SASI v. Dinesh and Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 7TH DAY OF MARCH 2017/16TH PHALGUNA, 1938** **MACA.No. 1904 of 2015 () -------------------------** **AGAINST THE AWARD IN OP(MV)NO.682/2011 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA DATED 12.08.2014** **---------------------** **APPELLANT(S)/PETITIONER: -----------------------** **SASI,AGED 44 YEARS, S/O.KELAN, RESIDING AT ANASSERY HOUSE, VADATTUPARA KARA, KUTTAMPUZHA VILLAGE, KOTHAMANGALAM.** **BY ADVS.SRI.L.RAM MOHAN SRI.M.AUBREY ABRAHAM ISAAC** **RESPONDENT(S)/RESPONDENTS:** **--------------------------** **1. DINESH,S/O.NANAPPAN, OLIPALAKKATTU HOUSE, MATHIRAPILLY M.A.COLLEGE P.O., KOTHAMANGALAM.** **2. M/S.ORIENTAL INSURANCE CO.LTD., KOTHAMANGALAM.** **R2 BY ADV. SRI.R.AJITH KUMAR (128/84) BY SMT.K.S.SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** **-----------------------M.A.C.A. No.1904 of 2015 ---------------------------------Dated this the 7[th] day of March, 2017** ## **J U D G M E N T** This appeal is preferred against the order in O.P.(M.V.) No.682 of 2011 of the Motor Accidents Claims Tribunal, Muvattupuzha by the injured. The appellant sustained injury in a motor accident on 01.12.2010 at 11.30 a.m. while he was trying to board a car, KL-44/5566 at Mathirappilly. When the appellant was trying to enter inside the car, the 1[st] respondent moved the vehicle in a rash and negligent manner, thereby the door of the vehicle hit against the right hand of the appellant and thereby he sustained serious injuries. The accident was solely due to the rash and negligent driving by the 1[st] respondent, who is the owner cum driver. In the trial court, the 2[nd] respondent insurer admitted the insurance and contended that the accident occurred due to the negligence of the appellant alone. He contended that there was inordinate delay in filing the complaint before the Judicial First Class Magistrate Court, M.A.C.A. No.1904 of 2015 2 Kothamangalam. The appellant did not adduce any oral evidence in support of his claim, but his documents were marked as Exts.A1 to A5. Exts.B1 and B2 were marked from the side of the respondents. 2. In a claim petition onus is on the claimants to prove accident and compensation cannot be awarded in absence of proof. It is true that in a summary proceedings provided under S.169 of the Motor Vehicles Act, 1988 the claimant is not expected to prove her case like in any other civil cases. But, when the accident itself is questioned by the respondents and the involvement of the motor cycle is in question, the claimant is required to prima facie show before the Court that the vehicles involved was a motorcycle and a scooter and he sustained injuries in the accident while travelling in the said motorcycle. This position has been explained in **Karnataka State Road Transport Corporation** Vs. **Smt. Laxmibai [2000 (4) KarLJ 276]** which reads as follows: It is true that in a summarily civil proceedings, claimant is not expected to prove her ## M.A.C.A. No.1904 of 2015 3 case like in any other Civil Original proceedings. But when the accident itself is question by the respondents as to the involvement of their bus in question, the claimant is required to prima facie show before the Court that the bus involved was a KSRTC bus and that the bus in which she was travelling and she sustained injuries while travelling in the said bus.” 3. It is well settled that a claimant can succeed in his claim only when he establishes that the accident had taken place on account of the negligence on the part of the driver of a motor vehicle. Where a person is proceeding just next to the pavement and a vehicle comes from the back and knocks down, the facts themselves show the negligence of the driver. It is true that ordinarily the burden of proving negligence is on the person who alleges it. However, the circumstances of a particular case may speak for themselves and show negligence on the part of the driver of a vehicle. In these circumstances it will be the duty of the driver and owner of the vehicle to disprove negligence. Halsbury's Laws of England, 2[nd] edition Vol.123 at page 167 reads thus: ## M.A.C.A. No.1904 of 2015 4 “An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence tells its own defence, the story so told being clear and unambiguous. To these case the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the defendant which if he is to succeed in his defence must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part.”. 