National Insurance Co. Ltd. v. Moni, Vinod & P.K. Surendran

MACA NO. 2823 OF 2008 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 25[TH] DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943 MACA NO. 2823 OF 2008** **AGAINST THE ORDER/JUDGMENT IN OPMV 897/2003 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL , KOTTAYAM** **APPELLANT/S:** NATIONAL INSURANCE CO.LTD.,REP. BY THE DIVISIONAL MANAGER, DIVISIONAL OFFICER,, KOTTAYAM. BY ADV SRI.RAJAN P.KALIYATH ## **RESPONDENT/S:** 1 MONY, S/O KESAVAN,KOCHUCHIRAYIL HOUSE, KUMMANAM KARA,, CHENGALAM VILLAGE, KOTTAYAM DIST. 2 VINOD, S/O PRABHAKARAN, ARUPARAYIL HOUSE, KUMMANAM KARA, CHENGALAM VILLAGE, KOTTAYAM DISTRICT 3 P.K. SURENDRAN, SUJITH BHAVAN,CHEERAMCHIRA, CHENGALAM, KOTTAYAM DISTRICT BY ADVS. SRI.ALEX M. ARAYATH SRI.JOSE JOSEPH MANNAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2823 OF 2008 2 ## **JUDGMENT** The appellant-insurer was the 3[rd] respondent in OP(MV) No.897/2003 on the file of the Motor Accidents Claims Tribunal, Kottayam. The 1[st] respondent in the appeal was the petitioner and the respondents 2 and 3 were the respondents 1 and 2 before the Tribunal. The parties are, for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 21.06.2001. It was his case that, while he was traveling in an autorikshaw bearing registration No.KL-5D 3294 (autorikshaw) from Kottayam to Kumarakam, on the above said date, when the vehicle reached Alummoodu bridge, the autorikshaw took a sudden turn and it fell to its right side. The petitioner was thrown off the autorikshaw and he sustained serious injuries. He was treated as an inpatient at the Medical College Hospital, Kottayam. He sustained a fracture to his right shoulder and lateral end right clavicle. The autorikshaw was driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. The MACA NO. 2823 OF 2008 **==> picture [7 x 9] intentionally omitted <==** petitioner was a driver by profession, earning a monthly income of Rs.3,000/-. Hence, the petitioner claimed a compensation of Rs.1,50,000/- from the respondents. 3. The 2[nd] respondent had filed a written statement refuting the allegations in the claim petition. However, it was stated that the autorikshaw was validly insured with the 3[rd] respondent. 4. The 3[rd] respondent had filed a written statement, inter alia, contending that the autorikshaw was not driven by the 1[st] respondent, but was driven by the petitioner. The claim petition was filed in collusion with the respondents 1 and 2 for unlawful gain. The intimation given to the Duty Doctor of the Medical College Hospital, Kottayam, gives a clear indication that it was the petitioner who drove the autorikshaw. The Kottayam Traffic Police in collusion with the petitioner has illegally laid the charge sheet before the Court. The charge sheet has no force at all. Nonetheless, the 3[rd] respondent admitted that the autorikshaw had a valid insurance policy. Hence, the 3[rd] respondent prayed that the claim petition be dismissed. 5. The petitioner was examined as PW1 and Exts.A1 to A8 MACA NO. 2823 OF 2008 4 were marked in evidence. The respondents did not let in any evidence. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition in part, by permitting the petitioner to recover from the 3[rd] respondent an amount of Rs.46,700/- with interest and cost. 7. Aggrieved by the allowing of the claim petition, the 3[rd] respondent/insurer is in appeal. 8. Heard Sri. Rajan P. Kaliyath, the learned counsel appearing for the 3[rd] respondent insurer and Sri. Jose Joseph, the learned counsel appearing for the 1[st] respondent/petitioner. 9. The question that arises for consideration in the appeal is: Whether the impugned award directing the appellant/3[rd] respondent to pay the compensation amount is correct or not ?. 10. Sri. Rajan P. Kaliyath contended that, it is evident from Ext.A5 wound certificate, it was the petitioner who drove the autorikshaw because he had informed the Doctor at the MACA NO. 2823 OF 2008 5 Medical College Hospital, at the first instance, in the said manner. The fact that the 1[st] respondent – driver of the autorikshaw, surprisingly, had not sustained any injury in the accident fortifies this aspect. More over, it is evident from Ext.A5 wound certificate that it was the brother of the petitioner who had taken him to hospital which is again highly improbable. All the above crucial aspects leads to the irresistible conclusion that the entire case set up by the petitioner is concocted, and is only carved for the purpose of unlawful enrichment. The Tribunal, solely relying on Ext.A1 charge sheet, has arrived at the wrong conclusion that the accident happened due to the negligence of the 1[st] respondent. Sri. Rajan P. Kaliyath placed reliance on the decision of the Honourable Supreme Court in **Nishan Sing vs. Oriental Insurance Company Ltd.