Rasia V.P. and others v. Satheesh Kumar and The New India Assurance Company Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 22ND DAY OF MARCH 2018 / 1ST CHAITHRA, 1940** **MACA.NO. 1384 OF 2015** **AGAINST THE AWARD IN O.P.(M.V.)NO.1634/2004 OF PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE 11.05.2009 -----------------------------** ## **APPELLANT(S)/PETITIONERS :** **-------------------------** - **1 RASIA V.P., AGED 50 YEARS, W/O.LATE SAIDALAVI, KARAYI PARAMBU HOUSE, NALLUR, POST FEROKE, KOZHIKODE-673 631.** - **2 SHAMNA P.K., AGED 29 YEARS,** - **D/O.LATE SAIDALAVI, KARAYI PARAMBU HOUSE, NALLUR, POST FEROKE, KOZHIKODE-673 631.** - **3 RASEENA P.K.,AGED 27 YEARS,** - **D/O.LATE SAIDALAVI, KARAYI PARAMBU HOUSE, NALLUR, POST FEROKE, KOZHIKODE-673 631.** - **4 HIDAYATHULLA MANSOOR P.K, AGED 23 YEARS, S/O.LATE SAIDALAVI, KARAYI PARAMBU HOUSE, NALLUR, POST FEROKE, KOZHIKODE-673 631.** - **5 PATHUMMAI,AGED 80 YEARS,** - **W/O.LATE P.K.MAMUKOYA, KARAYI PARAMBU HOUSE, NALLUR, POST FEROKE, KOZHIKODE-673 631.** **BY ADV.SMT.K.V.RASHMI** ## **RESPONDENT(S)/RESPONDENTS:** - **------------------------** **1. SATHEESH KUMAR, S/O.RAJAN, THONIPARAMBIL HOUSE, MANKURISSI (PO), MANKARA, PALAKKAD-678 613** **2. THE NEW INDIA ASSURANCE COMPANY LTD., BRANCH OFFICE, T.B.ROAD, PALAKKAD-678 001, REPRESENTED BY ITS MANAGER.** **R1 BY ADVS. SRI.V.P.REGHURAJ** **SRI.O.P.NANDAKUMAR SRI.V.SHYAM R2 BY ADV. SRI.RAJAN P.KALIYATH** **BY ADV.SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** ## **-----------------------M.A.C.A. No.1384 of 2015 ---------------------------------Dated this the 22[nd] day of March, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P. (M.V.) No.1634 of 2004 of the Principal Motor Accidents Claims Tribunal, Kozhikode by the dependants of the deceased Saidalavi. On 29.04.2004 the deceased was engaged in fitting the tank for milma diary, Kallapully, Palghat, a tempo van No.KL-9/C-4707 came in a rash and negligent manner hit against the stay wire and iron post on which he was standing as a result, he fell down and sustained serious injuries. Immediately he was removed to Medical College Hospital, Kozhikode, but he succumbed to the injuries. The deceased and legal representatives of the deceased preferred the above claim petition and the learned tribunal dismissed the claim petition. 2. In the lower court, the driver was not impleaded as a party and the owner did not contest the matter. The insurer admitted the insurance of the vehicle. Appellants did not adduce any oral evidence in the trial court. Their documents were marked as Exts.A1 to A3. ## M.A.C.A. No.1384 of 2015 2 The learned tribunal observed that the claimants failed to prove the rash and negligent act of the driver of the vehicle. The appellants were also directed to refund S.140 award given with 9% interest from the date of deposit. Paragraph 15 of the award reads as follows: “ For the above reason I hod that the petitioner have failed to prove their claim against the respondent. I also held that the public sector company was not vigilant and that fraudulent activities on the court is on higher side due to their inaction. When the accident took place out side the District, they should have applied their mind, before giving wrong signal to the court that they have no objection in granting an award. They are dealing with public fund and this is not the way expected from them. Charity should come out of one's own pocket.” 3. Learned counsel appearing for the appellant contended that the observation made by the learned tribunal is not according to the facts of the case. The deceased was a wire man in the Kerala State Electricity Board, and the accident occurred while he was engaged ## M.A.C.A. No.1384 of 2015 3 in work. They could not adduce any evidence to prove the above averments. The learned counsel seeks an opportunity to remand the case for adducing evidence before the tribunal. ## 4. Apex Court in **Jacob Mathew** v. **State of Punjab 2005 ACJ 1840 (SC)** held as follows: Negligence-- as a tort and as a crime: The term 'negligence' is used for the purpose of fastening the defendant with liability under the Civil Law and, at times, under the Criminal Law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence upto the modern times. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in Criminal Law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in Civil Law. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. In **R.** V. **Lawrence,** (1981) 1 All ER ## M.A.C.A. No.1384 of 2015 4 974 (HL), Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in **R.** v. **Caldwell** 1981 (1) All ER 961 (HL) and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warded against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being “subjective” or “objective”, and said “Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognized that there was such risk, he nevertheless goes on to do it.”. 5. Negligence means the breach of the provisions of law as also the breach of the duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs, would do or the doing of something which a prudent and reasonable man would ## M.A.C.A. No.1384 of 2015 5 not do. The negligence or the rashness would depend upon the facts of each case. In Kannan & Viyayaraghavan's Motor Vehicles Laws at page No.1692 it is stated that, the essential components of negligence are the existence of a duty to take care; the failure to attain that standard of care prescribed by the law thereby a breach of such duty and damage which is both casually connected with such breach and recognised by the law has been suffered by the complainant. 6. To establish negligence the claimant must prove that the driver did not take standard of care while driving, expected from a reasonable man. The determination of negligence or the rashness would depend upon the facts of each case. The initial burden to discharge the proof of negligence is upon the claimant. Burden of proof in a case has two distinct meanings, namely, (i) as a matter of law and pleadings, and (ii) as a matter of adducing evidence. Section 101 of the Evidence Act it deals with Law and pleading but Sec.102 says about adducing evidence. The first remains constant in a ## M.A.C.A. No.1384 of 2015 6 case but the second shifts. In a claim application, under Section 166 of the Motor Vehicles Act, 1988, the burden of proof, in the first sense, certainly lies on the claimant. If the claimant examines himself and his witness, if any, and the evidence is found acceptable, then onus shifts on the tortfeasor to prove those circumstances, which remove the assertions of the claimant. If the tortfeasor fails to prove before the Court any fact or circumstance which tends to affect the evidence led by the claimant, the claimant would be entitled to ask the Court to hold that he has established the case and on that basis to award just compensation. It would, thus, appear that the legal burden, as a matter of law and pleadings remains constant on the claimant, but the burden as a matter of adducing evidence changes from claimant to tortfeasor during trial. 7. The learned tribunal did not consider the facts of the case properly, in the circumstance, the dismissal of O.P.(M.V.) No.1634 of 2004 by the Principal Motor Accidents Claims Tribunal, Kozhikode is hereby set M.A.C.A. No.1384 of 2015 7 aside and the matter is remitted to the tribunal for fresh consideration. Appellants are directed to appear before the tribunal on 16.05.2018 and on such appearance, the learned tribunal shall record the evidence of the parties and dispose of the matter within a period of two months from the date of appearance of the parties. This appeal is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** /True Copy/ NS P.A. To Judge