The Oriental Insurance Co. Ltd. v. Sharifa Beevi 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 4TH AUGUST 2011 / 13TH SRAVANA 1933 MACA.No. 2007 of 2005() ----------------------OPMV.673/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR .................... APPELLANT(S): APPELLANT/4TH RESPONDENT -------------------------------------- THE ORIENTAL INSURANE CO LTD., DIVISIONAL OFFIE KOLLAM, REP. BY THE ADMINISTRATE OFFICER, THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, ERNAKULAM, METRO PALACE, OPP: NORTH RAILWAY STATION, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.A.R.GEORGE RESPONDENT(S): CLAIMANTS & RESPONDENTS 1 TO 3 --------------------------------------------- 1. SHARIFA BEEVI, W/O.LATE FAZALUDEEN, CP.NO.19/1/, PUZHUMMTTIL VEEDU, KARICHIRA, MANACODE P.O., CHITHIRA, KOTTARAKKARA. 2. MUHAMMED FAHIMA, S/O.LATE MOOSAKUNJU RAWHER, DO.DO. 3. ITIYAVIRA, S/O.ABRAHAM, MANGALAM HOUSE, MANARKADU P.O., KOTTAYAM. 4. RADHAKRISHNAN, S/O.RAMAN, MANIKANTANCHIRA, KADAKKAL, KOTTARAKKARA. 5. S. SABU, S/O.P.SIVASANKARA PILLAI, KONATHU PUTHEN VEEDU, TRIKKANNAPURAM. ( **DELETED)** R5 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 29/10/09 IN I.A.NO.3052/09. ADV. SRI.G.UNNIKRISHNON FOR R1 SRI.V.G.ARUN FOR R3 SRI.T.R.HARIKUMAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R. BASANT & M.C. HARI RANI, JJ.** **------------------------------------------------M.A.C.A. No. 2007 of 2005-B ------------------------------------------------Dated this the 4[th] day of August, 2011** ## **JUDGMENT** ## **Basant,J.** The insurance company is the appellant. The claimants are the wife and the mother respectively of the deceased person who was riding his scooter on 21/5/2001. The deceased suffered injuries in the accident. He succumbed to those injuries. Against a total claim of `6,00,000/-, the Tribunal awarded only an amount of `3,37,000/- as compensation as per the details shown below: 1) Loss of dependency :Rs.3,12,000/-(3000x12x2/3x13) 2)Pain and suffering :Rs. 10,000/3)Loss of consortium :Rs. 10,000/4)Funeral expenses :Rs. 3,000/5)Transport to hospital :Rs. 2,000/-----------------Total :Rs.3,37,000/- 2. The said amount was directed to be paid along with interest at the rate of 6% per annum. 3. The claimants appear to have accepted the award. They ## **M.A.C.A. No. 2007 of 2005** -: 2 :- have not preferred any appeal or cross appeal. The insurer has come to this Court with this appeal. It is contended that the Tribunal had gone grossly wrong in attributing the responsibility of the accident to the driver of the insured vehicle. The learned counsel for the appellant contends that the Tribunal did not at all carefully evaluate the responsibility for the accident . If there were such careful evaluation, it was clear that the rider of the scooter, i.e. husband/son of the claimants was entirely responsible for the accident, contends counsel. 4. Before the court below, no oral evidence whatsoever was adduced on the question of negligence. The claimant/wife was examined as PW1. She was not a witness to the occurrence. The claimants placed reliance particularly on Ext.A6 charge sheet/final report submitted by the police. That shows that after due investigation, the police had come to the conclusion that there was culpable negligence on the part of the driver of the insured vehicle and such negligence was the cause of the accident. Ext.A6 was produced and marked. 5. In spite of the production of Ext.A6, the respondents did not choose to adduce any evidence. The claimants evidently placed reliance on Ext.A6. They did not adduce any other **M.A.C.A. No. 2007 of 2005** -: 3 :- evidence. 6. The practice has come to stay in the tribunals in the state of marking the final report/charge sheet filed by the police as proof of negligence. This aspect has been adverted to in the unreported judgment dated 20/7/2011 in M.A.C.A. No.1700 of 2008 ( **The New India Assurance Co. Ltd., v. Pazhaniammal and others).** 7. The charge sheet/final report submitted by the police unambiguously shows that the driver of the insured vehicle was responsible for the accident. 8. Tribunals cannot be prisoners of the conclusions reached by the police officers in the course of investigation. But all the same, as a ground rule it has been accepted and the practice has come to stay that charge sheets/final reports filed by the police after due investigation can be reckoned as indicative of the responsibility for the accident. In the instant case, the charge sheet was received in evidence without objection. The same was marked as Ext.A6. 9. It is necessary to note that police is also part of the criminal justice delivery system. Final reports/charge sheets filed by the police do deserve to be given the respect and authenticity ## **M.A.C.A. No. 2007 of 2005** -: 4 :- which is due to it. Certainly the charge sheets cannot be reckoned as final or conclusive; but at least it will have to be accepted that where a charge sheet is filed, received and introduced in evidence and marked without objection, the burden is on that party who wants the court not to accept the final report to adduce evidence in support of his case. In this case, even after Ext.A6 was produced and marked no contra evidence has been adduced by the respondents. 