Sunil Kumar N. v. C. Umer and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 20TH DAY OF FEBRUARY 2020 / 1ST PHALGUNA, 1941** ## **MACA.No.1945 OF 2008** **AGAINST THE AWARD IN OP(MV) 474/2002 DATED 20-09-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/CLAIMANT:** **SUNIL KUMAR N., S/O.BALAN NAIR, AGED 27 YEARS, NADUVILADATH HOUSE,, ULLISSERIKUNNU, NALLALAM POST, KOZHIKODE.** **BY ADV. SMT.K.V.RASHMI** ## **RESPONDENTS/RESPONDENTS:** **1 C.UMMER, CHETTOOR HOUSE, KUNNAMANGALAM POST, KARANTHOOR, KOZHIKODE DISTRICT. 2 THE NEW INDIA ASSURANCE CO. LTD. CHEROOTTY ROAD, KOZHIKODE.** **R2 BY ADV. SRI.N.S.MOHAMMED USMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1945 OF 2008** 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.474 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 alleged to have occurred on 27.07.2001, while he was riding a motorcycle bearing registration No.KL-11/C-7518 from Vandipetta to Kozhikode. Going by the averments in the claim petition, at the place of accident, the motorcycle was hit by a lorry bearing registration No.KL-11/C7994, owned by the 1[st] respondent, driven by one K.V.Shaji and insured with the 2[nd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent driving of lorry by its driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,00,000/under various heads. 2. Before the Tribunal, the 1[st] respondent did not appear. 3. The 2[nd] respondent insurer filed written statement admitting the insurance coverage of the lorry involved in the accident; however, denying the liability to pay compensation. The **MACA.No.1945 OF 2008** 3 insurer contended that the owner and insurer of the motorcycle are necessary parties as the accident occurred due to collision of two vehicles. The insurer also contended that the appellant has not produced wound certificate. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A4 were marked on the side of the appellant/claimant. The respondents have not chosen to adduce any oral or documentary evidence. 5. After considering the pleadings and materials on record, the Tribunal dismissed the claim petition with cost of the 2[nd] respondent, mainly for the reason that the appellant has not produced the charge sheet and other documents to prove the accident. Feeling aggrieved by the award passed by the Tribunal, the appellant/claimant is before this Court in this appeal. 6. 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. 7. The issue that arises for consideration in this appeal is **MACA.No.1945 OF 2008** 4 as to whether the reasoning of the Tribunal in dismissing the claim petition filed by the appellant is sustained. 8. 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 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; **MACA.No.1945 OF 2008** 5 “ **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 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 **MACA.No.1945 OF 2008** 6 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.” ## 9. 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 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. 10. 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 **MACA.No.1945 OF 2008** 7 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. 11. Along with I.A.No.3493 of 2015, the appellant has produced Annexure A final report dated 10.09.2001 in Crime No.1047/2001 of City Traffic Police Station, Kozhikode, which was filed before the Judicial First Class Magistrate Court-IV, as per which the driver of the lorry was charge sheeted by the Police. The document produced as Annexure-B is stated to be the accident register cum wound certificate. 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 **MACA.No.1945 OF 2008** 8 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 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 view of the law laid down in the decisions referred to supra, the reasoning of the Tribunal in dismissing the claim petition filed by the appellant/claimant cannot be sustained. In such circumstances, this appeal is disposed of by setting aside the award dated 20.09.2007 of the Principal Motor Accidents Claims **MACA.No.1945 OF 2008** 9 Tribunal, Kozhikode in O.P.(MV)No.474 of 2002 and directing the Tribunal to reconsider the matter, after affording an opportunity to both sides to adduce further evidence. The appellant/claimant shall file an application before the Tribunal to implead the driver of the lorry K.V.Shaji as additional respondent. The appellant/claimant shall produce a certified copy of the final report in Crime No.1047/2001 of City Traffic Police Station, Kozhikode before the Tribunal. Both parties shall appear before the Tribunal on **18.03.2020** . 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 appearance of the parties. The Registry shall immediately return LCR to the Tribunal. ## **Sd/-** ## **ANIL K.NARENDRAN** jv ## **JUDGE** **MACA.No.1945 OF 2008** 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE A** **TRUE COPY OF THE FINAL REPORT DATED 10.09.2001 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, KOZHIKODE** **ANNEXURE B** **TRUE COPY OF THE ACCIDENT CUM WOUND CERTIFICATE NO.91, DATED 27.07.2001**