SHAJAHAN U.S. v. K. Sundares G Pai and The New India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 21ST DAY OF MAY 2019 / 31ST VAISAKHA, 1941** **MACA.No. 1669 of 2014** **AGAINST THE AWARD IN OP(MV)No.1441/2008 of ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL ,ERNAKULAM DATED 31-03-2014** ## **APPELLANT/PETITIONER:** **SHAJAHAN.U.S. AGED 20 YEARS S/O.SULAIMAN, URIYAM KULATH VELI HOUSE, THALIYAPARAMBU BHAGOM, PANAVALLY P.O., PANAVALLY VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.P.M.JOSHI SMT.SIJI K.PAUL** ## **RESPONDENTS/RESPONDENTS:** **1 K.SUNDARESH G PAI, S/O.GOVINDAN, M/S.K.N.G.FABRICS, NADAKAVU ROAD, CHERTHALA, ALAPPUZHA, PIN - 688 524, NOW RESIDING AT KADALIKANDATHIL HOUSE, OPP.CHERTHALA MUTHARAMMANKOVIL TEMPLE, CHERTHALA NORTH VILLAGE, ALAPPUZHA DISTRICT, PIN - 688 524. 2 THE NEW INDIA INSURANCE CO.LTD. THIRD PARTY CELL, KOTTAKKAL ARYA VAIDYASALA BUILDINGS, M.G.ROAD, ERNAKULAM, KOCHI - 16.** ## **BY ADV. SRI.RAJESH THOMAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No. 1669 of 2014 2 **C.R.** ## **MACA.No. 1669 of 2014** ## **JUDGMENT** The claimant in a proceedings for compensation under Section 166 of the Motor Vehicles Act, 1988 (the Act) before the Motor Accidents Claims Tribunal has come up in this appeal challenging the decision of the Tribunal in dismissing the claim petition. 2. The claim petition was filed alleging that on 25.05.2008, while the claimant was riding a motorcycle through the Aroor – Vyttila road from south to north with his mother on the pillion of the vehicle, a motor car owned and driven by the first respondent came from behind in a rash and negligent manner and hit him. It is also alleged by the claimant that he fell on the road on account of the impact of the hit and sustained injuries. A sum of Rs.2,00,000/- was claimed, in the circumstances, by the claimant by way of compensation in the proceedings. 3. The first respondent remained ex parte. The MACA.No. 1669 of 2014 3 second respondent, the insurer of the car, contested the claim petition contending that the accident occurred on account of the negligence of the claimant and they have, therefore, no liability. The Tribunal noticed that the case pleaded by the claimant as regards the accident is that the car driven by the first respondent came from behind and hit the claimant. According to the Tribunal, insofar as the claimant was riding the motorcycle with his mother on the pillion of the vehicle, it is impossible to have an occurrence as pleaded by the claimant. Consequently, the Tribunal dismissed the claim petition holding that the claimant who is bound to plead and prove negligence on the part of the first respondent in a case of this nature has failed to do so. As noted, the claimant is aggrieved by the said decision of the Tribunal. 4. Heard the learned counsel for the appellant as also the learned counsel for the insurer. 5. It is seen that a criminal case was registered in connection with the accident. Ext.A1 is the First Information Report in the said case. Ext.A8 is the final report/charge sheet in Ext.A1 case. Ext.A8 indicates that after due investigation, the police found that the accident occurred on account of the MACA.No. 1669 of 2014 4 negligence of the first respondent. In **New India Assurance Co. Ltd.** v. **Pazhaniammal** (2011(3) KLT 648), a Division Bench of this Court held that production of the final report/charge sheet in the criminal case is prima facie sufficient to establish negligence on the part of the driver of the offending vehicle for the purpose of an application for compensation under Section 166 of the Act. In the light of the said decision, in the absence of any evidence on the side of the first respondent and his insurer to discredit the final report/charge sheet, the Tribunal could have found negligence on the part of the first respondent soley based on the final report/charge sheet in the criminal case and could have proceeded with the matter further. The question falls for consideration, therefore, is as to whether the Tribunal was justified in dismissing the claim petition on the ground that the claimant has not established the case pleaded by him as regards the accident. 6. True, going by the scheme of the Act, compensation can be granted by the Tribunal under Section 166 of the Act only if it finds that the accident occurred on account the negligence of the driver of the vehicle. But, there is no prescription anywhere that the claimant in a proceedings under MACA.No. 1669 of 2014 5 Section 166 has to plead and prove negligence on the part of the driver of the vehicle for sustaining the claim for compensation. Of course, the Act provides for an application for compensation in the prescribed form. But, the form prescribed for the said purpose in terms of the Kerala Motor Accidents Claims Tribunals Rules, 1977 does not require the claimant to state the manner in which the accident took place nor does it require the claimant to state whether the accident took place on account of the negligence of the driver of the vehicle. Instead, the form only requires the claimant to state the various particulars required by the Tribunal to consider whether there was an accident as alleged and also whether the same occurred on account of the negligence of the