The National Insurance Co. Ltd. v. Raman Pillai, Laju Bhavanam, B. Vijayakumar and N. Rajan

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 4TH DAY OF AUGUST 2016 / 13TH SRAVANA, 1938 **MACA.No. 1687 of 2008** AGAINST THE AWARD IN O.P(M.V)NO.1012/2000 of I ADDL. MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM DATED 23-08-2007 ## **APPELLANT** /2ND RESPONDENT: THE NATIONAL INSURANCE CO. LTD., KOLLAM REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING, M.G.ROAD, KOCHI-35. BY ADV.SRI.GEORGE CHERIAN (THIRUVALLA) ## **RESPONDENTS** /CLAIMANT & RESPONDENTS 1 & 3: 1. RAMAN PILLAI, LAIJU BHAVANAM, - PALACKKAL, THEVALAKKARA, KARUNAGAPPALLY. 2. B.VIJAYAKUMAR, KULAKKUDIYIL VEEDU, - SAKTHIKULANGARA, KOLLAM. 3. N.RAJAN, THAYYIL THEKKETHARA, - PALACKKAL, THEVALAKKARA, KARUNAGAPPALLY. R1 BY ADV. SRI.C.RAJENDRAN R2 BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL R2 BY ADV. SRI.E.N.VISHNU NAMBOODIRI THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04-08-2016, ALONG WITH C.O.NO.25 OF 2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ---------------------------------- M.A.C.A.No.1687/2008 & Cross Ojection No.25/2014 in M.A.C.A.No.1687/2008 ----------------------------------Dated 4[th] August, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The captioned appeal has been preferred against the judgment and award in O.P.(MV)No.1012/2000 passed by the Motor Accidents Claims Tribunal, Kollam. The second respondent before the Tribunal, who is the insurer of the alleged offending vehicle is the appellant. The accident in question that constrained the first respondent herein/the claimant to file O.P.(MV)No.1012/2000 claiming compensation for the injuries sustained by him had occurred on 14.05.2000. The first respondent was a scooterist. He was riding his scooter bearing Reg.No.KL 2/5630 through National Highway 47. In the claim petition it was averred that the accident occurred due to the rash and negligent driving of the alleged offending vehicle, which is a bus bearing Reg.No.KLZ/5158. It is also stated therein that the said bus was coming from the opposite side and suddenly it turned to the right and hit against the scooter. In the accident, the first respondent sustained injuries and consequently he was taken to the District Hospital, Kollam and thereafter he was referred to District Hospital, Thiruvananthapuram. He underwent a major surgery and remained as an inpatient for a period of 11 months. It is in the said circumstances M.A.C.A.No.1687/2008 & C.O.No.25/2014 2 that claiming a total compensation of Rs.6 lakhs, he filed the above mentioned claim petition. 2. The Tribunal considered the documentary evidence consisting of Exts.A1 to A12 and also the oral testimonies of one Muraledharan Pillai and Thulaseedharan Nair as PWs 1 and 2 respectively on the side of the first respondent/claimant. On the side of the respondents before the Tribunal including the appellant herein no evidence, either oral or documentary was adduced. The Tribunal on appreciation of the evidence on record and the rival contentions, passed the impugned award granting a total compensation of Rs.2,71,800/- along with interest @ 7.5% per annum from the date of the petition till realization. 3. The second respondent/Insurance Company assails the said award mainly contending that the accident in question is a self invited one as it occurred when the scooter driven by the first respondent skidded and hit against the alleged offending vehicle, which was parked about 1.55 metres west from the western road margin of the road. The first respondent was riding his scooter from south to north. That apart, it is contended that the Tribunal ought not have found that the driver of the bus was negligent and the accident had occurred solely due to the negligence of the driver of the bus. The said contention was taken up by the learned Senior Counsel for the appellant on the ground that the appellant had not cared to make the driver of the vehicle as a party to the claim M.A.C.A.No.1687/2008 & C.O.No.25/2014 3 petition despite the pleadings in the written statement filed by the appellant herein to the effect that the accident had not occurred as alleged in the claim petition and it actually occurred due to the skidding of the vehicle and when it hit against the parked vehicle. To buttress the contention that for arriving at the finding of negligence on the part of the driver, it is incumbent on the claimant to implead him as a party to the claim petition and in case the claimant prefers not to implead him as a party to the claim petition, he must assign specific reason therefor, the learned senior counsel for the appellant relied on the decision of the Honourable Apex Court in **Oriental Insurance Co. Ltd.** v. **Meena Variyal and others [(2007) 5 SCC 428]** . 