4. In order to establish negligence, the party has to show that the driver committed the breach of his duty which resulted in injury to his person and property. Another decision in **Municipal Corporation, Delhi** v. **Subhagwanti [ 1966 ACJ 57]** their lordships of the Supreme Court while discussing this principle observed thus: “ It is true that the normal rule is that it is for the ## M.A.C.A. No.1904 of 2015 5 plaintiff to prove negligence and not for the defendant to disapprove it. But there is an exception to this rule which applies where the circumstances surrounding the thing which caused the damage are at the material time exclusively under the control or management of the defendant or his servant and the happening is such as does not occur in the ordinary course of things without negligence on the defendant's part. 5. An application for compensation arising out of an accident of the nature specified in sub-section (1) of Section 165 may be made by the person who sustained the injury or by the owner of the property or, where death has resulted from the accident, by all or any of the legal representatives of the deceased or by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. Therefore it is clear that when a person sustained injury or death arising out of the use of a motorcycle or damages to any property, the person who sustained injury is entitled to claim compensation. Where death has resulted from an accident, the legal representative of the ## M.A.C.A. No.1904 of 2015 6 deceased can also claim compensation. What is clear from the above section is that it is the primary responsibility of the claimant to prove the negligence on the part of the driver. ## 6. This Court in **K.A. Kurup** Vs. **Sukumaran Nair and Ors. [1982 ACJ 136]** held as follows: A liability can be cast on another only if he is in any wary responsible for the accident which occasioned the injury. In other words there is no scope for any absolute liability on the owner of the vehicle to compensate the injured. The provisions of the Motor Vehicles Act do not contain any statutory provision to that effect. The Act does not provide a new right, or a new remedy, to a person who is injured by an accident. The provisions of the Act do not in any way interfere with the substantive common law on the subject. It follows the claimant has to prove that opposite party used the vehicle in such a negligent way and occasioned the injury for which compensation is claimed. ## In **Mysore State Road Transport Corporation** v. **Albert Dias and other [AIR 1973 Mysore 240]** it was held that: In an action for damages on account of injuries sustained in a motor accident, the claimant must establish that the incident had taken place due to the negligence of the driver. ## M.A.C.A. No.1904 of 2015 7 ## Apex court in **Bishan Devi and Anr. Vs. Sirbaksh Singh and Ors. [1979 ACJ 496]** held as follows : The law as it stands requires that the claimant should prove that the driver of the vehicle was guilty of rash and negligent driving. The burden thus placed is very heavy and difficult to discharge by the claimant. The records of police investigation are not made available to the Tribunal. The officers who investigated the accident are seldom available to give evidence before the Claims Tribunal and assist in coming to a proper conclusion. The insurance company in quite a few cases, as in the present one, takes an unreasonable stand and raises all sorts of untenable pleas just to thwart relief to the dependants. In many of the claims it turns out to be beyond the capacity of the claimant to maintain his claim in a court of law. 7. In this case, the appellant produced Exts.A1 to A5. Ext.A1 is the FIR in Crime No.133 of 2011 of the Kothamangalam Police station, Ext.A2 is the private complaint filed before the Judicial First Class Magistrate Court-I, Kothamangalam, Ext.A3 is the scene Mahazar, Ext.A4 is the Final Report and Ext.A5 is the wound certificate which shows that the appellant sustained injury in the accident. Now the question is whether the accident occurred due to the rash and negligent driving of the vehicle or out of the use of a vehicle in a public ## M.A.C.A. No.1904 of 2015 8 place. When the owner of the vehicle or the insurance company disputed the accident the injured has to prove the accident by adducing oral evidence. The trial court failed to appreciate that position and dismissed the application. 8. In the circumstance, the finding of the Tribunal dismissing the claim is set aside and the matter is remitted to trial court for fresh consideration. Both parties are directed to appear before the Motor Accidents Claims Tribunal, Muvattupuzha on 29.05.2017 and they are at liberty to adduce fresh evidence before the tribunal. This M.A.C.A. is disposed of as above. Sd/- **P.D. RAJAN, JUDGE** NS / True Copy / P.A. To Judge