United India Insurance Co. Ltd. v. Rajendran and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941** ## **MACA.No.1483 OF 2015(E)** **AGAINST THE AWARD IN OP(MV)No. 371/2011 DATED 10-07-2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM** ## **APPELLANT/6TH RESPONDENT:** **UNITED INDIA INSURANCE CO.LTD, BRANCH OFFICE, PEECHI COMPLEX, CALICUT ROAD, PERINTALMANNA P.O., MALAPPURAM DISTRICT.** **BY ADV. SRI.P.V.JYOTHI PRASAD** ## **RESPONDENTS/PETITIONERS AND RESPONDENTS 1 TO 5:** |**1**|**RAJENDRAN,**| |---|---| ||**AGED 53 YEARS,**| ||**S/O. VISWANNATHA MENON,**| ||**HUSBAN OF DECEASED PRASANNA,**| ||**RESIDING AT AKSHAYA,**| ||**CHERPULASSERI - 679503,**| ||**OTTAPPALAM, PALAKKAD DISTRICT.**| |**2**|**GREESHMA RAJENDRAN,**| ||**AGED 20 YEARS,**| ||**D/O. DECEASED PRASANNA,**| ||**RESIDING AT AKSHAYA,**| ||**CHERPULASSERI - 679 503,**| ||**OTTAPPALAM, PALAKKAD DISTRICT.**| ||**1ST AND 2ND RESPONDENTS ARE**| ||**REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER**| ||**KESAVANKUTTY,**| ||**AGED 46 YEARS,**| ||**S/O. K.P. KESAVA KURUP,**| ||**AKSHAYA,**| ||**CHERPULASSERI - 679 503,**| ||**OTTAPPALAM, PALAKKAD DISTRICT.**| MACA No.1483 of 2015(E) 2 **3 PADMA K.T, AGED 73 YEARS, W/O. PADMANABHAN, SUNDARALAYAM, ANGADIPURAM - 679 322, MALAPPURAM DISTRICT.** - **4 * SHAFEEK, AGED 35 YEARS, S/O MUHAMMEDKUTTY, K. THODI HOUSED, PUTHAHANGADI, ANGADIPURAM P.O.-679 322, MALAPPURAM DISTRICT. [DELETED]** - **5 * SAKEER HUSSAIN, S/O.BEERANKUTTY HAJI, PULICKAL HOUSE, CHATTIPARAMBA POST, PERINTALMANNA - 679 322, MALAPPURAM DISTRICT. [DELETED]** - **6 THE ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, JASEELA COMPLEX, BYPASS JUNCTION, NILAMBUR ROAD, MANJERI - 676 121, MALAPPURAM.** - **7 K.T. KRISHNAPRASAD, S/O. C.PADMANABHAN, SUNDARALAYAM, ANGADIPURAM P.O.- 679 322, MALAPPURAM DISTRICT.** - **8 HARIPRASAD, S/O. C.PADMANABHAN, SUNDARALAYAM, ANGADIPURAM P.O. - 679 322, MALAPPURAM DISTRICT.** ***(RESPONDENTS 4 AND 5 ARE DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT AS PER THE ORDER DATED 05/12/2019 IN IA 1/2019 IN MACA NO. 1483/2015)** **BY ADV. SRI.P.JAYARAM** MACA No.1483 of 2015(E) 3 ## **BY ADV. SRI.V.P.K.PANICKER** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.1483 of 2015(E) 4 ## **JUDGMENT** The appellant is the 6[th] respondent insurer in O.P.(MV)No.371 of 2011 on the file of the Motor Accidents Claims Tribunal, Ottapalam, a claim petition filed by respondents 1 to 3 under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the death of one Prasanna, wife of the 1[st] respondent, mother of the 2[nd] respondent and daughter of the 3[rd] respondent, in a motor accident which occurred on 05.08.2010, while she was travelling as a pillion rider on a motorcycle bearing registration No.KL-10/R-9905 ridden by the 7[th] respondent, owned by the 8[th] respondent and insured with the appellant insurer. At the place of accident, the motorcycle was hit by a bus bearing registration No.KL-10/P-9016, driven by the 4[th] respondent, owned by the 5[th] respondent and insured with the 6[th] respondent. In the accident, she sustained fatal injuries, who succumbed to the injuries on the way to hospital. Alleging that the accident occurred due to rash and negligent driving of the bus by its driver, claim petition was filed before the Tribunal, claiming a total compensation of Rs.10,50,000/- under various heads. 2. Before the Tribunal, the owner and driver of the bus filed joint written statement denying negligence alleged against MACA No.1483 of 2015(E) 5 the driver of the bus. They contended that the accident occurred due to the rash and negligent riding of motorcycle by its rider. The 6[th] respondent herein filed written statement admitting the policy coverage of the bus involved in the accident; however, denying negligence alleged against its driver. The insurer pointed out that, as per scene mahazar, the bus was proceeding from west to east and the motorcycle was proceeding from east to west. The spot of accident is 4.10 meters from the southern tar end, towards north, and the total width of the road is 6.80 meters. Therefore, the accident occurred due to the rash and negligent riding of the motorcycle by its rider. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition and it was contended that the compensation claimed is highly excessive. 3. The owner and rider of the motorcycle remained absent and they were set ex parte. The appellant insurer filed written statement admitting insurance coverage of the motorcycle involved in the accident; however, denying negligence alleged against its rider. The insurer contended that the accident occurred due to the rash and negligent driving of bus by its driver. 4. Before the Tribunal, Exts.A1 to A17 were marked on the side of the claimants. On the side of the respondents, the scene MACA No.1483 of 2015(E) 6 mahazar was marked as Ext.B1. The Investigating Officer who prepared the scene mahazar was examined as RW1. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of the motorcycle by the its rider. Since insurance coverage of the motorcycle was not in dispute, the appellant insurer was held liable to indemnify the insured. The Tribunal exonerated the insurer of the bus from the liability. Under various heads, the Tribunal awarded a total compensation of Rs.7,55,000/-, together with interest at the rate 9% per annum from the date of petition, i.e., from 27.05.2011, till realisation, with proportionate cost and directed the appellant insurer to satisfy the award. 6. Challenging the finding of the Tribunal on the question of negligence, the appellant insurer is before this Court in this appeal. 7. Heard the learned Standing counsel for the appellant insurer of the motorcycle and also the learned Standing Counsel for the 6[th] respondent insurer of the bus. The learned Standing Counsel for the appellant insurer would contend that, the Tribunal went wrong in fully exonerating the 6[th] respondent insurer from MACA No.1483 of 2015(E) 7 the liability to pay compensation. 8. The document marked as Ext.A5 is the charge sheet in Crime No.836 of 2010 of Perinthalmanna Police Station registered in connection with the motor accident in question. The police, after investigation, charge sheeted the driver of the bus for an offence punishable under Section 279 and Section 304A of the Indian Penal Code, 1860. 9. In **New India Assurance Company Ltd. v. Pazhaniammal and others [2011 (3) KHC 595]** a Division Bench of this Court held that, as a general rule it can safely be accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. If any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunal should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor MACA No.1483 of 2015(E) 8 Vehicles Act. Wherever, on the facts of a given case, the Tribunal feels that the police charge sheet does not satisfy its judicial conscience, the Tribunal can record that the charge sheet cannot be accepted and can call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged negligence. In such a case, the issue of negligence must be decided on the other evidence, ignoring the charge sheet. Paragraphs 7 and 8 of the said decision read thus; “7. In this context we feel it appropriate to refer to the practice adopted by many Tribunals in the State. Wherever a crime has been registered in respect of the accident and the investigation has culminated in the filing of a charge sheet by the police, such charge sheet is filed and the same is reckoned as sufficient to establish negligence on the part of the indictee. The practice has not received formal judicial approval and hence some Tribunals insist on oral evidence in support of negligence invariably. This consumes a lot of judicial time and the heavily over worked Tribunal spends its time on unnecessary oral evidence of negligence. We would certainly not want the Tribunals to be prisoners of the conclusions of police officers. If the Tribunal finds it suspicious, it can insist for better evidence. But as a general rule it can safely be accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. A system cannot feed itself on a regular diet of distrust of the police. Prima facie, charge sheet filed by a MACA No.1483 of 2015(E) 9 police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunals should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act. We mean to say that on production of such charge sheet the shifting of burden must take place. It is not as though we are not conscious of the dangers and pit falls involved in such an approach. But we feel that adoption and recognition of such practice would help to reduce the length of the long queue for justice before the Tribunals. The judicial recognition of the practice will help the Tribunals to ensure the optimum use of judicial time at their disposal for productive ventures. 8. We do not intend to say that collusive charge sheets need be accepted. Wherever on the facts of a given case the Tribunals feel that the police charge sheet does not satisfy their judicial conscience, the Tribunals can record that the charge sheet cannot be accepted and can call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged negligence. In such a case, the issue of negligence must be decided on the other evidence, ignoring the charge sheet.” 