driver of the vehicle. The claimant is also permitted to state such other information which according to him, are necessary or helpful for the Tribunal to dispose of the claim petition. Thus, it is clear that it is not necessary for the claimant in a proceedings under Section 166 of the Act to plead and prove the manner in which the accident took place, for sustaining the claim for compensation [See **Bimla Devi** v. **Himachal Road Transport Corporation** , (2009)13 SCC 530]. The relevant provisions of the Act being MACA.No. 1669 of 2014 6 provisions enacted to give solace to the victims of motor accidents, it is designed in such a manner as to enable the victims of motor accidents to get compensation, even without an application in the prescribed form. After the 1994 amendment, Section 158 of the Act casts a duty on the officer in charge of every police station to forward copies of the first information reports relating to motor accidents to the Motor Accidents Claims Tribunals having jurisdiction. The said provision also casts a duty on the owners of the motor vehicles involved in the accidents to forward information, if any, received from the police concerning the accident, to the Motor Accidents Claims Tribunal having jurisdiction. In terms of the amended provisions contained in Section 166 of the Act, the Tribunal is empowered to treat the information received under Section 158 as an application for compensation under the Act and grant compensation to the victims on that basis. In other words, the claim petition filed under the Act is not an adversarial lis in its traditional sense, but only a proceedings in terms of, and regulated by the provisions of the Act which is a complete code in itself [See **United India Insurance Co. Ltd.** v. **Shila Datta** , (2011) 10 SCC 509]. It is all MACA.No. 1669 of 2014 7 the more so since Section 168 the Act dealing with the procedure to be followed by the Tribunal on receipt of an application for compensation made under Section 166 provides only that the Tribunal shall hold an enquiry into the claim and may make an award. It is, therefore, clear that the nature of enquiry provided for under Section 168 of the Act is inquisitorial, in which the technicalities of adversarial proceedings would take a back seat. In other words, the approach of the Tribunal in dealing with applications for compensation under Section 166 of the Act shall be with a view to discover the true facts, namely, whether there was a motor accident and also whether the accident occurred on account the negligence of the driver of the vehicle, for it is the obligation of the Tribunal in terms of the Act to give compensation to the victims of motor accidents, notwithstanding whether there is even an application for the said purpose. If materials available on record are not sufficient for the Tribunal to discover true facts, according to me, the Tribunal cannot stop the proceedings there, but shall make an endeavour to discover the facts by calling for additional materials from the parties. 7. Reverting to the facts, true, the claimant has stated MACA.No. 1669 of 2014 8 in the claim petition that the car driven by the first respondent came in a rash and negligent manner and hit him from behind. The relevant averments in clause 28 of the claim petition read thus:- “The claimant was riding his motor cycle along with his mother from south to north through the left side of Aroor – Vyttila bypass road. The offending car came from the back side in a rash and negligent manner and hit him from behind. The claimant fell on the road with motor cycle and sustained severe injuries. The rash and negligent driving of the car by the first respondent is the only reason for the accident.” As noted, the view taken by the Tribunal is that since the claimant was riding the motorcycle with his mother on the pillion of the vehicle, it was impossible for the offending vehicle to hit him from behind. It is on the aforesaid basis, the Tribunal found that the claimant has not established negligence on the part of the first respondent. The view taken by the Tribunal is too technical. The Tribunal was proceeding as if its role is that of a referee and it has no obligation to find the truth. The materials on record would indicate that what was intended by the claimant while making a statement as extracted above is that the car driven by the first respondent came from behind and hit the motorcycle. Needless to MACA.No. 1669 of 2014 9 say, the finding rendered by the Tribunal that the claimant has not established that the accident occurred on account of the negligence of the first respondent is liable to be set aside and I do so. In the light of the decision of this court in **Pazhaniammal,** in the absence of any evidence on the side of the first respondent and his insurer to discredit the final report/charge sheet filed in the criminal case registered in connection with the accident, it is found that the accident occurred on account the negligence of the first respondent. In the result, the appeal is allowed, the impugned award is set aside and the application for compensation preferred by the claimant is remitted to the Tribunal for determining the quantum of compensation payable to him. **Sd/P.B.SURESH KUMAR, JUDGE.** DK