M/S ICICI Lombard General Insurance Co. Ltd. v. Bichathu, Masood Minor, and Muhammed Ashraf

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 18TH DAY OF OCTOBER 2019 / 26TH ASWINA, 1941** ## **MACA.No.180 OF 2012** **AGAINST THE AWARD IN OPMV 1147/2008 DATED 06-07-2010 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/S:** **M/S.ICICI LOMBARD GENERAL INSURANCE CO. LTD. 6/255/C, 2ND FLOOR, CITY PLAZA, YMCA CROSS ROAD, KOZHIKODE.** **BY ADVS. SRI.K.B.RAMANAND SRI.R.AJITH KUMAR (128/84)** ## **RESPONDENT/S:** - **1 BICHATHU, D/O.KUNHAYIN, STAR APARTMENTS, NEAR THAZHATHUMKANDIYIL TEMPLE, ARAKKINAR P.O., KOZHIKODE-22.** - **2 MASOOD MINOR, S/O.LATE MANSOOR, STAR APARTMENTS, NEAR THAZHATHUMKANDIYIL TEMPLE, ARAKKINAR P.O., KOZHIKODE-32, REPRESENTED BY 1ST RESPONDENT, HIS GRAND MOTHER.** - **3 MUHAMMED ASHRAF, S/O.ABOOBACKER, 22/20, AM HOUSE, BHAGAVATHI ODINILAM PARAMBA, MANARI, THIRUVANNUR P.O., KOZHIKODE-32.** **R1 BY ADV. SRI.K.M.FIROZ R1 BY ADV. SMT.M.SHAJNA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- MACA. No. 180 of 2012 ## **JUDGMENT** The appellant is the 3[rd] respondent insurer in O.P(MV)No.1147 of 2008 on the file of the Motor Accidents Claims Tribunal, Kozhikode, a claim petition filed by respondents 1 and 2 herein, under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the death of one Mansoor, son of the 1[st] respondent and the father of the 2[nd] respondent, in a motor accident which occurred on 25.07.2007, while he was walking along a public road. At the place of accident, he was knocked down by a motorcycle bearing registration No.KL-11/Z-203 owned and ridden by the 3[rd] respondent herein. The appellant is the insurer of that vehicle. In the accident, he sustained fatal injuries, who succumbed to the injuries later. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by its rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.5,00,000/-, under various heads. 2. Before the Tribunal, the insurer filed written -3- MACA. No. 180 of 2012 statement admitting insurance coverage of the offending motorcycle; however, denying the negligence alleged against the rider of that vehicle. The insurer has also disputed the age, occupation, monthly income, etc. of the deceased and it was contended that the compensation claimed is highly excessive. 3. Before the Tribunal, Exts.A1 to A4 were marked on the side of the claimants. On the side of the respondents, a copy of charge was marked as Ext.B1. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of the motorcycle by the 3[rd] respondent rider. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.4,13,500/-, together with interest at the rate of 7% per annum from the date of petition till date of deposit with a cost of Rs.2,500/and directed the insurer to satisfy the award amount. The -4- MACA. No. 180 of 2012 ## operative portion of the award reads thus; “In the result OP is allowed, allowing the petitioners to recover an amount of Rs.4,13,500/- (Four lakh thirteen thousand five hundred only) with interest @ 7% per annum from the date of this petition till the date of deposit of the amount with cost of Rs.2,500/from the respondents. Respondent No.2 is directed to produce the cheques, after deducting the amount, if any, paid u/s.140 of the Motor Vehicles Act with proportionate interest. One cheque for Rs.4,373/towards the court fee and the other cheques for the balance amount in ratio 1:2. Two cheques each of equal amount. Amount in one cheque of 1[st] petitioner shall be paid to her and other cheques shall be deposited for a period of 3 years. Amount in one cheque of 2[nd] petitioner shall be deposited till he attains age of 21 and other cheque till he attains age of 25 years. The cheque towards court fee and the amount to be deposited shall be drawn in favour of M.A.C.T. All the cheques shall be produced within 30 days of the Award.” 5. The appellant/insurer has filed this appeal challenging the finding of the Tribunal as to negligence of the rider of the motorcycle. 6. Heard the learned counsel for the appellant and -5- MACA. No. 180 of 2012 also the learned Counsel for the respondents 1 and 2. 7. The issue that arises for consideration in this appeal is as to whether interference is warranted on the finding of the Tribunal, in the impugned award, as to negligence on the part of the rider of the offending motorcycle, i.e., the 3[rd] respondent herein. 8. The document marked as Ext.A1 is a copy of the FIR and First Information Statement in the Crime registered by the Police in connection with the accident in question, against the 3[rd] respondent herein, the rider of the motorcycle. Ext.A4 is the scene mahazar. Ext.B1 Final report would show that the rider of the motorcycle was charge sheeted by police for rash and negligent riding of motorcycle. In the absence of any contra evidence, the Tribunal concluded that the accident occurred due to the negligence of the rider of the motorcycle. 9. In **New India Assurance Company Ltd. v. Pazhaniammal and others [2011 (3) KHC 595]** a Division Bench of this Court held that as a general rule, production of the police charge sheet is prima facie sufficient evidence of -6- MACA. No. 180 of 2012 negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. If police charge sheet does not satisfy their judicial conscience, Tribunals can reject it and can call upon the parties to adduce oral evidence to establish the alleged negligence. Paragraphs 7 and 8 of the judgment read thus: “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 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 -7- MACA. No. 180 of 2012 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 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 – -8- MACA. No. 180 of 2012 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.” 10. The learned Standing Counsel for the appellant insurer would contend that, the deceased had consumed liquor and the accident occurred while he was walking through the side of public road without observing traffic Rules. 11. In Ext.A2 post-mortem report it is noted that blood and urine of the deceased was preserved for estimation of alcohol, if any. The statement of occurrence witnesses, which forms part of police records would show that the accident occurred while the deceased was standing on the side of a public road and not while he was crossing the road. In the absence of any contra evidence on the side of the insurer or the owner-cum-rider of the motorcycle, Ext.B1 charge sheet can be taken as sufficient evidence of negligence on the side of the rider of the motorcycle. Therefore, the finding of the -9- MACA. No. 180 of 2012 Tribunal as to negligence on the part of the rider of the motorcycle warrants no interference in this appeal. In the result, the appeal fails and the same is accordingly, dismissed. **Sd/ANIL K.NARENDRAN JUDGE** das