National Insurance Co. Ltd. v. Shaji V.P.

**MACA.No.538 OF 2015** **1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942** **MACA.No.538 OF 2015(F)** **AGAINST THE AWARD IN OPMV 962/2012 DATED 26-06-2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL PALA** ## **APPELLANT/S:** **THE NATIONAL INSURANCE CO.LTD. PALA, REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE,2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35** **BY ADVS. SRI.GEORGE CHERIAN (SR.) SRI.ALEXY AUGUSTINE SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI** ## **RESPONDENT/S:** **SHAJI .V.P. S/O. MATHAI, VARIKKANAIKKAL HOUSE, KARUKACHAL VILLAGE, SANTHIPURAM PI, KOTTAYAM 686545** **R1 BY ADV. SRI.P.C.HARIDAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-09-2020, THE COURT ON DELIVERED THE FOLLOWING:** **MACA.No.538 OF 2015** **2** ## **JUDGMENT** The appellant is the 3[rd] respondent in OP(MV) No.962/2012 on the file of the Motor Accident Claims Tribunal, Pala. The respondent in the appeal was the petitioner in the claim petition. The parties are, for the sake of convenience, referred to as per their litigate status in the claim petition. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the accident that took place on 22.2.2012. It was his case that, while he was riding a scooter bearing Reg. No.KL-05 AC 5905 on the Chethipuzha road, the bus bearing Reg.No.KL5/T-3699, owned by the 1[st] respondent and driven by the 2[nd] respondent in a rash and negligent manner, hit the scooter of the petitioner. The petitioner fell down and sustained grievous injuries. 3. According to the petitioner, it was only due to **MACA.No.538 OF 2015** **3** the rash and negligent driving of the 2[nd] respondent that the accident took place. Therefore, the respondents were jointly and severally liable to compensate the petitioner. He claimed a total amount of Rs.8,56,500/- which was limited to Rs.8,00,000/-. 4. The respondents 1 and 2 were set ex parte. The 3[rd] respondent – Insurance Company – the appellant filed a written statement. It was, inter alia, contended that the petitioner was guilty for contributory negligence because he was driving the scooter at high speed and on the wrong side. 5. The petitioner was examined as PW1 and Exts.A1 to A14 were marked through him. The respondents did not adduce any oral or documentary evidence. 6. After considering the pleadings and materials on record, the Tribunal by the impugned award allowed the claim petition in part, by permitting the petitioner to realise an amount of Rs.1,58,792/- with 7.5% interest per annum from the date of petition till **MACA.No.538 OF 2015** **4** the date of payment along with proportionate costs. The 3[rd] respondent was directed to deposit the entire amount within a period of three months., 7. The Tribunal in paragraph 11 of the impugned award has held that, as the petitioner was riding the scooter on the wrong side of the road and without a driving licence, there was negligence on his part. However, as the 2[nd] respondent had seen the petitioner riding the scooter on a straight road, he could have averted the accident. Therefore, the Tribunal assessed negligence on the part of the petitioner @ 25% and that of the 2[nd] respondent @ 75%. Accordingly, though the Tribunal awarded a total amount of Rs.2,11,722/-, 25% of the amount was deducted towards contributory negligence of the petitioner. 8. Aggrieved by the fixation of only 25% contributory negligence, the appellant has filed this appeal contending that the Tribunal ought to have fixed the negligence on the part of the petitioner @ **MACA.No.538 OF 2015** **5** 75% and not 25%. 9. Heard the learned counsel for the appellant and the learned counsel for the respondents. 10. A Division Bench of this Court in **New India** ## **Insurance Co.Ltd v. Pazhaniammal[2011 (3) KLT** ## **648]** has 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 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 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 the 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 **MACA.No.538 OF 2015** **6** 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 Tribunal feel that the police charge sheet does not satisfy their judicial conscience, the Tribunal 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.” 11. The above legal position has been reiterated by another Division Bench of this Court in **Kolavan v. Salim[2018 (1) KLT 489]** and by a learned Single Judge in **Samadh M.B and another v. Binu and others [2020 KHC 444]** . 12. On a re-appreciation of the evidence on record, it is seen that the Police after investigation had filed Ext.A6 final report, wherein, it is categorically found that it was due to negligence on the part of the 2[nd] respondent the accident occured. The Police had charge-sheeted the 2[nd] respondent for offences punishable under Sections 279, 337 and 338 of the Indian Penal Code, for driving the bus – offending **MACA.No.538 OF 2015** **7** vehicle in a rash and negligent manner and causing grievous injuries to the petitioner. 13. Ext.A7-Medical Certificate and Exts.A8 to A10 discharge certificates substantiate that the petitioner had sustained serious injuries. Similarly, Exts.A13 medical certificate also establishes that the petitioner had sustained injuries as averred in the claim petition. 14. Going by the ratio decidendi in **Pazhaniammal** which was reiterated in **Kolavan** and **Samadh M.B** (cited supra), the 3[rd] respondent ought to have mounted the box and let in contra evidence to disprove Ext.A6 final report. In the absence of any evidence to discredit Ext.A6 final report, filed by the Police after investigation, the 3[rd] respondent cannot be permitted to contend that the investigation conducted by the police is bad, collusive or sham. Ext.A6 corroborates with Exts.A7 to A13 15. On a re-appreciation of the pleadings, evidence and materials on record, I concur with the **8** ## **MACA.No.538 OF 2015** view of the Tribunal holding the petitioner guilty for contributory negligence @ 25% and the 2[nd] respondent guilty for contributory negligence @ 75%. In the absence of any material to disprove Ext.A6 final report and the law laid down by this Court, I am of the considered opinion that there is no error or illegality in the award passed by the Tribunal. Resultantly, the appeal is dismissed. ma **Sd/- C.S.DIAS, JUDGE** **/True copy/**