New India Assurance Co. Ltd. v. Chandy Joseph and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 12[TH] DAY OF JANUARY 2022 / 22ND POUSHA, 1943 MACA NO. 163 OF 2009** **AGAINST THE AWARD DATED 30.06.2008 IN OPMV 469/2000 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA** ## **APPELLANT/3RD RESPONDENT:** THE NEW INDIA ASSURANCE CO.LTD. REGIONAL TOWERS KANDAMKULATHY TOWERS,, M.G.ROAD, ERNAKULAM, REP. BY ITS MANAGER. BY ADV SRI.VPK.PANICKER ## **RESPONDENTS/RESPONDENTS 1 & 2 & PETITIONER:** - 1 CHANDY JOSEPH, VALIYANETHU HOUSE VAYYATTUPUZHA PO, CHITTAR SEETHATHODE VILLAGE,, RANNY TALUK. - 2 ABDUL ASSIM VILAKOM PURAYIDOM, AJAS MANZIL, PATHANAMTHITTA. - 3 SARAMMA GEORGE, VETTUMANNIL PEACE COTTAGE, PAZHAVANGADI.P.O., AND VILLAGE,, RADNY TALUK. - 4 JANET ANN GEORGE AGED 20 DO.DO. 5 ALAN V.GEORGE AGED 20 DO.DO. BY ADVS. SRI.T.K.KOSHY SRI.T.MADHU SRI.SABU I.KOSHY ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 12.01.2022, ALONG WITH CO NO.84 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.No163/2009 & C.O. NO.84/2009 -:2:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 12[TH] DAY OF JANUARY 2022 / 22ND POUSHA, 1943 CO NO. 84 OF 2009** **AGAINST THE AWARD DATED 30.06.2008 IN O.P(M.V) NO.469/2000 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA. CROSS OBJECTOR/5TH RESPONDENT/3RD PETITIONER IN OP (M.V)** ALAN-V-GEORGE, VETTUMANNIL PEACE COTTAGE PAZHAVANAGADI.P.O, & VILLAGE,RANNY TALUK,, PATHANAMTHITTA DISTRICT. BY ADV SRI.T.K.KOSHY ## **RESPONDENT/APPELLANT/3RD RESPONDENT IN OP (M.V):** THE NEW INDIA ASSURANCE CO.LTD. REGIONAL TOWERS,KANDAMKULATHY TOWERS,M.G.ROAD,, ERNAKULAM,REPRESENTED BY ITS MANAGER. THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 12.01.2022 ALONG WITH MACA NO.163/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No163/2009 & C.O. NO.84/2009 -:3:- Dated this the 12[th] day of January, 2022 ## **J U D G M E N T** The appellant was the third respondent/insurer in O.P (MV) No.469/2000 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta. The respondents 1 and 2 in the appeal were the respondents 1 and 2 before the Tribunal and the respondents 3 to 5 in the appeal were the petitioners before the Tribunal. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of George V. Mathew (deceased) – husband of the first petitioner and the father of petitioners 2 and 3. It was their case that, on 19.12.1999, while the deceased was travelling in a Maruti Car bearing registration No. M.A.C.A.No163/2009 & C.O. NO.84/2009 -:4:- KL-3/C 4647 along the Ranni – Kumbazha public road, an Ambassador car bearing registration No. KL - 4 9763 (offending car), driven by the first respondent in a rash and negligent manner, came from the opposite direction and hit the Maruti car. The deceased sustained fatal injuries and lost his life instantaneously. The offending car was owned by the second respondent and insured with the third respondent. The deceased was aged 58 years at the time of accident/death and he was a Engineer by profession. The deceased was earning a monthly income of Rs.50,000/-. The petitioners were the dependents of the deceased. Hence, the petitioners claimed a compensation of Rs.20,00,000/- from the respondents. 3. The owner of the Maruti car had filed O.P(M.V) No.1510/2001 before the same Tribunal, against the respondents seeking compensation for the M.A.C.A.No163/2009 & C.O. NO.84/2009 -:5:- damage caused to the car. 4. The respondents 1 and 2 did not contest both the claim petitions. 5. The third respondent had filed separate written statements in both the claim petitions. The third respondent contended that the accident occurred due to the negligence of the driver of the Maruti car. It was also contended that the claim petition was bad for non-jointer of necessary parties as the driver, owner and insurer of the Maruti car were not made parties in the claim petition. The third respondent also disputed the age, income and occupation of the deceased. Hence, the third respondent prayed for the dismissal of the claim petitions. 6. The Tribunal consolidated and jointly tried the two claim petitions. 7. The petitioners in the two claim petitions produced and marked Exhibits A1 to A18 in evidence. M.A.C.A.No163/2009 & C.O. NO.84/2009 -:6:- The respondents did not let in any evidence. 