National Insurance Company Limited v. Symalakumari P.N. and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 12TH DAY OF MARCH 2012/22ND PHALGUNA 1933** **MACA.No. 2905 of 2008 (B) ------------------------(OP(MV)146/2005 of MACT,THODUPUZHA)** **APPELLANT: 3RD RESPONDENT IN OP (MV) NO. 146/05 -----------------------------------------------** **NATIONAL INSURANCE COMPANY LIMITED, PALAI BRANCH, RERPESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDINGS, JEWS STREET PADMA JUNCTION, KOCHI 682 035.** **BY ADV. SRI.LAL GEORGE** **RESPONDENTS:- CLAIMANTS AND RESPONDENTS 1 & 2** **----------------------------------------------** **1. SYMALAKUMARI P.N.,W/O.LATE SIVANKUTTY, AGED 39 YEARS, KOZHICKATTU HOUSE, VENGALLOOR, THODUPUZHA VILLAGE.** **2. VISHNU.S.NAIR, S/O.LATE SIVANKUTTY, AGED 10 YEARS, (MINOR) REPRESENTED BY NEXT FRIEND AND GUARDIAN MOTHER SYAMALAKUMARI, KOZHICKATTU HOUSE, VENGALLOOR, THODUPUZHA VILLAGE.** **3. VISHAK .S. NAIR, S/O.LATE SIVANKUTTY, AGED 7 YEARS, (MINOR) REPRESENTED BY NEXT FRIEND AND GUARDIAN MOTHER SYMALAKUMARI, KOZHICKATTU HOUSE, VENGALLOOR, THODUPUZHA VILLAGE.** **4. C.J.JOSEPH, CHERUVALLIL HOUSE, THEKKUMMURI KARA, PULIYANNOOR VILLAGE, PALAI.** **5. LUIE JOSEPH, S/O.JOSEPH, CHERUVALLIL HOUSE,THEKKUMMURI KARA, PULIYANNOOR VILLAGE, PALAI.** - **R4 BY ADV. SRI.K.J.JOSEMON R4 BY ADV.SRI.C.M.TOMY R4 BY ADV. SRI.MATHEW SKARIA R1, R2 & R3 BY ADV. SRI.LATHEESH SEBASTIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**DST**_ ## **PIUS C. KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ.** -------------------------------------------------------------- MACA. No. 2905 of 2008 ----------------------------------------------Dated this the 12[th] day of March, 2012 ## **J U D G M E N T** ## **Ramakrishna Pillai, J.** The Insurance Company has come up in appeal. 2. Respondents 1 to 3 who are the unfortunate widow and minor children of one Sivankutty, a Head Constable by profession, who succumbed to the injuries sustained by him in a road traffic accident occurred on 29-9-2004 approached the Tribunal claiming compensation to the tune of `10 lakhs, against which the learned Tribunal has awarded a sum of `8,37,200/-. 3. The appellant has mainly challenged the findings of the Motor Accidents Claims Tribunal on issue No.1 regarding negligence. According to the appellant, the accident occurred due to the collision between a car and the motorcycle which the deceased was riding. The lie of the road at the accident spot is in the east west direction and MACA.2905/08 -2- both vehicles were proceeding in the same direction. The deceased was proceeding behind the car insured with the appellant Insurance Company. It was contended that without considering the accident spot made mention of in the scene mahazar the learned Tribunal fixed entire liability on the driver of the car insured with the appellant Insurance Company. Thus they have challenged the impugned award though no serious challenge is made against the amount of compensation awarded. 3. We have heard the learned counsel for the appellant Insurance Company and the learned counsel for respondents 1 to 3. We have also perused the impugned award. 4. During the course of the argument the learned counsel for the appellant invited our attention to Ext.A4, which is copy of the scene mahazar, Ext. A5 which is copy of AMVI's report pertaining to the car and Ext. A6, which is copy of AMVI's report pertaining to the motorcycle involved MACA.2905/08 -3- in the accident. As per the reports, the road at the accident spot is lying in the east west direction and the tarred portion of the road at the accident spot is having a width of 9 metres. It is admitted by both sides that both the vehicles were proceeding from east to west. As per Ext. A4 scene mahazar, the accident spot is 17 cms. towards south from the northern end of the tarred portion. According to the learned counsel for the appellant as the deceased was proceeding from east to west, he was expected to be on the southern half of the road. As per the scene mahazar, he was on the extreme northern end of the road which is his wrong side. We see force in the argument advanced by the learned counsel for the Insurance Company, especially when we examine the damage caused to the vehicles involved in the accident detailed out in Exts. A5 and A6. Extensive damage was noted on the right front door of the car. Corresponding damage was seen on the left side of the MACA.2905/08 -4- motorcycle also. Admittedly, the accident had occurred on a junction. We do notice that all the above police records were pressed into service at the instance of the claimants. The learned counsel for the appellant invited our attention to the decision of this Court in Philippose Cherian and another v. T.A.Edward Lobo and another, 1991 ACJ 634, which says as follows: “A scene mahazar is most often, if not in all cases, prepared by the investigating officer during investigation of the crime. In motor accident cases, scene mahazar is prepared by the police officer while investigating into offences disclosed in first information report. Police