Subair v. K. Sameer and The National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 09TH DAY OF JANUARY 2020 / 19TH POUSHA, 1941** ## **MACA.No.1030 OF 2010** **AGAINST THE AWARD IN OP(MV)NO.1668/2002 DATED 07-02-2008 OF PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/CLAIMANT:** **SUBAIR, S/O. MOHAMMED HAJI, AGED 32, PUTHOOR HOUSE, CHALAPURAM, P.O.NADAPURAM,, KOZHIKODE DISTRICT.** **BY ADV. SMT.K.V.RASHMI** ## **RESPONDENTS/RESPONDENTS :** **1 K.SAMEER, KAVULLATHIL HOUSE, NADAPURAM POST, VADAKARA, KOZHIKODE. 2 THE NATIONAL INSURANCE CO.LTD. DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE.** **R2 BY ADV. SRI.K.H.ANSAR SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1030 OF 2010** **2** ## **JUDGMENT** The appellant is the claimant in O.P.(M.V) No.1668 of 2002 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 07.01.2002, while he was travelling as pillion rider on a motorcycle bearing registration No.KL-11/D-8277, owned by the 1[st] respondent and insured with the 2[nd] respondent. At the place of accident, the motorcycle capsized and the appellant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by its rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/- under various heads. 2. Before the Tribunal, there was no appearance for the 1[st] respondent owner. 3. The 2[nd] respondent insurer filed a written statement admitting insurance coverage of the motorcycle involved in the accident. The insurer contended that the liability is **MACA.No.1030 OF 2010** **3** subject to the terms of the policy. They raised other contentions also. 4. Before the Tribunal, Exts.A1 and A2 were marked on the side of the appellant/claimant. On the side of the respondents, the insurance policy of the motorcycle was marked as Ext.B1. 5. After considering the pleadings and materials on record, the Tribunal dismissed the claim petition. The Tribunal found that the rider of the motorcycle is not made a party to the proceedings. Without proving negligence on the part of the rider, no award under Section 166 of the Motor Vehicles Act can be passed. The policy schedule of Ext.B1 would not reveal payment of additional premium to cover the risk of pillion rider and therefore, the 2[nd] respondent insurer is not liable to indemnify the 1[st] respondent insured. Without producing the details of treatment and without proving the various aspects, it is not possible to uphold the case of the claimant. Paragraphs 5 to 7 and also the last paragraph passed by the Tribunal read thus; **MACA.No.1030 OF 2010** **4** “5. Ext.A1 is a copy of the relevant FIR. One Abdulla was riding the motor cycle. He is not a party to the proceedings. Without proving his negligence, no award could be granted u/s.166. But, R2 has not raised a defence that no such accident occurring involving the vehicle insured with them. No other vehicle is involved. 6. Substantial defence raised is that the policy will not cover the risk of the pillion rider. Ext.B1 is a copy of the policy. Policy Schedule will not reveal payment of additional premium for the risk of the pillion rider. However R2 has already paid award under section 140 of the Act. 7. Ext.A2 series are medical bills for Rs.47,934/-. Not even a copy of the wound certificate is seen in the file. A discharge summary reveals fractures of both bones middle 1/3. Non production of wound certificate causes suspicion. But R2 has no such doubt and they paid Rs.25,000/- under section 140. In view of Ext.B1, R2 has no liability to indemnify R1. Without producing details of treatment and without proving the various aspects, it is not possible to uphold the petitioner's case. However R1 is not contesting. Being so, a consolidated sum of Rs.25,000/- paid under section 140 can be adjusted by R1 and R2. In the result, petition under section 166 stands dismissed. No cost.” 6. Feeling aggrieved by the dismissal of the claim **MACA.No.1030 OF 2010** **5** petition, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 2[nd] respondent insurer. Despite service of notice, none appears for the 1[st] respondent. 8. The issue that arises for consideration in this appeal is as to whether the award passed by the Tribunal can be sustained in law. 9. In **Venugopala Panicker v. Unnikrishna Panicker and others [2015 (2) KHC 621]** , a Division Bench of this Court held that standard of proof required to prove negligence in a claim petition is different from the standard of proof required in a criminal case. In a claim petition before the Tribunal, the standard of proof is much below than what is required in a criminal case as well as in a civil case. Paragraph 18 of the said decision reads thus; “18. The Apex Court as well as this Court has held in umpteen number of cases that, the standard of proof required to prove negligence in a claims petition filed under Section 166 of the Motor Vehicles Act, 1988 is different from the standard of proof **MACA.No.1030 OF 2010** **6** required in a criminal case. In **Sherin J. Thankom v. Thankom and others (2014 (3) KLT 44)** a Division Bench of this Court, to which one among us (Anil K. Narendran, J.) was a party, held that, in deciding matters arising out of accident cases the Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a claim before the Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. Paragraphs 14 and 15 of the judgment read thus; “ **14.** In Kusum Lata and others v. Satbir and others (2011 (3) SCC 646) the Apex Court held as follows; It is well known that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. Later, in Parameshwari v. Amir Chand and others (2011 (11) SCC 635) the Apex Court reiterated that, in a road accident claim, the strict principles of proof in a criminal case are not attracted. In Parameshwari's case (supra), the Apex Court had taken note of the observation made in its earlier judgment in Bimla Devi and others v. Himachal Road Transport Corporation and others (2009 (13) SCC 530) that, the claimants were merely to establish their case on the touchstone of preponderance of probability and that **MACA.No.1030 OF 2010** **7** standard of proof beyond reasonable doubt could not have been applied. **15.