10. The document marked as Ext.A2/B1 is the scene MACA No.1483 of 2015(E) 10 mahazar in Crime No.836 of 2010 of Perinthalmanna Police Station. The accident occurred on 15.08.2010 at 10.15 am and the scene mahazar was prepared on the very same day at 4.00pm. The accident occurred at Cherakkaparamba, Cholakulam on Kottakkal-Angadipuram road. As per the scene mahazar, at the place of occurrence, Kottakkal-Angadipuram road lies in east-west direction. The bus was going from west to east and the motorcycle was coming from east to west. The tarred road at the place of occurrence has a width of 6.8m. The place of occurrence is 4.10m towards north from the southern tarred extremity of the road. As per Ext.A13 AMVI report, the left side footrest of the motorcycle was found bended. No other serious damage was caused to the motorcycle. As per A10 AMVI report, the front right bumper of the bus was found dented and damaged. Ext.A2/B1 scene mahazar was marked through RW1, who was working as Assistant Sub Inspector of Police at Perinthalmanna Police Station, at the time of accident. The scene mahazar was prepared by RW1. RW1 has deposed that he himself had conducted the investigation and filed Ext.A5 charge sheet against the driver of the bus. Mainly relying on the oral testimony of RW1, the Tribunal arrived at a conclusion that the accident occurred solely due to the rash and negligent MACA No.1483 of 2015(E) 11 riding of motorcycle by its rider. 11. The owner and rider of the motorcycle and also the appellant insurer were not in the party array, when RW1 was examined. They were impleaded as supplemental respondents in the claim petition, subsequently, in view of the contention raised by the owner, driver and the insurer of the bus that the accident occurred solely due to the rash and negligent riding of the motorcycle by its rider. After the filing of written statement, the appellant insurer filed I.A.No.3386 of 2013 in order to cross examine RW1. The said petition was allowed. The learned Standing Counsel for the appellant insurer would point out that, though the Tribunal issued summons to RW1, he could not be brought before the Tribunal since he has already retired from service and was bedridden in the hose of his son. 12. In **Jiju Kurivila v. Kunjujamma Mohan [(2013) 9 SCC 166]** the Apex Court held that, the mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. depends on number of factors like speed of vehicles, intensity of MACA No.1483 of 2015(E) 12 collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual. 13. In view of the law laid down in **Pazhaniammal** , the production of Ext.A5 charge sheet filed in Crime No.836 of 2010 of Perinthalmanna Police Station, registered in connection with the motor accident in question, in which the driver of the bus was charge sheeted for an offence punishable under Section 279 and Section 304A of the Indian Penal Code, is prima facie sufficient evidence of negligence on his part, for the purpose of a claim under Section 166 of the Motor Vehicles Act. RW1, who was part of that investigation, prepared the scene mahazar. Admittedly, RW1 is not an occurrence witness. In view of the law laid down in **Jiju Kurivila** the mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. The MACA No.1483 of 2015(E) 13 oral testimony of RW1 is not at all sufficient to arrive at a conclusion that the accident occurred occurred solely due to the rash and negligent riding of the motorcycle by its rider. As rightly contended by the appellant insurer, in the absence of any evidence to the contra, the Tribunal went wrong in fully exonerating the 6[th] respondent insurer of the bus from the liability to pay compensation. Considering the nature of damage caused to both the vehicles and other attendant circumstances, this Court finds that the liability to pay compensation can be fixed on the appellant insurer and the 6[th] respondent insurer in the ratio 50:50, instead of fully exonerating the appellant insurer, thereby fixing negligence on the rider of the scooter and the driver of the bus in the ratio 50:50. 14. Accordingly, this appeal is disposed of by fixing negligence on the rider of the scooter and the driver of the bus in the ratio 50:50. Consequently, the liability to pay compensation is fixed on the appellant insurer and the 6[th] respondent insurer in the ratio 50:50. The impugned award of the Tribunal is modified to the above extent. 15, The appellant insurer of the motorcycle and the 6[th] respondent insurer of the bus shall satisfy the total compensation MACA No.1483 of 2015(E) 14 awarded by the Tribunal in the ratio 50:50 together with interest and proportionate cost, within one month from the date of receipt of a certified copy of this judgment. The disbursement of the amount of compensation to the claimants shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. The claimants shall provide their Bank account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the appellant insurer and the 6[th] respondent insurer, within two weeks from the date of receipt of a certified copy of this judgment. No order as to costs. **Sd/-** **ANIL K. NARENDRAN** **JUDGE** MIN