officer is a public servant and the scene mahazar is a record made in discharge of his official duties. The entries in such record are themselves relevant facts under section 35 of the Indian Evidence Act. The principles embodied in the section is that in the case of official documents entries are made in the discharge of public duty by an officer who is authorised and is an accredited agency appointed for the purpose ( _Vide Brij Mohan v. Priya Brat, AIR 1965 SC 282_ ). The rationale is that when a public servant makes it himself in discharge of his official duty, the probability of its being truly and correctly recorded is high. What entry in a record made by a public servant in discharge of his official duties, is admissible depends upon the entry sought to be used. In a scene mahazar it is usual to MACA.2905/08 -5- contain two types of facts. Those facts which were observed by the author with his own eyes and those which he heard from others. The latter category is hearsay and is hence inadmissible except for certain limited uses. An entry in scene mahazar which relates to what the author has seen with his own eyes is admissible as direct evidence. (V _ide Rameshwar Dalal v. State of U.P., AIR 1978 SC 1558)_ Then the only question is one of proof. By strict rules of Evidence Act the entries made by a public servant which are admissible in evidence have to be proved through the person who made them. If such person is not available the entries can be proved through another person who is competent to vouchsafe the handwriting or signature of the maker of the document. But it is well settled that such strict rules of Evidence Act are not to be insisted on by Tribunals of limited jurisdiction. ( _Vide Union of India v. T.R.Varma, AIR 1957 SC 882)._ When the certified copy of scene mahazar is marked without objection, the admissible portions therein can be used by the Claims Tribunal if none of the parties disputes the correctness thereof. It is open to the party who disputes the correctness of such entries to examine anyone connected with the document for showing that the entries are unreliable. Subject to this and subject to the principles of natural justice, the Tribunals are legally competent to make use of the entries in scene mahazar even if no person connected with its making has been examined as a witness.” Viewed in that profile, we are of the view that reliance can be placed on Ext.A4 scene mahazar which was prepared by MACA.2905/08 -6- a police officer who investigated the crime. On a totality of evidence placed before us it can be concluded that the accident occurred while the deceased was overtaking the car at a junction. Overtaking is not a prohibited act. But the person who overtakes should keep sufficient distance from the vehicle which is being overtaken and also should see that no vehicles are coming from the opposite direction. In this case, there is no evidence to the effect that any other vehicle was coming from the opposite direction. However, had the deceased been vigilant this accident could have been avoided to a certain extent. However, that does not mean that there was no negligence on the part of the car driver who was handling the turning at the junction. Therefore we hold that the accident had occurred due to negligence of the driver of the car which was insured with the appellant Insurance Company as well as the deceased, the contribution of the deceased being 20%. MACA.2905/08 -7- 5. This court being the last court on facts we are bound to re-appreciate the findings entered by the Tribunal on the amount of compensation also. Admittedly the deceased was hospitalised for four days and he succumbed to the injuries while he was undergoing treatment. However, towards compensation for pain and suffering only `7000/- was awarded by the Tribunal. We are of the view that some more amount could have been awarded on that count. Thus we are awarding `8000/- more towards compensation for pain and suffering. 6. The first respondent who is the widow was only 39 years old at the time of accident. However, towards loss of consortium only a sum of `10,000/- was awarded by the learned Tribunal. As the amount awarded towards loss of consortium is inadequate we are awarding an additional sum of `10,000/- on that count. 7. The second and third respondents were only 10 and MACA.2905/08 -8- 7 years old at the time of accident. Towards loss of love and affection only a sum of `10,000/- was awarded. Considering the age of the children and the age of the deceased we are awarding an additional sum of `20,000/on that count. Thus towards the total amount of compensation respondents 1 to 3 become entitled to get an additional sum of `38,000/-. However, as we have found that there was 20% contributory negligence on the part of the deceased the total sum has to be reduced by 20%. Thus the amount of compensation will stand reduced to `7,00,160/-(837200 + 38000) X 80/100). The appeal is allowed and the award shall stand modified as above. ## **(PIUS C.KURIAKOSE, JUDGE)** ## **(A.V.RAMAKRISHNA PILLAI, JUDGE)** ksv/-