** Prima facie we find that the reasoning given by the Tribunal in the impugned common award is in conflict with the principle laid down in the judgments of the Apex Court referred to above. In deciding matters arising out of accident cases the Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a claim before the Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive at or decide things necessary to be decided for awarding compensation. In such circumstances, we hold that the reasoning given by Tribunal in the impugned common award, in order to reject the claim petitions filed by the appellants are unsustainable and the said common award is liable to be set aside in these appeals.” 10. In **N.K.V. Bros. (P) Ltd v. Karumai Ammal** **[(1980) 3 SCC 457]** , the Apex Court held that, in accident cases, the Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or **MACA.No.1030 OF 2010** **8** some obscurity there. It was held that save in pain cases, culpability must be inferred from the circumstances, where it is fairly reasonable and that, the Court should not succumb to niceties, technicalities and mystic maybes. 11. In **Sunita v. Rajasthan State Road Transport Corporation [AIR 2019 SC 994]** , the Apex Court held that strict principles of rules in a criminal case will not be applicable in a claim for compensation under Section 166 of the Motor Vehicles Act, 1988 and further that, the standard to be followed in such case is one of preponderance of probability rather than one of proof beyond reasonable doubt. There is nothing in the Motor Vehicles Act to preclude citing of witness in a motor accident claim, who has not been named in the list of witnesses in the criminal case. What is essential is that the opposite party should get a fair opportunity to cross examine the concerned witness. Once that is done, it will not be open to them to complain about any prejudice caused to them. If there was any doubt to be cast on the veracity of witness, the same should have come out in cross examination. **MACA.No.1030 OF 2010** **9** 12. In **Shajahan U.S. v. Sundaresh G. Pai and another [2019 (3) KHC 412]** , this Court held that, in a proceeding under Section 166 of the Motor Vehicles Act, it is not necessary for the claimant to plead and proof the manner in which the accident took place, for sustaining the claim for compensation. In terms of the amended provisions, contained in Section 166 of the Motor Vehicles Act, the Tribunal is empowered to treat the information received under Section 158 of the Act as an application for compensation under the Act and to 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 by itself. The approach of the Tribunal in dealing with the application 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 of the negligence of the driver of the vehicle, for it is the obligation of the Tribunal in terms of **MACA.No.1030 OF 2010** **10** 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 the true fact, the Tribunal cannot stop the proceedings there, but shall make an endevour to discover the fact by calling for additional materials from parties. 13. In the instant case, the document marked as Ext.A1 is a copy of the First Information Report in Crime No.15 of 2002 of Nadapuram Police Station, Kozhikode District. As per Ext.A1, one Abdulla was the rider of the motorcycle at the time of the accident. He was not made a party to the proceedings. Along with the claim petition, the appellant produced true copy of FIR and copy of discharge summary. The discharge summary is Sl.No.2 in the list of documents. A reading of paragraph 7 of the award would also show that a copy of the discharge summary was produced before the Tribunal. As per the discharge summary, the appellant sustained fracture of both bones middle 1/3[rd] , lacerated injury outer aspect of lower third **MACA.No.1030 OF 2010** **11** and contused abrasion anterior aspect of left leg. No wound certificate was produced. 14. In case, the claim petition is bad for non-joinder of necessary parties or non production of essential documents to prove the motor accident, the injuries sustained in that accident and also the negligence on the part of the rider of the motor vehicle, the Tribunal ought to have granted an opportunity to the appellant/claimant to implead the rider of the motor vehicle and produce materials sufficient to prove the alleged accident and the negligence on the part of the rider of that vehicle. If the materials available on record are not sufficient for the Tribunal to discover the true fact, the Tribunal shall make an endeavour to discover the true fact by calling for additional materials from the parties, instead of dismissing the claim petition, in case, the Tribunal notices any suspicious circumstances. In view of the law laid down in the decisions referred to supra, the reasoning of the Tribunal in the impugned award for dismissing the claim petition cannot be sustained. **MACA.No.1030 OF 2010** **12** 15. In such circumstances, this appeal is disposed of by setting aside the award dated 07.02.2008 of the Motor Accidents Claims Tribunal, Kozhikode in O.P.(MV)No.1668 of 2002 and remanding the matter to the Tribunal for reconsideration of the matter, after affording the appellant/claimant an opportunity to implead the rider of the motorcycle and to produce necessary materials to prove the motor accident, the nature of injuries sustained and also the negligence on the part of the rider of the motorcycle. The respondents shall also be granted an opportunity to produce further materials, if any. Since the claim petition is of the year 2002, the Tribunal shall finally dispose of the matter, as expeditiously as possible, at any rate, within a period of four months from the date of production of a certified copy of this judgment. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/13/1