The United India Insurance Co. Ltd. v. Ibrahim Badusha, Shibu and K.N. Jayarajan

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **& THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 21ST DAY OF DECEMBER 2017 / 30TH AGRAHAYANA, 1939** **MACA.No. 1048 of 2007** **O.P.(MV)NO. 759/2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR ------------** ## **APPELLANT(S)/3RD RESPONDENT IN THE O.P(MV):** **THE UNITED INDIA INSURANCE CO. LTD., KUNNAMKULAM BRANCH, REPRESENTED BY THE ASSISTANT MANAGER, OFFICE OF THE REGIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., HOSPITAL ROAD, ERNAKULAM.** **BY ADV.SRI.M.A.GEORGE** ## **RESPONDENT(S)/PETITIONER AND RESPONDENTS 1 & 2 IN THE O.P.(MV) :** **1. IBRAHIM BADUSHA, S/O. KUNHAPPA (LATE), PANANGATTAYIL HOUSE, NARANIPPUZHA, P.O. PIDAVANNUR, PONNANI TALUK.** **2. SHIBU, S/O. ISSAC, EDAPPARA HOUSE, MANNAMANGALAM AMSOM, VELLANKURI THADAM DESOM, NEAR PEECHI DAM, THRISSUR.** **3. K.N. JAYARAJAN, S/O. NARAYANAN (LATE), THOTTAKKAL HOUSE, KUTTUR, THRISSUR.** **R3 BY ADV. SRI.G.PRABHAKARAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-12-2017, ALONG WITH MACA NO.1186 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Msd.** **16.05.2018** C.K.ABDUL REHIM & SHIRCY V, JJ. ----------------------------------------------MACA. Nos. 1048 & 1186 of 2007 ----------------------------------------------Dated this the 21[st] day of December, 2017 ## JUDGMENT ## Abdul Rehim,J. Since both these appeals are arising out of a common award passed by the MACT, Tirur in OP(MV).No.759/2003 and 760/2003, we have considered these appeals together and disposed of through this common judgment. 2. The appellant in these appeals is the 3[rd] respondent before the Tribunal in both the cases. The accident in question occurred on 5.1.2003. The claimant in OP(MV).No.758/2003 was riding a motor cycle along with the claimant in other case on his pillion. At the spot of the accident, a Bus which came from the opposite direction hit on the motor cycle and both the claimants sustained injuries in the accident. The claim petitions were filed alleging negligence on the part of the driver of the Bus in causing MACA. 1048 & 1186 of 2007 2 the accident. The Tribunal found that the claimants were successful in proving the negligence on the part of the driver of the Bus. The appellant being the insurer of the Bus was held liable to pay the amount of compensation determined. The appellant is challenging the awards to the extent the Tribunal found that the accident was caused solely due to the negligence on the part of the driver of the Bus. 3. Heard; counsel for the appellants and counsel appearing for the 1[st] respondent/claimant. 4. At the first instance it is to be noted that the claimant in OP(MV).No.760/2003 against which MACA. 1186/2007 is filed, was the pillion rider travelling on the motor cycle. Even assuming, without admitting, that the rider of the motor cycle had contributed negligence in causing the accident in any manner, his claim cannot fail based on non-impleadment of the rider, owner and insurer of the motor cycle involved. As far as the claimant in OP(MV).No.759/2003 is concerned it is only a case of composite negligence. In such cases, even if the driver of MACA. 1048 & 1186 of 2007 3 both the vehicles have contributed negligence in causing the accident, both of them will be joint tortfeasors and the claimant has got an option to make the claim against any one of the joint tortfeasors. In the decision of the hon'ble Supreme Court in **Khenyei vs. New India Assurance Co.Ltd. (2015) 9 SCC 273)** it is held that, the liability in such cases is joint and several in nature and the Tribunal is not at an obligation to find the apportionment or determination of inter-se liability. Impleadment of all the joint tortfeasors are not necessary. It is held that nonimpleadment of other tortfeasors is not a defence available to reduce the compensation payable to the claimant. The apex court found that, it would not be appropriate for the Tribunal to determine the extent of liability of the drivers of two vehicles in the absence of of impleadment of other joint tortfeasor. Therefore, as far as MACA.1186/2007 is concerned the contentions raised by the appellant insurance company cannot succeed. Hence the said appeal is liable to be dismissed. MACA. 1048 & 1186 of 2007 4 5. As far as MACA.No.1048/2007 is concerned, the 1[st] respondent/claimant is the person who was riding the motor cycle. He had adduced evidence before the Tribunal by producing documents pertaining to the criminal case registered with respect to the accident in question. Ext.A1 is the copy of the FIR and Ext.A8 is the copy of the charge sheet. From the said documents it is proved before the Tribunal