New India Assurance Co. Ltd. v. Pazhaniammal and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 20[TH] DAY OF JULY 2021 / 29TH ASHADHA, 1943** **MACA NO. 338 OF 2008** **AGAINST THE COMMON JUDGMENT IN OP(MV) 495/2004 OF THE MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL ,THODUPUZHA, IDUKKI** ## **APPELLANT/ 5TH RESPONDENT:** NEW INDIA ASSURANCE COMPANY LTD. ETTUMANOOR NOW REPRESENTED BY DEPUTY MANAGER, REGIONAL OFFICE, M G ROAD, KOCHI-11 BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW ## **RESPONDENTS/PETITIONERS AND RESPNDENTS 1 TO 3:** 1 K.K.SUMANGALA PARACKAL HOUSE, NEYYASSERY P.O.,, THODUPUZHA TALUK. 2 K.K.NIRMALA WO.LATE KRISHNAN KANDATHINKARA HOUSE, WEST KODIKULAM P.O.,, THODUPUZHA TALUK. 3 K.K.BEENA DO.LATE KRISHNAN KOCHERIL HOUSE, UZHAVOOR P.O., NOW RESIDING AT, PARACKAL HOUSE, KUDAYATHOOR P.O.,, THODUPUZHA TALUK. 4 K.K.JAMEELA D/O.LATE KRISHNAN KOCHERIL HOUSE, UZHAVOOR P.O., NOW RESIDING AT, PARACKAL HOUSE, KUDAYATHOOR P.O. THODUPUZHA TALUK. 5 K.K.VILASINI WO.CHANDRASEKHARAN MARANGATTU HOUSE, SOUTH PAMPADY P.O.,, NOW RESIDING AT PARACKAL HOUSE,, KALIYAR P.O., VANNAPPURAM, THODUPUZHA TALUK. **MACA NO. 338 OF 2008** **2** - 6 K.K.GIREESAN S/O.LATE KRISHNAN KOCHERIL HOUSE, MEENACHIL TALUK, NOW RESIDING, AT PARACKAL HOUSE, KUDAYATHOOR P.O.,, THODUPUZHA TALUK. - 7 CHANDRASEKHARAN PILLAI S/O.PADMANABHA PILLAI, KAYYAVILA, KOLLAM. - 8 ABDUL SALIM THUNDIL VADAKKETHIL VEEDU, KARIKODE, T.K.M.C., KOLLAM P.O.,PIN-691 001. - 9 NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, P.B.NO.117, HOSPITAL ROAD,, KOLLAM P.O., PIN-691 001. BY ADV SRI.JOE KALLIATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 338 OF 2008** **3** ## **JUDGMENT** The 5[th] respondent – The New India Assurance Company Ltd - in O.P (MV)No. 495/2004 on the file of the Motor Accidents Claims Tribunal, Thodupuzha is the appellant. The respondents 1 to 6 in the appeal were the petitioners and respondents 7 to 9 were the respondents 1 to 3 before the Tribunal. The parties are, for the sake of convenience, wherever the context so requires are referred to as per their status in the claim petition. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act,1988 (for brevity referred to as “Act”) claiming compensation on account of the death of Devaki (deceased) who was the mother of the petitioners. The petitioners had averred in the claim petition that on 23.1.2004 while the deceased was travelling in an autorickshaw bearing Reg. **MACA NO. 338 OF 2008** **4** No.KL.5N/7541 from Uzhavoor to Kottayam at Parolickal Junction, a lorry bearing Reg.No.KRQ-917 which was coming from the opposite direction hit the autorickshaw. The deceased sustained serious injuries and was taken to Matha Hospital, but she lost her life on the very same day at 8 p.m. The deceased was 76 years of age and was a housewife. The accident occurred on account of the negligent driving of the lorry as well as the autorickshaw by the respondents 1 and 4. The 2[nd] respondent was the owner of the lorry and the 4[th] respondent was the ownercum-driver of the autorickshaw. The respondents 3 and 5 were the insurers of the lorry and autorickshaw, respectively. The petitioners claimed compensation from the respondents, which they quantified at Rs.2,00,000/-. 3. The petitioners also filed O.P (MV) 494/2004 claiming compensation on account of the death of their father - Krishnan in the very same incident. A fellow passenger named 'K.K.Jameela' filed O.P (MV) 937/2004 **MACA NO. 338 OF 2008** **5** claiming compensation on account of the injuries sustained to her in the accident. 4. The 1[st] respondent did not contest the proceedings and was set ex parte. 5. The 3[rd] respondent - insurance company of the lorry filed a written statement admitting that the lorry had a valid insurance coverage. But, it was contended that the accident was caused on account of the negligence of the driver of the autorickshaw. According to them, as per the scene mahazar, the autorickshaw had transgressed 2.04 meters to the wrong side. Therefore, the 4[th] respondent was guilty for negligence and the 5[th] respondent was liable to indemnify him. 6. The 4[th] respondent filed a written statement contending that he was holding a valid driving licence and his autorickshaw was covered by a valid insurance policy. Therefore, even if he is found negligent, it is the 5[th] respondent who is liable to indemnify him and liable to **MACA NO. 338 OF 2008** **6** pay the compensation. 7. The 5[th] respondent insurance company (appellant) filed a written statement admitting that the autorickshaw was covered by a valid insurance policy. Nonetheless, it was contended that as the Police after investigation filed a charge-sheet finding that the accident occurred due to the negligence of the driver of the lorry. Therefore, only the 3[rd] respondent insurance company is liable to indemnify the owner of the lorry and pay the compensation amount. 