High Court of KeralaSingle Judge2021-11-23Appeal allowed; direction to recover from the 2...

Shibu P. George v. Oriental Insurance Co. Ltd. & Others

Case / Petition Number:MACA NO. 573 OF 2011

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Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2021-11-23
Court Decision / Holding: The appeal is allowed. The impugned direction in OP(MV) No.129/2003 requiring the 3rd respondent insurer to recover the compensation from the appellant/2nd respondent is set aside. The court has not interfered with the finding that the 3rd respondent must pay the petitioners the compensation as per the impugned award. Execution may proceed against the 3rd respondent/insurer, if not already done. The parties shall bear their respective costs.
Final Disposition: Appeal allowed; direction to recover from the 2nd respondent set aside; liability to pay compensation remains with the insurer; execution can proceed against the insurer; costs awarded to respective parties.

Parties to the Case

Appellants / Petitioners

Shibu P. George
Mary Wo. Joseph
Vijummon P.S. @ Raman
Oriental Insurance Company Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Shaji Thomas Porkkattill
• Sri. Binu Paul
• Sri. T.V. Vinu
• P.A. Joseph

Counsels for Respondents

• Sri. George Cherian Thiruvalla
• Sri. P. Vijayakumar

Case Synopsis & Summary

This High Court of Kerala, in MACA No. 573 of 2011, hears an appeal from the Motor Accidents Claims Tribunal, Thodupuzha, related to the death of Jomon arising from a vehicle accident on 29.10.2002. The appellant/2nd respondent challenged a Tribunal order directing the 3rd respondent/insurer to pay compensation to the petitioners and permitting the 3rd respondent to recover the amount from the 2nd respondent on the ground that the jeep was used as contract carriage in breach of the insurance policy. The petitioners asserted negligence; the insurers maintained that the jeep was used for commercial carriage and the policy was violated. The Tribunal held in part in favor of the petitioners but directed recovery against the 2nd respondent, which the appeal seeks to overturn. The High Court examined Exts. A1 (FIR) and A3 (final report), finding that A3 shows the jeep carried firewood for personal use, not contract carriage, thus casting doubt on the Tribunal’s finding of contract carriage. Relying on New India Assurance Co. Ltd. v. Pazhaniammal, the court notes that production of a charge sheet can be prima facie evidence of negligence under Section 166, but the burden lies on the party to discredit it. The court allowed the appeal, set aside the recovery direction against the owner, and clarified that the petitioners may proceed with execution against the insurer for the awarded sum, with costs.

Provisions of Law Cited

Section 166 of the Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act (New India Assurance Co. Ltd. v Pazhaniammal, 2011 (3) KLT 648)
If any party does not accept such charge sheet, the burden is on such party to let in evidence and discredit the charge sheet.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the Tribunal’s direction to recover the compensation from the 2nd respondent is unsustainable in law since Ext. A3 shows the jeep was used for personal purposes (carrying firewood), not as contract carriage. The police charge sheet (Ext. A1) cannot alone establish contract carriage; the burden to discredit such a charge sheet rests on the party challenging it. The Division Bench in New India Assurance Co. Ltd. v. Pazhaniammal (2011 (3) KLT 648) held that a charge sheet can be prima facie evidence of negligence, and the burden shifts if challenged. The evidence on record does not prove contract carriage; thus the Tribunal’s direction to recover from the owner is erroneous and should be set aside, while the award against the insurer remains enforceable.

Contentions of Respondents

The respondents argue that the policy was violated because the jeep was used as a contract carriage, not a private vehicle, and thus the insurer should be exonerated or liable only to the extent policy allows. They contend that the 3rd respondent insurer remains liable for the compensation; the owner’s liability to bear the loss arises if policy breaches are established, which the Tribunal attempted to do, but the evidence is incomplete, and the insurance company should be permitted to recover in line with policy terms.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
New India Assurance Co. Ltd. v Pazhaniammal	2011 (3) KLT 648	Positive	The judgment relies on this precedent to treat the charge sheet as prima facie evidence of negligence in MV Act claims and to require the party challenging it to adduce evidence to discredit it.

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Extracted Judgment Text

Exact text extracted from official judgment records.