4. The learned counsel appearing for the first respondent resisted the contention and attempted to sustain the impugned award by contending that the Tribunal cannot be found fault with in fixing negligence on the part of the driver of the bus involved in the accident even in the absence of its driver in the array of parties. It is contended that it cannot be said that there is an inviolable position that the question of negligence could be fixed only if the driver is on the array of parties. The learned counsel further contended that even if it is found that at the time of the accident, the bus was stationary on the right side, that by itself could not be a reason to hold that negligence could not be attributed on the driver for the reason that parking a vehicle on a road carrying fast traffic M.A.C.A.No.1687/2008 & C.O.No.25/2014 4 itself is negligence. 5. We have heard the learned Senior Counsel for the appellant Sri.Geroge Cherian and the learned counsel for the first respondent Sri.C.Rajendran. 6. It is not in dispute that the first respondent sustained injuries in a motor vehicle accident. It is also not in dispute that he sustained such injuries when the scooter ridden by him at the time of the accident hit against the bus bearing Reg.No.KL Z/5158. Thus, it is evident that the first respondent sustained injuries in a motor vehicle accident, involving bus bearing Reg.No.KL Z/5158. Admittedly, the application for compensation has been filed under Section 166 of the Motor Vehicles Act. There cannot be any doubt with respect to the fact that proof of negligence on the part of the driver of the alleged offending vehicle is _sine qua non_ for maintaining an application under Section 166. In this case, admittedly, the driver of the vehicle bearing Reg.No.KL Z/5158 was not impleaded as a respondent. True that the second respondent therein/the appellant herein in their written statement specifically pleaded that the accident had not occurred in the manner narrated by the claimant in the claim petition. The contention of the appellant is that the bus involved in the accident was actually stationary and was on jack for repairing works, as is evident from the documents produced by the first respondent/claimant. The learned Senior Counsel for the appellant contended that when such M.A.C.A.No.1687/2008 & C.O.No.25/2014 5 a document was produced by the first respondent/claimant himself there cannot be any legal impediment for the appellant/respondent No.2 before the Tribunal to rely on the same to gain support of its contention. To drive home the said point, the learned Senior Counsel relied on the decision in **Oriental Insurance Company Limited** v. **Premlata Shukla and Others [(2007) 13 SCC 476]** . True that, in that decision, the Honourable Apex Court held that proof of rashness and negligence on the part of the driver of the vehicle is _sine qua non_ for maintaining an application under Section 166 of the Motor Vehicles Act. In fact, the said decision was also relied on by the learned Senior Counsel to contend that when a document was got marked by a party, the said party cannot be permitted to turn around and raise a contention that the same had not been proved or that it should not be relied upon by other party or parties. It is also contended that when such a document is marked, besides the party on whose behalf it was got marked, the opposite party can also rely on its contents. 7. In the light of the decision of the Honourable Apex Court in **Premlatha Shukla's** case (supra), we do not find any reason to repel the said contention raised by the learned Senior Counsel. In this case, evidently, Ext.A1 FIR and Ext.A2 scene mahazar and Ext.A3 copy of the AMVI report were got marked on the side of the claimant/first respondent herein. The learned Senior Counsel for the appellant relied on the said documents in the light of the aforesaid M.A.C.A.No.1687/2008 & C.O.No.25/2014 6 decision to canvass the point that those documents themselves would belie the contention raised by the claimant/first respondent herein, in the claim petition to the effect that the accident had occurred when the bus coming from north to south turned to the right without giving proper indication. 8. Ext.A1 is a document produced by the claimant/first respondent herein. The court marked it as a document on the side of the claimant. In such circumstances, he cannot be heard to contend that it can be looked into only for the purpose for which it was produced by him. In the light of the decision in **Premlata Shukla's** case (supra) there can be little doubt with respect to the position that a document which was admitted in evidence could be relied on by both sides to the extent it could be relied upon legally. In this case, Ext.A1 which is the copy of the FIR in the crime registered in connection with the accident in question at Sakthikulangara Police Station would go to show that the accident had occurred not in the manner narrated by the first respondent in the claim petition. Ext.A1 would go to show that the bus involved in the accident was parked on the road side 1.55 mtrs. west from the western tar end. It would also go to show that the bus was on jack for the purpose of effecting