10. In the light of the view taken in the above said unreported decision, the finding of the court below on the question of responsibility for the accident cannot be doubted. 11. The learned counsel for the appellant submits that in the facts and circumstances of this case and in the light of the admitted stand taken by the claimants, it is clear that the accident had occurred when the jeep was proceeding in front and the scooter which the deceased was riding was going behind the insured vehicle. Even according to the claimants, the accident occurred when the jeep applied its brake suddenly and then the scooter which the deceased was riding hit on the rear side of the jeep. That is the allegation even in the charge sheet, the FIR and the claim petition, points out the learned counsel for the ## **M.A.C.A. No. 2007 of 2005** -: 5 :- appellant. 12. The allegation raised in the petition and in the First Information Statement is that the jeep was being driven in front and suddenly without giving any signal or caution to those proceeding behind, brake was applied by the jeep driver all on a sudden. This led to the unfortunate accident. It is the rule of the road that a person proceeding in front must definitely give signals to caution and to convey to those coming behind, intention to stop the vehicle. It cannot by any stretch of imagination be contended that a person who while driving the vehicle stops the vehicle suddenly without giving any signal or caution to those proceeding behind is not guilty of negligence. But certainly, posed with an emergency it may be necessary for any driver to apply brake suddenly. If such sudden brake is applied that by itself cannot be reckoned as negligence or rashness. However, in such a situation any reasonably prudent mind would look for the reasons for such sudden application of brakes. If there is such sudden application of brakes without any valid reason and without giving caution to those coming behind, one who is responsible for such sudden application of brakes without giving caution to those coming behind can be held to be guilty of negligence. There can ## **M.A.C.A. No. 2007 of 2005** -: 6 :- be no doubt on that aspect. 13. In this context we wanted to know whether the respondents have offered any explanation as to why the driver of the insured vehicle was obliged to apply sudden brake. We are informed that no attempt has been made to explain that conduct on the part of the driver of the insured vehicle. One proceeding behind, under law, is expected to leave a safe distance from the vehicle proceeding in front. It is a rule of caution which has to be strictly followed. A prudent driver must anticipate and foresee that one going in front may be obliged to apply sudden brake and if he applies brake such distance must be left and the one proceeding behind must proceed only at such speed that he will be able to bring his vehicle to stop without the possibility of his vehicle hitting against the one proceeding in front. In this view of the matter, it can certainly be held that with greater care on his part, the deceased driver could have avoided the accident. But we are unable to agree that that by itself can be said to constitute contributory negligence when there is no explanation whatsoever offered for the conduct of the driver of the insured vehicle applying the brake suddenly. Instances are not rare when one proceeding behind will also be able to anticipate and expect the ## **M.A.C.A. No. 2007 of 2005** -: 7 :- conduct of the one proceeding in front. If such person proceeding in front without any reason rashly and negligently applies brake all on a sudden and an unfortunate accident results the primary responsibility will certainly have to be borne by such person. His explanation will certainly have to be looked into. In the total absence of any explanation, we are of the opinion that the attempt of the driver of the insured vehicle to avoid responsibility cannot succeed. 14. The learned counsel for the appellant relying on Ext.A5 report of the A.M.V.I. and Ext.A6 charge sheet attempts to advance an argument as to the place where impact between the two vehicles had taken place. It is pointed out to us that there is an incongruity between the two documents about the precise spot of impact. Be that as it may, we do not attach much significance to that. 15. We take the view that the police final report clearly shows negligence and rashness on the part of the driver of the insured vehicle. We note that no contra evidence has been adduced by the respondents. The claimants are entitled to assume that Ext.A6 charge sheet has been accepted by all concerned without demur. The deceased was no more. The ## **M.A.C.A. No. 2007 of 2005** -: 8 :- only other person who could have tendered direct evidence on the controversy was the driver of the insured jeep. He has not been examined also. Necessary inferences will have to flow from the marking of Ext.A6 charge sheet without any objection and the conduct of the respondents not adducing any evidence. The circumstance that the respondents have offered no explanation as to why the driver of the insured vehicle was obliged to apply sudden brake does appear to us to be crucial. It is not as though the one proceeding behind will not be able to reasonably anticipate the conduct of the one proceeding in front. When there is such unexpected application of sudden brake, one proceeding behind cannot be held guilty, especially when no explanation is offered for such conduct. Contributory negligence cannot lightly be assumed against him. 16. To sum up, the circumstances that clinch the issue in this case is the marking of Ext.A6 charge sheet without objection; the non-examination of the driver of the insured vehicle and the absence of explanation even in pleadings as to why the driver of the vehicle was obliged to apply sudden brake. 