MACA NO. 573 OF 2011 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 23[RD] DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943 MACA NO. 573 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 129/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA, IDUKKI** ## **APPELLANT/S:** SHIBU P.GEORGE, PALAPUZHAYIL HOUSE, MANNAMKANDOM P.O., ADIMALY, IDUKKI DISTRICT. BY ADVS. SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL SRI.T.V.VINU 1 P.A.JOSEPH, S/O.ANTONY, PARAKURUMBIL HOUSE, SOUTH KATHIPPARA P.O.,, KALLARKUTTY VIA, IDUKKI DISTRICT-685562. (DIED) 2 MARY WO.JOSEPH, PARAKURUMBIL HOUSE, SOUTH KATHIPPARA P.O.,, KALLARKUTTY VIA, IDUKKI DISTRICT-685562. (DIED) 3 VIJUMON P.S. @RAMAN S/O.PICHAMUTHU, KAVUMKAL HOUSE,, SOUTH KATHIPPARA P.O., KALLARKUTTY-685562. 4 ORIENTAL INSURANCE COMPANY LTD. KOTHAMANGALAM-686691. JOBISH JOSEPH, S/O.P.A.JOSEPH, PARAKURUMBIL HOUSE, *5 1000 ACRE, ADIMALY P.O., IDUKKI -685 561 JOBY JOSEPH, S/O.PA JOSEPH, PARAKURUMBIL HOUSE, 1000 ACRE, ADIMALY PO, IDUKKI-685561 ## **RESPONDENT/S:** MACA NO. 573 OF 2011 **==> picture [7 x 9] intentionally omitted <==** *6 RESPONDENT NOS.5 AND 6 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 5 AND 6 AS PER ORDERS DATED 11.10.2021 IN IA 1/2020 IN MACA 573/2011. BY ADVS. SRI.GEORGE CHERIAN THIRUVALLA SRI.P.VIJAYAKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 573 OF 2011 3 ## **JUDGMENT** The appellant was the 2[nd] respondent in OP(MV) No.129/2003 on the file of the Motor Accidents Claims Tribunal, Thodupuzha. The respondents 1 and 2 were the petitioners and the respondents 3 and 4 in the appeal were the 1[st] respondent and 3[rd] respondent/insurer before the Tribunal. During the pendency of the appeal, the respondents 1 and 2 had expired. Their legal representatives have been impleaded as the additional respondents 5 and 6 in the appeal. The parties are, therefore, for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioners had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation on account of the death of their son, named Jomon (deceased). It was their case that, on 29.10.2002, while the deceased was returning from his work-site, the driver of a vehicle bearing registration No.KR.K. 7100 (jeep) requested the deceased to push the vehicle. As the deceased MACA NO. 573 OF 2011 4 was pushing the vehicle, the jeep overturned and fell on the deceased. He lost his life instantaneously. The petitioners contended that the accident occurred due to the negligence of the 1[st] respondent. The 2[nd] respondent was the owner and the 3[rd] respondent was the insurer of the jeep. Hence, the petitioners claimed a compensation of Rs.4,24,500/- from the respondents which was limited to Rs.4,00,000/- 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent had filed a written statement, inter alia, contending that although the jeep was a private car, the 2[nd] respondent had used it as a goods carriage vehicle. Therefore, the 2[nd] respondent had violated the insurance policy conditions. Hence, the 3[rd] respondent be exonerated of any liability. 5. The petitioners produced and marked Exts.A1 to A6. The 3[rd] respondent produced the insurance policy, which was marked as Ext.B1. MACA NO. 573 OF 2011 5 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by permitting the petitioners to recover from the 3[rd] respondent an amount of Rs.2,35,000/- with interest and cost. However, the Tribunal on the finding that the 2[nd] respondent had violated the insurance policy conditions, permitted the 3[rd] respondent to recover the compensation amount from the 2[nd] respondent. 7. Aggrieved by the direction of the Tribunal permitting the the 3[rd] respondent to recover the amount from the 2[nd] respondent, the 2[nd] respondent is in appeal. 8. Heard; Sri.Shaji Thomas, the learned counsel appearing for the appellant/2[nd] respondent and Sri.George A. Cherian, the learned counsel appearing for the 4[th] respondent/ 3[rd] respondent insurer. 9. The question that emanates for consideration in this appeal is whether the direction of the Tribunal permitting the 3[rd] respondent to recover the compensation amount from the 2[nd] respondent is sustainable in law or not. 6 MACA NO. 573 OF 2011 10. The 3[rd] respondent in its written statement had contended that although the jeep was insured as a private car, the 2[nd] respondent was using it as a contract carriage vehicle. The 3[rd] respondent has not produced any materials or let in any oral evidence to substantiate its defense. 11. The Tribunal, merely relying on Ext.A1 FIR, arrived at the conclusion that there was a violation of policy conditions and ordered recovery. The above course adopted by the Tribunal is erroneous and wrong. 12. On a perusal of Ext.A3 final report, it is seen that the 2[nd] respondent had used the jeep for carrying firewoods from his friend’s house to his residence. The carrying of the firewood for the personal use of the 2[nd] respondent can never be construed or interpreted as contract carriage. The Police have clearly found that it was only firewood that was transported in the jeep. 13. A Division Bench of this Court in **New India Assurance Co. Ltd. vs. Pazhaniammal** : [2011 (3) KLT 648] has categorically held that, production of charge sheet MACA NO. 573 OF 2011 7 is prima facie sufficient evidence of negligence for the purpose of a claim filed under Section 166 of the Motor Vehicles Act. If any party does not accept such charge sheet, the burden is on such party to let in evidence and discredit the charge sheet. 14. In the instant case other than for the bald assertion in the written statement of the 3[rd] respondent, that the 2[nd] respondent had used the vehicle for contract carriage, there is nothing on record to prove the assertion. Moreover, Ext.A3 final report proves that the 2[nd] respondent had used the vehicle only for the purpose of carrying firewoods only for his personal use. 15. In the above factual and legal matrix, I hold that the finding of the Tribunal, that the 2[nd] respondent used the jeep as contract carriage, is perverse and wrong, and only liable to be set aside. In the result, the appeal is allowed. The impugned direction in OP(MV) No.129/2003 by the Tribunal permitting the 3[rd] respondent insurer to recover the compensation MACA NO. 573 OF 2011 8 amount from the appellant/2[nd] respondent owner of the jeep is set aside. It is made clear that I have not interfered with the finding regarding the payment of compensation by the 3[rd] respondent to the petitioners as per the impugned award. Hence, there is no legal impediment for the petitioners before the Tribunal, to proceed with the execution of the impugned award as against the 3[rd] respondent/insurer, if not already done. The parties shall bear their respective costs. Sd/- **C.S.DIAS JUDGE** rkc