repairs. Ext.A2 scene mahazar would also reveal that at the time of its preparation the said vehicle was found in such condition. Ext.A3, which is the copy of the A.M.V.I. report relating the bus is also on the same lines. Thus, a scanning M.A.C.A.No.1687/2008 & C.O.No.25/2014 7 of the contents in Exts.A1 to A3 would reveal that they would certainly belie the pleadings of the first respondent-claimant in the claim petition as regards the manner in which the accident had occurred. A perusal of the pleadings of the appellant/the 2[nd] respondent before the Tribunal, as is discernible from its written statement filed before the Tribunal, would go to show that it had taken up a specific contention to the effect that the claimant had not correctly narrated the accident in the claim petition and in fact, the accident had occurred when the scooter ridden by the first respondent skidded off road and hit against the bus parked on the road margin on jack, for repairing. In the light of the decision in **Premlata Shukla's** case (supra) the appellant/2[nd] respondent was legally entitled to rely on the aforesaid documents in support of its contention taken up in the written statement. A perusal of the impugned award would reveal that the Tribunal had not considered those aspects though it was bound to take into consideration such relevant aspects especially taking into account the fact that the application was filed by the first respondent under Section 166 of the Motor Vehicles Act and in such an application the crucial question to be considered is whether or not the driver of the vehicle was negligent. The decision of the Hon'ble Apex Court in **Oriental Insurance Co. Ltd.** v. **Meena Variyal ((2007) 5 SCC 428)** would reveal that it is incorrect to say that a Tribunal on being approached with a claim petition under the Motor Vehicles Act M.A.C.A.No.1687/2008 & C.O.No.25/2014 8 should ignore all basic principles of law in determining the claim for compensation. The Apex Court held that ordinarily, a contract of insurance is a contract of indemnity and further went on to hold thus:- “When a car belonging to an owner is insured with the insurance company and it is being driven by a driver employed by the insured, when it meets with an accident, the primary liability under law for payment of compensation is that of the driver. Once the driver is liable, the owner of the vehicle becomes vicariously liable for payment of compensation. It is this vicarious liability of the owner that is indemnified by the insurance company. A third party for whose benefit the insurance is taken, is therefore entitled to show, when he moves under Section 166 of the Motor Vehicles Act, that the driver was negligent in driving the vehicle resulting in the accident; that the owner was vicariously liable and that the insurance company was bound to indemnify the owner and consequently, satisfy the award made.” Therefore, under general principles, one would expect the driver to be impleaded before an adjudication is claimed under Section 166 of the Act, as to whether a claimant before the Tribunal is entitled to get compensation for an accident occurred due to the alleged negligence of the driver concerned. After making such observations the Hon'ble Apex Court made a further observation as to why the Claims Tribunal should not insist for impleadment of the driver of the vehicle concerned when a claim petition is filed. Now, reverting back to this case, it is a fact that despite making specific averments to the effect that the accident in question had occurred solely due to the negligence on the part of the driver of the bus bearing M.A.C.A.No.1687/2008 & C.O.No.25/2014 9 Reg.No.KLZ/5158 insured with the appellant, the claimant had not cared to make the driver of the said vehicle as a party to the claim petition. It is also to be noted that even after receipt of the copy of the written statement carrying a specific averment to the effect that the accident had occurred not in the manner explained by the claimant in the claim petition whereas it occurred when the Scooter skidded off the road and hit against a stationary vehicle on jack for repairing, the driver was not impleaded. In such circumstances, the contention of the appellant to the effect that the Tribunal was not justified in finding negligence only on the part of the driver of the bus for the accident cannot be said to be wholly devoid of substance. But, the question is merely because of the failure on the part of the claimant to bring the driver as a party to the claim petition and when the documents produced by him reveals the factual position that the accident in respect of which he claimed compensation had not occurred in the manner he narrated in the claim petition whether the claim petition has to be thrown out and the claimant should be disclaimed ? We are of the considered view that when the evidence on record would reveal the fact that the claimant had actually sustained injuries in a motor vehicle accident, the mere