National Insurance Company Ltd. v. Vadakkeveetil Preetha and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 18TH DAY OF JANUARY 2017/28TH POUSHA 1938 MACA.No. 2789 of 2016 () ------------------------AWARD DATED 20.10.2015 IN M.V.(O.P.) NO.182 OF 2015 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALIPARAMBA APPELLANT(S)/3RD RESPONDENT IN OPMV NO.182/15: ----------------------------------------------- NATIONAL INSURANCE COMPANY LTD. PERUMAL BUILDING, MAIN ROAD, PAYYANNUR, REPRESENTED BY THE MANAGER, REGIONAL OFFICE, M.G.ROAD, ERNAKULAM. BY ADV. SRI.LAL GEORGE RESPONDENT(S)/PETITIONERS 1-4 & RES.1 & 2 IN OPMV 182/15: --------------------------------------------------- 1. VADAKKEVEETIL PREETHA AGED 29 YEARS, W/O. LATE RAGHU, VADAKKE VEETTIL HOUSE, VELLUR AMSOM, KANDOTH DESOM, P.O.KANDOTH, PAYYANNUR(VIA), KANNUR DISTRICT-670 307. 2. ASHAG V.V. (MINOR) AGED 10 YEARS, S/O. LATE RAGHU, VADAKKE VEETTIL HOUSE, VELLUR AMSOM, KANDOTH DESOM, P.O.KANDOTH, PAYYANNUR(VIA), KANNUR DISTRICT-670 307. REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN I.E. 1ST RESPONDENT, PIN-670 307. 3. ARYA V.V. (MINOR) AGED 4 YEARS, S/O. LATE RAGHU, VADAKKE VEETTIL HOUSE, VELLUR AMSOM, KANDOTH DESOM, P.O.KANDOTH, PAYYANNUR(VIA), KANNUR DISTRICT-670 307. REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN I.E. 1ST RESPONDENT, PIN-670 307. 4. THAYAMBATH JANAKI AGED 66 YEARS, W/O. NARAYANAN, THAYAMBATH HOUSE, VELLUR SISOM, KANDOTH DESOM, P.O.KANDOTH, PAYYANNUR, KANNUR DISTRICT-670 307. 5. KODAKKARAN NARAYANAN (DIED) AGED 76 YEARS, S/O. KUNHIRAMAN, VELLUR AMSOM, KANDOTH DESOM, P.O.KANDOTH, PAYYANNUR, KANNUR DISTRICT. (KODAKKARAN HOUSE), (5TH PETITIONER, DIED, RECORDED AS PER IA NO.116/15, DATED 14.10.2015), PIN-670 307. R1-R4 BY ADV. SRI.M.V.AMARESAN R1-R4 BY ADV. SRI.PHILJO VARUGHESE PHILIPS THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 18-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SKV ## C.K.ABDUL REHIM & SHIRCY V,JJ =================== M.A.C.A. No.2789 of 2016 ======================= Dated this the 18[th] day of January, 2017 ## JUDGMENT ## C.K.Abdul Rehim, J. The 3[rd] respondent before the Motor Accidents Claims Tribunal, Taliparamba in OP.(MV).No.182 of 2015 is the appellant herein, challenging the award of the Tribunal. The appellant is the insurer of the Autorikshaw bearing Registration No.KL 13 E-6994, which was alleged to be involved in the accident. Respondents 1 to 5 are the claimants before the Tribunal. The claim was with respect to death of one Raghu, who, succumbed to the injuries sustained in the accident, which occurred on 03.08.2007 at about 5.00 pm near IBP Petrol Pump at Kandoth in Kannur District. The 1[st] respondent is the wife of the deceased and respondents 2 and 3 are their children. Respondents 4 and 5 are the parents of the deceased. Evidently, the 5[th] respondent died during pendency of the proceedings before the Tribunal. The claim was instituted alleging that the deceased was travelling in the above said Autorikshaw, which was driven by the 2[nd] respondent before the M.A.C.A.No.2789 of 2016 2 Tribunal. It is stated in the claim that the 2[nd] respondent drove the Autorikshaw in a rash and negligent manner so as to endanger human life and at the spot of accident the Autorikshaw capsized causing grevious injuries on the deceased and that the deceased succumbed to the injuries on the same day itself, while he was taken to the hospital. 2. The appellant herein contested the claim by denying the above said averments and by disputing the involvement of Autorikshaw bearing registration No.KL13 E-6994 in the accident. It was contended that the actual vehicle involved in the accident was an Autorikshaw bearing registration No.KL N 6685, which was driven by the deceased himself. Contention was that the accident occurred when the Autorikshaw bearing registration No.KLN 6885, which was driven by the deceased himself, capsized at the spot of accident due to his rash and negligent driving. It is stated that the accident occurred when the deceased was conducting test drive of the Autorikshaw after repairing the same at his workshop. 