The New India Assurance Company Ltd v Beena and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933 MACA.No. 1331 of 2011() ----------------------OPMV.1152/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT/RESPONDENT NO.3 -------------- THE NEW INDIA ASSURANCE COMPANY LTD EAST COST CHAMBERS, IST FLOOR G.N.CHETTY ROAD, T.NAGAR CHENNAI REPRESENTED BY ITS MANAGER. BY ADV. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN RESPONDENTS: --------------- 1. BEENA, W/O.LATE THOMAS PORATHOOR HOUSE, P.O.ADAT, THRISSUR 680 554. 2. OUSEPH, S/O.PORINCHU, PORATHOOR HOUSE, P.O.ADAT, THRISSUR 680 554. 3. MARY, W/O.OUSEPH PORATHOOR HOUSE, P.O.ADAT, THRISSUR 680 554. 4. PRASAD,S/O.K.V.PUSHPAN KARUNMANPARAMBIL HOUSE, P.O.PUZHAKKAL, MUTHUVARA THRISSUR 680 553. 5. DAVIS, S/O.PYLOTH NEELAMKAVIL HOUSE, P.O.KUTOOR, VIYYUR THRISSUR 680 001. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.1331 of 2011 ---------------------------------------Dated this the 18[th] day of August 2011 ## **J U D G M E N T** ## **R.BASANT,J** Did the tribunal go wrong in acting upon Ext.A2 final report to conclude that the accident had taken place on account of the negligence on the part of the driver of the insured vehicle? This is the only question that arises for consideration in this appeal filed by the insurer of the vehicle involved in the accident. 2. Wife aged 19 years and parents aged 58 years and 54 years of the deceased who was, at the relevant time, riding a motor cycle are the claimants. There was an accident. The insured vehicle, a bus and the motor cycle which the deceased was riding were involved in the accident. According to the claimants, the accident occurred solely on account of the culpable negligence on the part of the driver of the insured vehicle. The driver and owner of the insured vehicle remained ex parte. Insurance Company, after taking the requisite permission under Section 170 of the Motor Vehicles Act, contested the claim on all grounds. 2 M.A.C.A.No.1331 of 2011 3. Inter alia, it was contended that the accident had taken place not on account of any negligence on the part of the driver of the insured vehicle but solely on account of the negligence of the deceased. Parties went to trial on these contentions. Eye witness was examined as PW1 by the claimants. His evidence indicated that negligence was on the part of the driver of the insured vehicle. In addition to that, the claimants have produced Ext.A2 final report/charge sheet filed by the police which reveals that the police, after due investigation, had come to the conclusion that the driver of the insured vehicle was culpably negligent and rash and that such negligence and rashness had caused the accident. In spite of Ext.A2 final report, the claimants felt persuaded to examine PW1, an eye witness to the occurrence. 4. The tribunal accepted and acted upon Ext.A2 final report as also the oral evidence of PW1, an eye witness. Accordingly, the blame for the accident was entirely placed at the doors of the driver of the insured vehicle and owner, driver and insurer of the bus were directed to pay the entire amount of compensation. On the quantum of compensation awarded, no challenge is raised in this appeal. 3 M.A.C.A.No.1331 of 2011 5. We have heard the learned counsel for the appellant in detail. The learned counsel for the appellant assails the finding of the tribunal on the question of negligence. This is the short contention raised before us. 6. This Court has have already adverted to the need to prove negligence in a claim under Section 166 of the M.V.Act in the unreported decision in **The New India Assurance Company Ltd. v. Pazhaniammal and others [M.A.C.A No.1700 of 2008 dated 20/07/2011** . The foundation of liability in a claim under Section 166 of the Act even today is the failure to take care. Law may have marched forward and even in this era of Section 140 and 163A of the M.V.Act, though it may sound to be incongruent, there can be no doubt that negligence continues to be the foundation of liability in a claim under Section 166 of the M.V.Act. The relevant provisions under Sections 166 and 168 reveal that a more expeditious and inexpensive forum following simple procedure is provided for settling claims founded on the law of torts and proof of negligence. There can be no doubt on this aspect. But the amount of negligence that ought to be proved and the nature of proof required to substantiate the plea of negligence must 4 M.A.C.A.No.1331 of 2011 certainly be understood realistically in this era, where no fault liability has taken deep roots in the legal system. We are not, for a moment, of the opinion that negligence need not be proved. It must be proved. But, any court would be realistic while considering the extent and nature of proof that is required in a claim under Section 166 of the M.V.Act. 7. This aspect has been adverted to in detail in **The New India Assurance Company Ltd. v. Pazhaniammal and others [M.A.C.A No.1700 of 2008 dated 20/07/2011.