New India Assurance Co. Ltd. v. Sithara, Suresh Mathew, B. Babu, Simon @ Sojan, and Royal Sundaram Alliance Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 25TH DAY OF MARCH 2014/4TH CHAITHRA, 1936 MACA.No.2085 of 2012 (B) -----------------------------AGAINST THE AWARD IN OPMV 844/2008 of MACT, PALA DATED 09-04-2012 --------- ## APPELLANT/3RD RESPONDENT: ----------------------------------- THE NEW INDIA ASSURANCE CO. LTD. KATTAPPANA REPRESENTED BY THE DULY CONSTITUTED ATTORNEY REGIONAL OFFICE, KANDAMKULATHY TOWERS, M.G. ROAD KOCHI - 682 011. BY ADV. SRI.M.JACOB MURICKAN ## RESPONDENTS/PETITIONER AND RESPONDENTS 1,2, 5 AND 5: ----------------------------------------------------------------------- 1. SITHARA MADAKKAKUZHY HOUSE, KOOVAPPALLY.P.O, KOTTAYAM DISTRICT PIN - 686 518. 2. SURESH MATHEW KATTUKUNNEL HOUSE, 12TH MILE, PALA.P.O PIN - 686 575. 3. B. BABU S/O. BHASKARAN, KAROLIL HOUSE, NEAR VILLAGE OFFICE ELAPPARA.P.O, IDUKKI DISTRICT - 685 501. 4. SIMON @ SOJAN VADASSERIL HOUSE, KOOVAPALLY.P.O KOTTAYAM DISTRICT - 686 518. 5. ROYAL SUNDARAM ALLIANCE INSURANCE CO. LIMITED SUNDARAM TOWERS, 46, WHITE ROAD ROYALPETTAH, CHENNAI, PIN - 600 014 REPRESENTED BY THE MANAGER. R5 BY ADV. SRI.MATHEWS JACOB (SR.) R5 BY ADV. SRI.P.JACOB MATHEW R2-R3 BY ADV. SRI.S.JAYAKRISHNAN R4 BY ADV. SRI.SHAJI THOMAS R4 BY ADV. SRI.N.NAGARESH R4 BY ADV. SRI.BINU PAUL R4 BY ADV. SRI.T.V.VINU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25-03-2014, ALONG WITH MACA. 2243/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ M. A. C. A. Nos.2085 & 2243 of 2012 -----------------------------------------------Dated this the 25[th] day of March, 2014 ## **JUDGMENT** The first respondent in both the appeals sustained injuries in a motor accident that occurred on 29-01-2008 involving a Maruti car driven by the first respondent in M.A.C.A. No.2243 of 2012 and a lorry driven by the third respondent in both these appeals. The New India Assurance Co. Ltd. is the appellant in both these appeals. The lorry was insured with them at the time of accident. The Maruti car was insured with the Royal Sundaram Alliance Insurance Co. Ltd. at the time of accident. They are the fifth respondent in M.A.C.A. No.2085 of 2012 and additional fourth respondent in the other appeal. The first respondent in both these appeals filed petitions before the Motor Accidents Claims Tribunal, Pala, claiming compensation on account of the injuries sustained by them. The Tribunal, after considering the matter, found negligence on the part of the third M. A. C. A. Nos.2085 & 2243 of 2012 -2- respondent, driver of the lorry, and awarded a total compensation of ₹ 26,122/- to the first respondent in M.A.C.A. No.2085 of 2012 and ₹ 33,411/- to the first respondent in the other appeal. The appellant was directed to pay the amounts. Dissatisfied with the finding of the Tribunal that the accident had occurred due to the negligence on the part of the driver of the lorry and contending that the appellant is not liable to pay compensation as the driver of the lorry was not holding a valid badge/authorisation for driving the lorry at the time of accident, the appellant has filed these appeals. The appellant also raised contentions challenging the quantum of compensation awarded by the Tribunal. But, the contentions in respect of the quantum of compensation are not pressed into service at the hearing of these appeals. 2. Heard the learned counsel appearing for the appellant, learned counsel appearing for the first respondent in both the appeals (the first respondent in M.A.C.A. No.2243 of 2012 is the fourth respondent in M.A.C.A. No.2085 of M. A. C. A. Nos.2085 & 2243 of 2012 -3- 2012), learned counsel appearing for the respondents 2 and 3 in both the appeals and the learned Senior Counsel appearing for the fifth respondent in M.A.C.A. No.2085 of 2012 who is the additional fourth respondent in the other appeal. For the sake of convenience, the respondents will be referred to in this judgment as they are arrayed in M.A.C.A. No.2085 of 2012. 