3. On behalf of the claimants PW1 to 3 were examined before the Tribunal. PW1 is the wife of the deceased, who is the M.A.C.A.No.2789 of 2016 3 1[st] claimant. She is not a witness to the accident. PW2 and PW3 deposed before the court that the Autorikshaw was driven by the 2[nd] respondent before the Tribunal and that the accident occurred due to the rash and negligent driving of the Autorikshaw by the 2[nd] respondent. With respect to the accident, the police authorities have registered a case as Crime No.320 of 2007 of Payyannur Police Station. Certified copy of the FIR was produced by the 3[rd] respondent, which was marked as Ext.B1. It would indicate that the case was registered on 04.08.2007 at about 8.45 hrs. based on statement given by the PW3. In the said statement PW3 had mentioned that the accident occurred when the deceased was travelling as a passenger in the Autorikshaw bearing registration No.KL 13 E-6994 which was driven by the 2[nd] respondent before the Tribunal. But the 3[rd] respondent had produced certified copies of other police records, which include Ext.B2 interim report and Ext.B3 final report of the investigation. Learned Counsel for the appellant made available the copies of those documents for our perusal. Ext.B2 is the report submitted by the Station House Officer, Payyannur Police Station before the Magistrate Court, M.A.C.A.No.2789 of 2016 4 which would indicate that during the investigation it was revealed that the deceased died due to injuries sustained by capsizing Autorikshaw No.KLN 6685 while he was conducting trial run of the said Autorikshaw driven by himself. In the said report it is mentioned that, further investigation is being conducted. Subsequently, the investigating officer submitted Ext.B3 Charge Sheet implicating the deceased himself as accused for offences punishable under Section 279 and 304 A of the Indian Penal Code, making allegations that, during the investigation it was revealed that the accident occurred due to rash and negligent driving of the Autorikshaw bearing No. KLN 6685 by the deceased himself and that he sustained fatal injuries when the Autorikshaw capsized. The charge sheet was filed as abated due to death of the deceased. Ext.B4 is the copy of the inquest report and Ext.B5 is the report regarding the inspection of Autorikshaw bearing registration No.KLN 6685. Ext.B6 is the copy of Scene Mahazar. 4. The Tribunal while appreciating the issue based on the rival contentions observed that, Ext.B1 FIR was lodged by PW3 on the early morning of the next day of the accident and it revealed M.A.C.A.No.2789 of 2016 5 that the 2[nd] respondent was driving the said vehicle. The Tribunal further observed that Exts.B2 to B6 were not properly proved by the 3[rd] respondent by examining the Investigating Officer. Accepting the oral evidence of PWs1 to 3 the Tribunal had discarded Exts.B2 to B6 documents by observing that they were not properly proved by examining the Investigating Officer. Therefore, the Tribunal accepted the claim finding that the accident occurred due to the rash and negligent driving of the 2[nd] respondent before the Tribunal and holding that the appellant being the insurer of the Autorikshaw bearing registration No.KL 13 E-6993 held is responsible for paying the amount of compensation. The Tribunal awarded a total compensation of Rs.6,63,000/. 5. Heard learned Standing Counsel appearing for the appellant and learned counsel appearing for the respondents. 6. On behalf of the appellant it is contended that, the Tribunal went highly erred in discarding Exts.B2 to B6 documents and in allowing the claim based on the oral evidence of PW2 and P3, which is against the findings arrived on the investigation M.A.C.A.No.2789 of 2016 6 conducted by the police. Learned counsel for the appellant placed reliance on a Division Bench decision of this Court in **New India Insurance Company Ltd. v Pazhani Ammal [2011 (3) KLT 648]** . In the said decision it is observed that, in a claim petition if any one of the party do not accept the 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 Tribunal should give further opportunity to others also to adduce oral evidence and in such 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 Section 166 of the Motor Vehicles Act. The Division Bench further observed that, what they meant to say is that on such production of the such charge sheet the shifting of burden must take place. It is not as though the court is not conscious of the dangers and pitfalls involved in such an approach. But the court felt that adoption and recognition of such practice would help to reduce the length of the long queue of justice before the Tribunal. The judicial M.A.C.A.No.2789 of 2016 7 recognition of the practice will hold the tribunals to ensure the optimum use of judicial time at their disposal for productive ventures. 