17. We may in this context remind ourselves that we are living in the post Sec.140/163A Era. Groomed in the tradition of ## **M.A.C.A. No. 2007 of 2005** -: 9 :- law of torts, it is only natural that a Tribunal looks for evidence of negligence before identifying liability in a claim under Sec.166. Proof of negligence, there must still be in a case under Sec.166 of the M.V. Act though the jurisprudence relating to motor accident claims has traversed far and no fault liability has come to stay at least in cases coming under Sec.140/163A. This is not to say that the Tribunal did not look for evidence of negligence before awarding compensation under Sec.166 of the M.V. Act. Negligence there must be. But the quality of negligence and the extent of proof of negligence must be realistically understood by a Tribunal in the post Sec.140/163A Era. So reckoned, we are satisfied that the unexplained conduct of the driver of the insured vehicle applying sudden brake and the conduct of the owner, driver and insurer not adducing any evidence to explain such conduct eloquently declares actionable negligence on the part of the driver of the jeep. That can form the foundation for the award directing payment of compensation. Of course, we agree that the deceased could have avoided the accident if he were more careful. But that by itself cannot justify an allegation that he was guilty of contributory negligence. The primary act which caused the accident was on the part of the driver of the jeep and ## **M.A.C.A. No. 2007 of 2005** -: 10 :- the mere fact that the deceased could have avoided the accident if he were more careful does not persuade us to attribute contributory negligence to him. We have perused the judgment in Oriental Insurance Company v. Ponnamma (2011 (1) KLT SN 89). We are unable to agree that in the facts and circumstances of this case, the conclusion can rightly be reached that the deceased was guilty of contributory negligence. 18. We are, in these circumstances, of the opinion that the finding of negligence by the Tribunal does not warrant interference. 19. There is challenge raised only on one other ground. The learned counsel for the appellant contends that the deceased was aged above 50 years and, in these circumstances, the Tribunal should not have adopted 13 as the multiplier. Going by the decision in **Sarla Verma v. DTC** ((2009) 6 SCC 121) only 11 should have been adopted as the multiplier, contends the counsel for the appellant/insurer. The learned counsel for the respondents, on the contrary, contends that the dependent wife was aged only 49 years and if her age were taken into reckoning, 13 must have been adopted as the multiplier. The learned counsel for the respondents/claimants further submits that this is ## **M.A.C.A. No. 2007 of 2005** -: 11 :- not a ground on which the appellate court ought to invoke its jurisdiction to interfere with the impugned award The learned counsel points out that going by the electoral identity card, the deceased was aged only 46 years. The Tribunal took into account that age so disclosed. However, the learned counsel for the appellant points out that going by the date of birth shown in the driving licence the deceased was aged 50 years and 4 months, he having been born on 7/1/1951 and the accident having taken place on 21/5/2001. This means that the deceased was aged 50 years and 4 months. This is not a circumstance on which this Court can, need or ought to invoke its appellate jurisdiction to interfere with the discretion exercised by the Tribunal, points out the learned counsel for the respondents/claimants. The learned counsel further points out that 11 is the multiplier applicable going by Sarla Verma (supra) for persons of the age group 51 to 55 years. We do not attach much significance to this argument as Sarla Verma (supra) shows the age as 15 to 20, 20 to 25, 26 to 30 etc. But the intention appears to be that those above the first age given and upto the second age given must be brought under each head. Otherwise, on those above 50 but below 51 will have no multiplier available ## **M.A.C.A. No. 2007 of 2005** -: 12 :- for them. We do not attach much significance to this argument. But we accept the contention that considering the very minimal and insignificant difference in age of the deceased if the driving licence were reckoned to be sacrosanct, it is not necessary to interfere with the discretion exercised by the Tribunal on the choice of the multiplier. 20. This appeal is, in these circumstances, dismissed. ## Sd/- **R. BASANT (Judge)** **Sd/M.C. HARI RANI (Judge)** ## **Nan/** **//true copy// P.S. to Judge** # **M.A.C.A. No. 2007 of 2005** -: 13 :-