3. Learned counsel for the appellant submits that the accident had occurred by way of a head on collision involving the lorry driven by the third respondent and the car driven by the fourth respondent. The claimants alleged negligence on the part of the third respondent. The appellant denied that allegation before the Tribunal. Both the sides had not adduced any oral evidence before the Tribunal. The Tribunal, relying on Ext.A5 Final Report filed by the police in the criminal case, found that the third respondent, the driver of the lorry, was responsible for the accident. The Tribunal also observed that no contra evidence had been adduced. In fact, the appellant produced Ext.B1 M. A. C. A. Nos.2085 & 2243 of 2012 -4- Final Report filed by the police in the criminal case. Ext.A5 alleges negligence on the part of the third respondent. But, Ext.B1 alleges negligence on the part of the fourth respondent. The non-application of mind by the Tribunal while considering the question of negligence is writ large because the Tribunal observed at a time when Ext.B1 was available that no contra evidence had been adduced, contends the learned counsel. He also submits that the third respondent was not holding a valid badge/authorisation for driving the lorry at the time of accident. Therefore, the appellant is not liable to indemnify the owner of the lorry viz. the second respondent. 4. Learned counsel for the fourth respondent submits that the fourth respondent was driving a Maruti Alto car and the third respondent was driving a heavy vehicle viz. a lorry. The negligence on the part of the third respondent alone had caused the accident. The fourth respondent was not at all negligent at that time, he further submits. 5. Learned counsel for the respondents 2 and 3 submits M. A. C. A. Nos.2085 & 2243 of 2012 -5- that the third respondent was holding a valid driving licence for driving the lorry at the time of accident. The badge/ authorisation granted to the third respondent for driving the lorry remained expired at that time. But, based on the ruling of this Court in **Kuruvilla v. Jijo Joseph (2013 (4) KLT 700)** , the appellant cannot avoid their liability and they are liable to indemnify the second respondent. 6. Learned Senior Counsel for the fifth respondent submits that the lorry involved in the accident was a far more heavier vehicle than the Maruti Alto car. Therefore, it is only reasonable to find that the third respondent alone was responsible for the accident. The argument that the fourth respondent was also negligent cannot be accepted, he further contends. 7. Ext.B2 Scene Mahazar in the criminal case shows that the road, where the accident took place, lies east-west. But, the Scene Mahazar does not show the actual place where the accident occurred. If such a reference is made in the Scene Mahazar which would have been helpful to arrive M. A. C. A. Nos.2085 & 2243 of 2012 -6- at a conclusion in regard to the responsibility of the drivers of the vehicles involved in the accident. Unfortunately, such a statement is absent in the Scene Mahazar. Therefore, Ext.B2 is not helpful to arrive at a conclusion in regard to the negligence of the drivers. 8. The claimants or the respondents before the Tribunal had not adduced any oral evidence with regard to the negligence aspect or in respect of other matters. Ext.A5 Final Report in the criminal case was produced from the side of the claimants. The appellant produced Ext.B1 Final Report. Both these documents would go to show that the police found negligence on the part of both the drivers. The Tribunal did not consider Ext.B1 in the award. But considered Ext.A5 and relying on that document arrived at the conclusion that the third respondent was responsible for the accident. The Tribunal also observed that there was no contra evidence. The reasoning for the finding thus entered by the Tribunal is factually incorrect. Of course, Ext.A5 indicates negligence on the part of the third respondent. M. A. C. A. Nos.2085 & 2243 of 2012 -7- But, the fourth respondent was equally found negligent by the police in Ext.B1. That aspect of the matter was not looked into or considered by the Tribunal. Without considering that, the Tribunal observed that there was no contra evidence. Ext.A5 alleges negligence on the part of the third respondent and Ext.B1 alleges negligence on the part of the fourth respondent. The statements contained in Exts.A5 and B1 would show that the accident was a head on collision. The Honourable Supreme Court in **Bijoy Kumar** **Dugar v. Bidyadhar Dutta (AIR 2006 SC 1255)** observed that when the vehicles