that, with respect to the accident the police authorities had registered a case against the driver of the bus and that, after investigation of the case he was charge sheeted for the offence of negligence in causing the accident. A Division Bench of this court in the decision in **New India Assurance Company Ltd. vs. Pazhaniammal (2011 (3) KLT 648)** held that, production of police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under section 166 of the Evidence Act. It is held that charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the inductee. If any one of the parties do not MACA. 1048 & 1186 of 2007 5 accept such charge sheet, the burden must be on such party to adduce oral evidence. In the case at hand the appellant/insurance company has not adduced any contra evidence to rebut the findings of the investigation conducted by the police, which would establish that the driver of the Bus was solely negligent in causing the accident. 6. Learned counsel appearing for the appellant had raised vehement contention pointing out that the police had charge sheeted the claimant in the case (rider of the motor cycle) alleging driving of the motor cycle without valid licence under the relevant provisions of the Motor Vehicles Act. First of all, we may observe that, such a charge sheet was not proved in evidence before the Tribunal. Secondly, even assuming that the claimant in the case was riding the motor cycle at the relevant time of the accident without holding a valid driving licence, that by itself cannot be taken as a ground for presuming negligence on the part of the rider. It remains trite law that, mere absence of valid driving licence cannot be taken as a ground for a MACA. 1048 & 1186 of 2007 6 presumption of negligence on the part of the person who was riding the vehicle. This court in the decision in **Binoj** **Antony vs. New India Assurance Company Ltd.** **2014(1) KLT 393)** held that, even the mere fact that a motor cycle was carrying two pillion riders cannot ipso facto give rise to an inference of contributory negligence, unless it is positively proved that such carrying of two pillion riders actually contributed in causing the accident. Therefore we are of the opinion that, merely based on the contention of the appellant that the claimant in the above said case was riding the motor cycle without holding a valid driving licence, cannot be accepted as a reason to hold that the said person had contributed negligence in causing the accident. 7. Lastly, it is contended by learned Standing Counsel that, Ext.A12 documents produced by the claimant is the 'Scene Mahazar' prepared by the police with respect to the criminal case registered. It is pointed out that, going by the said document it is revealed that the spot of the accident noted therein is on the wrong side of the motor cycle. This MACA. 1048 & 1186 of 2007 7 aspect coupled with the contents of Ext.B1 document (copy of M.V.I. report) would substantiate that the accident occurred when the motor cycle had proceeded through the wrong side of the road and hit on the left headlight of the bus in question, is the contention. We find that the Tribunal had discarded the said contention by observing that, merely based on the entries in the Scene Mahazar it is not possible to find that the accident had occurred due to the negligence on the part of the rider of the motor cycle. As we have already observed, the claimant in this case was successful in discharging the primary burden of proving negligence by producing the charge sheet. It was the burden of the appellant insurance company to rebut such evidence through proper and acceptable methods. If the insurance company was desirous of disputing the finding contained in the charge sheet, they could have taken appropriate steps to examine the investigating officer and to disprove the same. So also, if the appellant wanted to rely upon the contents of Ext.A12 Scene Mahazar or Ext.B1 copy of the MACA. 1048 & 1186 of 2007 8 M.V.I. Report, they could have taken appropriate steps to prove the same and to canvass the contents of the same in their favour. In the absence of any such steps, it cannot be presumed that merely because the spot of accident marked is on the wrong side of the road, it cannot be presumed that the rider of the motor cycle contributed negligence in the accident. Since the burden cast upon the appellant to disprove the primary evidence adduced by the Tribunal has not been discharged, we cannot find fault with the Tribunal in discarding such contention. Under the above mentioned circumstances, we do not find any merit in the above appeals. Both the appeals fails and the same are hereby dismissed. C.K.ABDUL REHIM, JUDGE SHIRCY V, JUDGE Pmn/ MACA. 1048 & 1186 of 2007 9