8. The Tribunal consolidated and jointly tried the original petitions. 9. The petitioners in the cases produced and marked Exts.A1 to A12 series in evidence. The 5[th] respondent produced and marked Ext.B1 copy of the charge-sheet filed by the Ettumanoor Police in Crime No.41/2004. 10. The Tribunal, after analysing the pleadings and **MACA NO. 338 OF 2008** **7** materials on record, by the impugned award, allowed the claim petitions, in part, but found that it was the 4[th] respondent who was negligent in causing the accident and therefore, it is the 5[th] respondent – insurer of the autorickshaw - who is liable to pay the compensation amount. 11. Aggrieved by the finding of the Tribunal that the 5[th] respondent is liable to pay the compensation, the 5[th] respondent is in appeal. 12. Heard Sri.Mathews Jacob, the learned Senior Counsel appearing for the appellant/5[th] respondent and Sri.Joe Kalliath, the learned counsel appearing for the 9[th] respondent/3rd respondent insurance company. 13. The sole question that emerges for consideration in the appeal is whether the finding of the Tribunal that it is the 4[th] respondent – driver of the autorickshaw who was negligent in causing the accident and therefore, the appellant/5[th] respondent is liable to pay the compensation **MACA NO. 338 OF 2008** **8** amount is correct or not? 14. Undisputedly, as per Ext.B1 final report filed by the Police in Crime No.41/04, it is found that it was the 1[st] respondent, the driver of the lorry who was negligent in causing the accident. Admittedly, neither the petitioners nor the respondents have mounted the box and let in any oral evidence. 15. A Division Bench of this Court in **New India Insurance Co.Ltd v. Pazhaniammal and Others** [2011 (3) KLT 648 **]** has categorically held that production of a charge-sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act, 1988. A charge sheet filed by the Police after investigation can be accepted as evidence of negligence against the accused-driver of the vehicle. If any of the parties do not accept the charge-sheet, the onus of proof is on such party to adduce oral evidence and discredit the charge-sheet. If the oral evidence is **MACA NO. 338 OF 2008** **9** adduced by such party, then the charge-sheet will fall into a pale of insignificance. 16. The learned counsel appearing for the 9[th] respondent – insurance company argued that in the instant case, the Tribunal relying on Ext.A2 scene mahazar has found that the autorickshaw had transgressed 2.04 meters on to the wrong side of the road which has resulted in the accident. Accordingly, the Tribunal held that it was the driver of the autorickshaw was negligent in causing the accident, which is justifiable and correct. 17. Another Division Bench of this Court in **Kolavan v. Salim** [2018 (1) KLT 489]. has held that 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. 18. Going by the authoritative pronouncement of law by the Division Benches of this Court, I am of the definite opinion that the finding of the Tribunal based on Ext.A2 **MACA NO. 338 OF 2008** **10** scene mahazar cannot withstand the scrutiny of law. The Tribunal ought to have accepted the finding of the Police in charge-sheet especially since there was no contraevidence, and held that it was the 1[st] respondent who was negligent. Therefore, I set aside the finding of the Tribunal that it was the driver of the autorickshaw who caused the accident. Placing reliance on **Pazhaniammal** and **Kolavan** (supra), I hold that it is the 9[th] respondent/3rd respondent who is liable to indemnify the owner of the lorry, namely, the 8[th] respondent and pay the compensation amount to the claimants in O.P (MV) 495/2004 as ordered by the Tribunal. In the result, the appeal is allowed. The respondents/claimants in O.P (MV)No.495/2004 are permitted to recover the compensation amount with interest and costs as ordered by the Tribunal in the impugned award from the 9[th] respondent/3rd respondent. The 9[th] respondent shall deposit the compensation amount **MACA NO. 338 OF 2008** **11** with interest and costs within two months from the date of receipt of a certified copy of the judgment. The Tribunal shall disburse the compensation amount in proportion and as per the conditions in the impugned award and in accordance with law. Needless to mention that if the appellant has deposited any amount pursuant to the impugned award, the 9[th] respondent shall reimburse/refund such amount. The parties shall bear their respective costs. ma/20.7.2021 **Sd/- C.S.DIAS, JUDGE** **/True copy/**