had a head on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident. This Court in **New** **India Assurance Co. Ltd v. Pazhaniammal (2011 (3) KLT 648)** considered the evidentiary value of the Final Report filed by the police in criminal case to arrive at a conclusion as to the cause of the accident. In this decision, this Court observed that prima facie Charge Sheet filed by a M. A. C. A. Nos.2085 & 2243 of 2012 -8- police officer after due investigation can be accepted as evidence of negligence against the indictee. Also observed that, 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 Section 166 of the Motor Vehicles Act. This decision has subsequently been followed by this Court in **National Insurance Co. Ltd. v. Nirmala Balachandran [2012 (1) KLT SN 132 (C. No.141)].** In the light of the rulings of the Honourable Supreme Court as well as this Court and in the absence of any better evidence in the case, this Court is of the considered view that the accident in this case had occurred due to the equal negligence of both the drivers viz. the respondents 3 and 4. Their responsibility in the accident is fixed at 50% each. 9. I shall now consider the contention of the learned counsel for the appellant that the third respondent was not holding a badge/authorisation for driving a transport vehicle and hence, he was not competent to drive the lorry involved M. A. C. A. Nos.2085 & 2243 of 2012 -9- in the accident. The question as to whether a driver was duly licenced at the time of accident can be raised by the Insurance Company as a defence under Section 149 of the Motor Vehicles Act. But, the absence of badge/authorisation is not specifically allowed as a ground of defence which can be raised by the Insurance Company in resisting the claims. This Court has considered such a contention of the Insurance Company in **Kuruvilla v. Jijo Joseph (2013 (4) KLT 700)** and held in paragraph 38 of the judgment as follows :- “Now I shall revert to the facts of the cases involved in these appeals. Except in M.A.C.A. No.1722 of 2012, the finding entered by the Tribunals concerned is only regarding want of badge/authorisation for the driver to drive the transport/goods vehicle involved. There is also no finding that the absence of such badge/ authorisation in any way contributed to the cause of the accident. Hence, the breach cannot be said to be fundamental as well. Hence in the light of what I have stated above, that by itself cannot exonerate the insurance company from its liability to the third parties (claimants) or, give it a right of recovery of the amount from the insured. The insurers are bound to indemnify the insured. Hence in all the appeals other than in M.A.C.A. No.1722 of 2012, contention of the insurance companies either that it is not liable, or that it is entitled to recover the amount of compensation M. A. C. A. Nos.2085 & 2243 of 2012 -10- from the insured on payment of the same to the claimants cannot be accepted.” In the case on hand, neither the Tribunal entered a finding that the absence of badge/authorisation in any way contributed to the cause of the accident nor the Insurance Company made an attempt to show that the absence of such badge/authorisation, in fact, contributed to the cause of the accident. Therefore, the appellant cannot avoid their liability arising out of the Insurance Policy issued in respect of the lorry. They are bound to indemnify the second respondent, the insured. 10. This Court has already found that the accident had occurred due to equal negligence on the part of both the drivers and hence, fixed their liability at 50% each. Therefore, the first respondent is entitled to receive 50% of ₹ 26,122/- allowed by the Tribunal from the appellant and the other 50% from the fifth respondent. As far as the fourth respondent is concerned, he is entitled to 50% of 33,411/-₹ as compensation from the appellant. But, he is not entitled M. A. C. A. Nos.2085 & 2243 of 2012 -11- to receive any amount from the fifth respondent as he was found responsible to the extent of 50% for causing the accident. The first respondent and the fourth respondent are entitled to interest for their respective amounts and costs as directed by the Tribunal. These appeals are allowed in part as above. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE