. As evident from Ext.X1-1 report, after the accident the appellant was placed in 'low medical category' and finally he was discharged from service on 28.02.2003. As per the said report the change in 'medical category' of the appellant was due to the accident occurred on 18.03.1997. 11. 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 **MACA.No.1548 OF 2009** **8** 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 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 **MACA.No.1548 OF 2009** **9** 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 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.” ## 12. 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 **MACA.No.1548 OF 2009** **10** 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. 13. 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. The standard to be followed in such a case is one of preponderance of probability rather than one of proof beyond reasonable doubt. There is nothing in the Motor 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 **MACA.No.1548 OF 2009** **11** examination. 14. 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 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 **MACA.No.1548 OF 2009** **12** 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 facts, the Tribunal cannot stop the proceedings there, but shall make an endevour to discover the facts by calling for additional materials from parties. 15. In the instant case, the documents marked as Ext.X1 series, which were copy of the official records forwarded by the Senior Record Officer, Sena Seva Corps Abhilekh (Dakshin), ASC Records (South), Bangalore, would make it explicitly clear that the appellant sustained injuries in a motor accident which occurred on 18.03.1997 involving a truck bearing registration No.DL-1/GA-4367 and also a motorcycle bearing registration No.DBX-134. The accident occurred while the motorcycle was stopped near the traffic signal, just in front of a zebra crossing. While the appellant was attempting to hand over postal articles to the pillion rider on the motorcycle, the same was hit by the truck **MACA.No.1548 OF 2009** **13** driven by the 1[st] respondent and as a result of which, the appellant and also the rider and pillion rider on the motorcycle sustained injuries. 16. The appellant, who was examined as PW1 has deposed that he sustained injuries in a motor accident involving truck bearing registration No.DL-1/GA-4367 and that, the accident occurred due to the rash and negligent driving of truck by the 1[st] respondent driver. Viewed in the light of the law laid down in the decisions referred to supra, the materials placed on record before the Tribunal and also the oral testimony of the appellant as PW1 are sufficient to prove the fact that he sustained injuries in a motor accident which occurred on 18.03.1997 and that, the accident occurred due to the rash and negligent driving of truck bearing registration No.DL-1/GA-4367 by the 1[st] respondent driver. Therefore, the finding of the Tribunal to the contra in the impugned award is set aside, by holding that the appellant sustained injuries in a motor accident, which occurred on 18.03.1997 and that the accident occurred due to rash and negligent driving of truck bearing registration **MACA.No.1548 OF 2009** **14** No.DL-1/GA-4367 by the 1[st] respondent driver. 17. In the result, this appeal is disposed of by setting aside the award passed by the Tribunal and remanding O.P(MV)No.330 of 1998 to the Tribunal for the purpose of awarding just and reasonable compensation to the appellant under various heads. Since the claim petition is of the year 1998, the Tribunal shall dispose of the same, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. Both sides shall appear before the Tribunal on ## **07.01.2020** . Registry shall return LCR to the Tribunal forthwith. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/21/12