fact that he narrated the incident in a different manner shall not be a reason to disclaim him and to reject his application especially at the appellate stage when he was awarded with compensation by the Tribunal. Certainly, in such circumstances, M.A.C.A.No.1687/2008 & C.O.No.25/2014 10 taking note of the fact that the provision for granting compensation for personal injury or death arising out of the use of a motor vehicle under the Motor Vehicles Act is a Social Welfare Legislation, we are of the considered view that while deprecating such attitude on the part of the claimant the Court has a duty to consider whether, on the given and proven facts and circumstances, he deserves to be compensated. If the answer is in the affirmative, certainly, solely on account of the fact that the accident had occurred not in a manner stated by the claimant in the claim petition or that the driver of the vehicle was not impleaded as a party the appellate court cannot topple the entire award. The court has to look into the question as to what extent the judgment impugned could be sustained. This is because in a case where the driver and owner were joint tortfeasors merely because of the non-joining of the driver the owner cannot wriggle out of the liability in respect of a claim for compensation under the Motor Vehicles Act, though he would become vicariously liable only upon a finding that the driver of his vehicle was negligent and his negligence was the cause of the accident. 9. True that, in this case, driver of the bus bearing Reg.No.KL Z/5158 that was insured with the appellant was not made a party to the claim petition. It is also true that the evidence on record produced by the first respondent-claimant himself would reveal the fact that the accident had occurred not in the manner M.A.C.A.No.1687/2008 & C.O.No.25/2014 11 explained by him in the claim petition. They would go to show that the accident had occurred when the Scooter ridden by him skidded off the road and hit against the stationary vehicle which was then on jack for repairing. We have already found that the said position obtained from evidence on record cannot be taken as a reason for interfering with the impugned award and disclaim the first respondent-claimant. Imbibing the spirit of the Welfare Legislation we are of the view that the appellate Court is still having a duty to consider the matter regarding the entitlement of compensation when once it is found that the claimant approached the Tribunal virtually after sustaining injuries in a motor vehicle accident. 10. We are of the view that the documents produced by the first respondent-claimant referred hereinbefore could be taken into account for the purpose of deciding his entitlement to compensation on another ground as well. In that context, it is only relevant to refer to sub-section (6) of Section 158 of the M.V. Act which empowers rather makes the Claims Tribunal duty bound to consider the question of granting of compensation to the victim of an accident relying on the reports and records provided by a Police Officer in respect of an accident. The aforesaid documents would go to show that the accident had occurred when the scooter ridden by the first respondent skidded off the road and hit against the bus in question which was then parked on the road side, of course, 1.55 mts. away from the western road margin on the western side. M.A.C.A.No.1687/2008 & C.O.No.25/2014 12 There is no dispute regarding the fact that the first respondent was riding his scooter from south to north at the time of the accident. In such circumstances, taking into account the fact that the bus in question was facing towards south it can only be said that it was virtually parked on the wrong side of the road margin. In this context, it is also to be noted that it cannot be said that the road margins are always meant for parking vehicles. Invariably, the road margins must be available to enable the vehicles plying through the road to take it outside the road in case of emergency to avert an accident. In other words, we are of the view that such road margins are not provided for invasion by other parties. For parking of vehicles, usually places will be provided. Essentially, it is mainly meant for use by the pedestrians and the use of the vehicles in case of contingencies. By parking a vehicle on a road side not meant for parking or not recognized as a parking place virtually, the person who parked vehicle is posing danger to the users of the road. In such circumstances, when such a vehicle parked on the road side involves in an accident the driver, owner and the insurer of the said vehicle cannot be permitted to wriggle out of the entire liability simply by contending that the vehicle was parked on the road margin. A Division Bench of this Court in **Rose Lynd** v. **Lekha (2008 (3) KLJ 293)** held that parking of vehicles on main road or on roads carrying fast traffic is prohibited and in such circumstances, when a vehicle rammed into another vehicle parked