7. Relying upon the dictum contained in the case cited above, learned Standing Counsel for the appellant contended that the claimants have failed in disproving the charge sheet. But we are not persuaded to accept such a contention, because the claimants have adduced oral evidence against the version contained in the charge sheet and such oral evidence is supported by Ext.B1 document. Counsel for the respondents contended that, the Tribunal was right in discarding Ext.B2 to B6, because the appellant had not proved those documents by examining the author of the final report. He vehemently contended that it is the settled legal position that mere marking of such documents would not confer any evidentiary value, unless it is proved by examining the maker of such document. 8. While appreciating the rival contentions, we felt it necessary to have a perusal of the documents. Ext.B4 is a crucial document, which is the Inquest Report prepared on examining M.A.C.A.No.2789 of 2016 8 body of the deceased, between 10.00 am and 11.30. am on 04.08.2007. Three witnesses cited in the Inquest Report had categorically mentioned that the deceased died when an Autorikshaw which he was driving capsized at about 4.00 pm on 03.08.2007 near the IBP Petrol Pump. All of them had specifically mentioned that the Autorikshaw was driven by the deceased was one entrusted for repair at his workshop and that the deceased was conducting trial run (test driving). Therefore we take note of the fact that there is a material inconsistency between Ext.B1 FIR and Ext.B4 Inquest Report, both prepared on the same day, which is the next day of the accident. So also Ext.B3 final report would reveal that during the investigation the police authorities have received acceptable evidence in support of the version that the deceased died while capsizing the Autorikshaw bearing registration No.KLN 6685 which he was driving at the time of the accident. It is also to be noted that, despite production of Ext.A1, copy of the private complaint, no evidence is forthcoming with respect to prosecution of the complaint before the Magistrate court. M.A.C.A.No.2789 of 2016 9 9. From the factual circumstances emerging as above, question mooted for consideration in the appeal is as to whether the Tribunal was justified in discarding the documentary evidence adduced through Exts.B2 to B6. The reason mentioned by the Tribunal is that those documents were not properly proved. Contention of the respondents need to be accepted to a certain extent that, evidentiary value of those documents would depend upon its proof before the court by examining the person who authored those documents. It is true that mere marking of those documents is insufficient to prove its contents. But those are certified copies in the criminal case, which were obtained from the Magistrate Court. It is pertinent that the Tribunal had omitted to take note of the in consistency of the versions put forth by the claimants as revealed from those documents. Therefore we are inclined to make an observation that, while deciding the claim the Tribunal had failed to make a probe into the available evidence in order to arrive at a correct and clear conclusion, which was essential to decide the claim, especially when the Tribunal is following a summary procedure in the matter of deciding the claim. M.A.C.A.No.2789 of 2016 10 10. Learned counsel for the respondents contended that the appellant has no case in appeal that there was any denial of opportunity before the Tribunal; and hence their failure to adduce proper evidence cannot be rectified in appeal. However, as observed above, this Court is of the opinion that a correct and proper adjudication with respect to the rival stands taken by the parties is essential to arrive at a just and proper conclusion with respect to the factum of the accident. Hence we are inclined to remand the case for a further adjudication and disposal by the Tribunal. The Tribunal shall afford opportunity to either side to adduce further evidence in the matter and to take an appropriate decision based on the entire facts available on record. 11. Hence the appeal is hereby allowed. The impugned award passed by the Tribunal in O.P.(MV) No.182 of 2015 is hereby set aside. The claim petition is remanded to the Tribunal for the purpose of taking a fresh decision on the question of negligence based on the rival contentions. The Tribunal shall afford both the parties to adduce further evidence if any. The matter shall be decided based on the entire evidence available. M.A.C.A.No.2789 of 2016 11 It is made clear that this Court has not interfered with the fixation of quantum of the compensation and no further adjudication is required on that aspect. The Tribunal shall pass fresh award based on the above directions, at the earliest possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. The parties in this appear shall appear before the Tribunal on 13.03.2017 for further steps. C.K.ABDUL REHIM, JUDGE SHIRCY V. JUDGE SKV