8. The Tribunal, after analysing the pleadings and materials on record, allowed the captioned claim petition in part, by permitting the petitioners to recover from the third respondent an amount of Rs.10,30,000/- with interest and cost. However, the Tribunal entered into a finding that the driver of the Maruti car was guilty for contributory negligence to the extent of 40%. Accordingly in O.P(M.V.) No.1510/2001, the Tribunal deducted 40% of the compensation amount. But, in the captioned claim petition the entire amount was directed to be paid. 9. Aggrieved by the allowing of the claim petition and the direction that the third respondent has to pay the entire compensation amount, the third respondent has filed the appeal, and aggrieved by the finding regarding 40% composite negligence, the petitioners have filed the cross objection. M.A.C.A.No163/2009 & C.O. NO.84/2009 -:7:- 10. Heard; VPK Panicker, the learned counsel appearing for the appellant/3rd respondent/insurer and Sri.T.K. Koshy, the learned counsel appearing for the respondents 3 to 5/cross objectors/petitioners. 11. The questions that arise for consideration in the appeal are (i) whether the direction in the impugned award that the appellant/third respondent/insurer has to pay the entire compensation amount is sustainable in law? (ii) whether the composite negligence on the driver of the Maruti car to the extent of 40% would have a bearing on the present case. ## **Question No.(i)** 12.The specific case of the petitioners in the claim petition is that while the deceased was travelling in the Maruti car, due to the rash and negligent driving of the offending car by the first respondent, the accident was caused. In order to substantiate their M.A.C.A.No163/2009 & C.O. NO.84/2009 -:8:- pleading, the petitioners have produced Exhibit A1 FIR, Exhibit A2 and A3 scene mahazars and Exhibit A6 charge sheet filed by the Pathanamthitta Police in Crime No.938/99. In Exhibit A6, the police have found that the accident was caused due to the negligence of the first respondent. The respondents have not let in any evidence to the contrary to discredit Exhibit A6 charge sheet and the other materials on record. 13. The Tribunal, after examining Exhibit A2 scene mahazar, arrived at the conclusion that as the offending car was on the correct side and that the Maruti car was on the wrong side, the driver of the Maruti car had contributed 40% in causing the accident. 14. This Court in **New India Assurance Co.Ltd.** **v. Pazhaniammal** [2011 (3) KLT 648] has succinctly laid down the law that as a general rule, the production of the charge sheet is prima facie sufficient M.A.C.A.No163/2009 & C.O. NO.84/2009 -:9:- evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act,1988. Charge sheet can be accepted as evidence of negligence against the accused driver. If any party does not accept the charge sheet, then the burden is on such party to adduce oral evidence and discredit the charge sheet. Only then, the charge sheet will fall into pale of insignificance. 15. Another Division Bench of this Court in **Kolavan and Others V. Salim** [2018 (1) KLT 489] has categorically held that once charge sheet is filed, the Tribunal will not be justified in finding negligence contrary to the findings in the charge sheet, merely relying on the scene mahazar prepared in the case, without there being any direct or corroborative evidence. 16. The Honourable Supreme Court has also in **Jiju Kuruvila & others v. Kunjujamma Mohan &** M.A.C.A.No163/2009 & C.O. NO.84/2009 -:10:- **Others** [(2013) 9 SCC 166] held that no inference can be drawn on the basis of a scene mahazar to arrive at a conclusion of contributory negligence. 17. In view of the categoric enunciation of law in the afore-cited decisions and little evidence being let in by the respondents to discredit Exhibit A6 charge sheet, the finding arrived at by the Tribunal that there was contributory negligence on the part of the driver of the Maruti car to the extent of 40% is erroneous and wrong. 18. In the above legal and factual matrix, I have no hesitation to hold that the accident was caused due to the negligence of the first respondent. Admittedly, the second respondent was the owner and the third respondent was the insurer of the offending car. The third respondent has not proved that the second respondent had violated the insurance policy conditions. Therefore, it is the third respondent who is M.A.C.A.No163/2009 & C.O. NO.84/2009 -:11:- liable to pay the entire compensation amount as ordered by the Tribunal. In view of the aforesaid finding, I do not find any reason to interfere with the impugned award awarding an amount of Rs.10,30,000/- to the petitioners. In view of my finding on Question No. (i), Question No.(ii) has become irrelevant and inconsequential, especially because the cross objection is filed only with regard to the finding of contributory negligence attributed against the driver of the Maruti car and nothing more and nothing less. In the result, the appeal and the cross objection are dismissed. In the peculiar facts and circumstances of the cases, the parties shall bear their respective costs. SD/- ## **C.S.DIAS,JUDGE** rmm12/01/2022