M.A.C.A.No.1687/2008 & C.O.No.25/2014 13 on the road the question of contributory negligence has to be looked into. We are of the view that this will squarely apply in a case where a vehicle was parked on the road margin which was not specifically marked as a parking place and when another vehicle rammed into it in a situation which could not be termed as a willful action from the part of the rider of that vehicle. In this case, nothing is on record to show that the place where the bus was parked at the relevant point of time was marked as a parking place. The long and short of the discussion is that having parked the vehicle on the road side which was not specifically marked for parking the vehicles, whatever be the contingency the driver of the vehicle bearing No.KL Z/5158, its owner and insurer cannot be permitted to wriggle out of their liability in respect of the accident. When the driver contributed to the accident by parking the bus on the wrong side very close to the road there is contributory negligence on his part. In such circumstances, taking into account all the aforementioned aspects we are of the view that the mere fact that the accident had not occurred in the manner explained by the first respondent-claimant and also the failure to make the driver of the said bus as a party, the claim petition seeking compensation could not have been dismissed. In fact, the Tribunal had not rejected, but entertained and granted compensation. The circumstances expatiated hereinbefore, constrained us to hold that this is an eminently fit case where we should exercise the appellate M.A.C.A.No.1687/2008 & C.O.No.25/2014 14 jurisdiction to fix the contributory negligence to do justice between the parties and pass appropriate award in exercise of the power under Order XLI Rule 33 of the Code of Civil Procedure (CPC). In the light of the decisions of the Hon'ble Apex Court in **Rameshwar Prasad** v. **Shambehari Lal Jagannath (AIR 1963 SC 1901)** and **Choudhary Sahu (Dead) by Lrs** v. **State of Bihar (1982(30) BLJR 176 (SC))** the position that said power can be exercised to do justice between the parties cannot be doubted. 11. In the circumstances explained above, we are of the view that the finding of the Tribunal that the accident had occurred solely due to the negligence on the part of the driver of the bus involved in the accident invites interference and in the circumstances which we have dealt with elaborately as above it has to be held that the first respondent had also contributed to the accident. In other words, there is contributory negligence from his part. When it is found that the accident occurred on account of collision between two vehicles and it occurred in the manner explained hereinbefore and also taking note of the fact that the Scooter was actually being ridden through its proper side when the accident occurred, we ween it fit to apportion the negligence between them 50:50. Since we are not fixing the liability on the driver individually and holding that the owner of the vehicle is vicariously liable and therefore, the Insurance Company is to indemnify the owner, we are of the view that it is unnecessary to M.A.C.A.No.1687/2008 & C.O.No.25/2014 15 order impleadment of the driver for any purpose. In such circumstances, the impugned award also calls for an interference to the extent of grant of compensation to the tune of 2,71,800/- in₹ the light of the fact that we have apportioned the negligence and fixed it among the driver of the bus as well as the rider of the scooter viz., the first respondent-claimant who is the petitioner in the cross-objection. In view of the apportionment of the contributory negligence between the first respondent and the driver of the bus involved in the accident the first respondent-claimant is only entitled to get 50% of the said award. Accordingly, it is awarded. 12. We have perused the averments in the cross objection. In the circumstances which were elaborately discussed by us and considering the heads under which compensation have been granted by the Tribunal we are of the considered view that the cross objector had failed to make out a case warranting interference by us and to make an upward modification of the compensation granted under different heads. Needless to say that the first respondentclaimant is entitled to get interest at the same rate from the date of petition till realisation for 50% of the amount already awarded by the Tribunal. The learned counsel for the appellant submitted that in compliance with the order of this Court 50% of the award amount has already been deposited. If 50% of the amount is already deposited the appellant need only to deposit the balance amount M.A.C.A.No.1687/2008 & C.O.No.25/2014 16 payable towards the interest in terms of this judgment. The appeal is allowed as above and the Cross Objection to the extent it seeks for enhancement stands dismissed. There will be no order as to costs. Sd/- **Judge** **C.T.RAVIKUMAR** Sd/- **K.P.JYOTHINDRANATH Judge** sv/TKS