** [2018 (1) KLT 3098 SC], to buttress his contention that, a case filed under Section 166 of the Motor Vehicles Act, 1988, cannot be decided merely on the basis of a charge sheet. The initial onus of proof is always on the claimant/injured, to prove that the accident had occurred due to the negligence of the driver of the offending vehicle. He submitted that in view of the declaration of law in MACA NO. 2823 OF 2008 6 **Nishan Sing** (supra), the decision of this Court in **New India Assurance Co. Ltd. vs. Pazhaniammal** [2011 (3) KLT 648] has got watered down. He also placed reliance on the judgment of the Honourable Supreme Court in **Kamalesh & Ors vs. Attar Singh** [2015 (15) SCC 364] to drive home his contention that the charge sheet is not conclusive, to attribute negligence on the person mentioned in the charge sheet. Therefore, he prayed that the impugned award be set aside, especially in the light of the specific contention of the appellant/3[rd] respondent in the written statement that the charge sheet was collusive. According to him, the Tribunal has not given the appellant/3[rd] respondent an opportunity to let in evidence and discredit the charge sheet, instead has perfunctorily accepted the version of the petitioner. Therefore, he prayed that the appeal be allowed, atleast by way of remand. 11. Sri. Jose Joseph, the learned counsel appearing for the 1[st] respondent/petitioner, defended the impugned award. He contended that the mere assertion by the insurer in the written statement that the charge sheet is collusive is insufficient to discredit the charge sheet. It is the bounden MACA NO. 2823 OF 2008 7 duty of the person who alleges that a charge sheet is collusive, to let in substantive corroborative evidence and discredit the charge sheet. Therefore, he prayed that the appeal be dismissed. 12. The definite case of the petitioner in the claim petition is that, on 21.06.2001, while he was traveling in an autorikshaw, when the vehicle reached Alummoodu bridge, the 1[st] respondent negligently and abruptly swerved the vehicle causing the petitioner to be thrown off the vehicle. The petitioner was examined as PW1 and he deposed in line with the averments in the claim petition. He also produced and proved Exts.A1 to A8 in evidence. In Ext.A1 charge sheet filed by the Police, it is categorically found that the accident occurred due to the negligence of the 1[st] respondent. 13. A Division Bench of this Court in **New India Assurance Co. Ltd. vs. Pazhaniammal** [2011 (3) KLT 648] has in paragraphs 7 and 8 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 the 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. MACA NO. 2823 OF 2008 8 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 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 held 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. MACA NO. 2823 OF 2008 9 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”.** (emphasis supplied) 14. Going by the ratio in the afore-cited decision, it has been succinctly held that, if the Tribunal feels any suspicion in the charge sheet, it can insist for better evidence to be let in by the parties. But, as a general rule, it can safely accept the charge sheet as prima facie evidence of negligence while deciding a claim petition under Section 166 of the Motor Vehicles Act, 1988. If any party does not accept such charge sheet, the burden is on such party to adduce oral evidence and discredit the charge sheet. It is also specifically observed that, this Court is fully conscious of the dangers and pitfalls in following the above approach, but the above method is being adopted for the purpose of reducing the long queue for justice. Nonetheless, as a step of abandonment caution, it is further observed that in the case of collusive charge sheets, the Tribunal need not accept the charge sheet as the gospel MACA NO. 2823 OF 2008 10 truth. If the charge sheet does not satisfy the judicial conscience, the Tribunal can very well record the same and call upon the parties to let in oral evidence. Therefore, this Court has evolved a pragmatic methodology with sufficient safeguards, to expedite the justice delivery system for deciding a claim under Section 166 of the Act, instead of a pedantic approach and strict procedure, which is not envisaged under the Act and Rules, by ritualistically insisting for oral evidence to be let in by the parties to prove the issue of negligence, especially when there is no evidence to the contrary than what has been investigated and found by the Police in the charge sheet. The law in **Pazhaniammal** (supra) was laid down only to save judicial time and render speedy justice to the victims and dependents of the persons who loose their lives in tragic road accidents. 15. In **Nishan Sing** (supra), the Honourable Supreme Court has, for the reason that the offending car, after traveling behind a truck for more than a kilometer, hit on the rear side of the truck, found the charge sheet not satisfying its judicial conscious. Therefore, the Honourable Supreme Court discarded the charge sheet and held that the car driver MACA NO. 2823 OF 2008 11 negligent. The above judgment was rendered in the peculiar facts and circumstances of that particular case and cannot be said to have watered down the decade old well settled principles laid down in **Pazhaniammal** (supra). I am not persuaded or inclined to hold that **Nishan Singh** has rendered **Pazhaniammal** (supra) no longer good law. 16. In the instant case, the appellant/3[rd] respondent, other than for the bald assertion in the written statement that there is a collusion between the petitioner and the respondents 1 and 2, has not let in any evidence to discredit Ext.A1 charge sheet. Hence, following the ratio in **Pazhaniammal** (supra) and considering the fact that there was no evidence to the contrary, I hold that there is no illegality or error in the impugned award. The appeal is without any merits and is only to be dismissed. In the result the appeal is dismissed. The parties shall bear their respective costs. Sd/- ## **C.S.DIAS, JUDGE** rkc