** The Bench have taken note of the fact that a lot of time of the tribunals are consumed in an elaborate evidence on the question of negligence. The Bench had taken note of the procedure that has come to stay in claims under Section 166 of the M.V.Act where final report/charge sheets filed by the police raising indictment against a driver is reckoned as sufficient proof for the purpose of a claim under Section 166 of the M.V.Act in the absence of other materials. The Bench has taken care to express a word of caution that the tribunals shall not be prisoners of the conclusions of the investigating police officers. That aspect of the matter has been dealt with in detail. The view has been that atleast on the question of shifting the burden, the final reports 5 M.A.C.A.No.1331 of 2011 filed by the police can be reckoned as relevant. This is also a case where the police, after due investigation, has come to the conclusion that the driver of the insured vehicle was culpably negligent and he was indicted. No contra evidence is adduced by the respondents. In spite of that, we find that PW1, an eye witness has been examined by the claimants. No contra evidence is adduced by the respondents even after PW1 was examined. The evidence of PW1, if accepted, is in tandem with Ext.A2 final report and indicates that the accident had occurred due to the negligence of the driver of the insured vehicle. Very interestingly and surprisingly, no contra evidence has been adduced by the respondents even after Ext.A2 was marked and PW1 was examined in support of the case of the claimants. The deceased, who was certainly a witness to the accident, cannot be examined. The best other person who could have tendered evidence is the driver of the insured vehicle. He has not been cited or examined at all. An attitude with doubt, distrust and suspicion against a final report submitted by the police, we are certainly of the view, is not warranted. It cannot be forgotten that the police machinery is also part of the justice delivery system in the country. Unless satisfactory reasons are there, 6 M.A.C.A.No.1331 of 2011 courts need not adopt an attitude of suspicion and distrust against police reports when it comes to the claim and proof of negligence in petitions filed under Section 166 of the M.V.Act. We are eminently satisfied that sufficient materials are placed before the tribunal to come to a safe conclusion that there was negligence on the part of the driver of the insured vehicle. In the total absence of any contra evidence, we are satisfied that the conclusion of the tribunal need not be disturbed by us invoking our appellate jurisdiction under Section 173 of the M.V.Act. 8. The argument that the police official has not been examined in court is of no avail as we are certainly of the opinion that there is urgent and eminent necessity to reduce long queue for justice before the Motor Accident Claim Tribunals. Insistence on ritualistic examination of police officers to prove the conclusions reached in the final reports may be counter productive and would lead to deprivation of opportunity for the tribunals to make optimum use of the judicial time available for their disposal. The learned counsel for the appellant contends that the evidence of PW1 as also Ext.A2 final report must be discarded in the light of Ext.A3 scene mahazer produced and 7 M.A.C.A.No.1331 of 2011 proved by the claimants themselves. The learned counsel for the appellant builds up an argument on the basis of the position of vehicles and the identification of the spot of occurrence revealed from Ext.A3 scene mahazer. That would knock the bottom out of the claim of PW1 and the conclusion in Ext.A2 final report that the accident occurred on the wrong side of the road (right side of the road) of the insured vehicle, contends the learned counsel. 9. If technicality were to be met with technicality, we can certainly say that Ext.A3 scene mahazer has also not been proved satisfactorily. If Ext.A2 final report cannot be accepted, certainly then Ext.A3 scene mahazer cannot also be taken judicial notice of. Suffice it to say that, Ext.A3 has also not been proved in accordance with law and that cannot certainly be a reason to discard the oral evidence of PW1. Even the contents of Ext.A3, we must certainly hold, is insufficient to persuade a tribunal to throw away the oral evidence of PW1. Suffice it to say that, we are of the opinion that oral evidence of PW1 read along with Ext.A2 is sufficient to afford to the court the assurance that the accident had taken place on account of actionable negligence on the part of the driver of the insured vehicle. In the total absence of any other material, the tribunal 8 M.A.C.A.No.1331 of 2011 cannot be found fault with for not coming to the conclusion that there was any contributory negligence on the part of the deceased. 10. We must note that as indicated in **Pazhaniammal** (Supra) **,** the tribunal has not expressed any reservation on the acceptability of the final report. We do further note that in spite of the marking of Ext.A2 and the examination of PW1, respondents have not chosen to adduce any evidence to indicate that the driver of the insured vehicle was not responsible or that the deceased rider of the motor cycle had, in any way, contributed to the accident. In these circumstances, we are of the view that the finding of the tribunal on the question of negligence need not be disturbed. 11. This appeal is, in these circumstances, dismissed in limini. ## **(R.BASANT, JUDGE)** ## **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.1331 of 2011 9 M.A.C.A.No.1331 of 2011 10 11 M.A.C.A.No.1331 of 2011 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010