Yakkoob s/o Sharafil v. A.C. Lekshmanan, Selvaraj, and United India Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945** ## **MACA NO. 2003 OF 2013** **OPMV NO.1146/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL** ## **ATTINGAL** ## **APPELLANT/:** **YAKKOOB S/O.SHARAFIL,CHARUVILA VEEDU, VETTOOR P.O., VETTOOR VILLAGE.** **BY ADV SRI.K.RAVIKUMAR** ## **RESPONDENTS:** - **1 A.C.LEKSHMANAN, LEKSHMANAN DALE, PUTHENCHANTHA, VARKALA P.O.** - **2 SELVARAJ, S/O.AZHAKASWAMY ACHARI, VAYALILTHODI VEEDU, NEAR VENKULAM MARKET, EDAVA VILLAGE.** - **3 THE UNITED INDIA INSURANCE COMPANY LTD ASH - HAR COMPLEX, PALACE ROAD, ATTINGAL. BY ADVS. SRI.M.A.GEORGE SRI.JOHN JOSEPH VETTIKAD** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.2003/2013 : 2 : ## **JUDGMENT** The sole issue involved in this appeal is with respect to the contributory negligence attributed upon the appellant in respect of the accident. The claim petition was submitted by the appellant seeking compensation for the injuries sustained to him in a motor accident that occurred on 21.04.2007. 2. According to the appellant, the accident occurred while the motorcycle ridden by the appellant along Edava-Varkala Public road and when he reached a place called Venkulam junction, a tempo van bearing registration No.KL01/M/5731 driven by the 2[nd] respondent in a rash and negligent manner from a sideroad hit against the motorcycle. Consequent to the same, the appellant was thrown off, thereby sustaining grievous bodily injuries. The said tempo van was owned by the 1[st] respondent and was insured with the 3[rd] respondent. The claim petition was submitted in such circumstances. 3. The 1[st] and 3[rd] respondents contested the claim petition. The 1[st] respondent filed a written statement denying M.A.C.A. No.2003/2013 : 3 : negligence on the part of the driver of the tempo van. According to him, the accident occurred due to the negligence of the appellant himself. It was also contended that, the vehicle was insured with the 3[rd] respondent and the 2[nd] respondent was having a valid driving licence. Therefore, if at all there is any liability, that has to be indemnified by the 3[rd] respondent. 4. The 3[rd] respondent filed a written statement admitting the coverage of policy for the said vehicle. They also disputed the negligence on the part of the 2[nd] respondent, by contending that the accident occurred solely due to the negligence of the appellant. The quantum of compensation was also disputed by them. 5. To substantiate the contentions, the appellant produced Ext.A1 to A35. No evidence was adduced by the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence of the appellant and the 2[nd] respondent. Therefore, the liability was apportioned among them in equal proportions, thereby the entitlement of the appellant to get the compensation was fixed as 50% of the amount quantified as compensation. The amount fixed as M.A.C.A. No.2003/2013 : 4 : compensation was Rs.6,73,700/- and the appellant was found entitled to get an amount of Rs.3,36,850/-. The said amount was directed to be deposited by the 3[rd] respondent insurance company with interest at the rate of 9% per annum from the date of petition till realisation. This appeal is submitted by the appellant challenging the finding of the Tribunal attributing 50% contributory negligence upon him. 6. Heard, Sri.K.Ravikumar, the learned counsel appearing for the appellant, and Sri. John Joseph Vettikad, the learned counsel appearing for the 3[rd] respondent. 7. As mentioned above, the only question arises for consideration in this appeal relates to the contributory negligence found by the Tribunal. It is seen from the records that, a detailed discussion has been made by the Tribunal for arriving at the conclusion on the question of contributory negligence. A careful reading of the aforesaid observations would indicate that all the observations made by the Tribunal were mainly based on Ext.A3 scene mahazar and the Ext.A5 vehicle inspection report submitted by the Assistant Motor Vehicle Inspector. The tribunal found contributory negligence upon the appellant mainly because M.A.C.A. No.2003/2013 : 5 : of the reason that, the spot of the accident as revealed from Ext.A3 scene mahazar was a road intersection and from Ext.A5 it was found that the vehicles sustained extensive damages. Therefore, the tribunal apparently assumed that both the vehicles were at high speeds and were being ridden/driven without taking note of the conditions of the road including road intersection. However, the crucial aspect to be noticed is that, in respect of the incident, Varkkala Police registered Crime No.253/2007 and Ext.A2 is the F.I.R. After conducting an investigation, Ext.A6 final report has been filed by the Police implicating the 2[nd] respondent, the driver of the tempo van, as the accused. No contra evidence was adduced by the respondents. 8. As far as the reliance placed on the scene mahazar is concerned, it is to be noted that in **Jiju Kuruvaila v. Kunjujamma Mohan,** (2013 (3) KLT 261), the Hon'ble Supreme Court categorically observed that, a decision on the question of negligence cannot be taken, on the basis of the spot of the accident as revealed from the scene mahazar. As far as scene mahazar is concerned, it is usually prepared after the accident, showing the position of the vehicles after the accident. The same M.A.C.A. No.2003/2013 : 6 : cannot be the sole basis for deciding the question of negligence. Moreover, the scene mahazar would not show the other relevant factors, which contributed to the accident such as, the speed of the vehicles, the traffic at the relevant time, the climatic conditions and other relevant circumstances. In this case, the tribunal arrived at the conclusion that at the relevant time, both the vehicles were at excessive speed, but how such an assessment was made is not evident from the records. None of the documents produced by the parties indicate the speed of the vehicles. Presumably, the tribunal placed reliance upon the nature of the damages sustained to the vehicle for arriving at the said conclusion. However, the crucial aspect to be noticed in this regard is that, for causing such extensive damage to the vehicles, it is not necessary that both the vehicles should be at higher speed. Even if one vehicle was at higher speed, the said damages could be possible. Another aspect which formed the basis of the finding of the tribunal was that the damages sustained to the tempo van was on the left side, however on going through the specific case of the appellant it can be seen that when the appellant was proceeding through Edava – M.A.C.A. No.2003/2013 : 7 : Varkkala Public road and when he reached Venkulam junction the tempo van in an excessive speed emerged from a side road and hit against the motorcycle. Therefore, the mere fact that the damages sustained to the van was on the left side also cannot be treated as a good ground for upholding the finding of the tribunal with respect to the contributory negligence. 8. The learned Counsel for the 3[rd] respondent brought the attention of this Court to the observations made by the Hon'ble Supreme Court in **Smt. Sarla Dixit and another v. Balwant Yadav and others** [(1996) 3 SCC 179] wherein the question of negligence was decided in similar circumstances where the accident occurred due to the collision of two vehicles in a road intersection. However, the said decision would not help the 3[rd] respondent in this case in view of the fact that, in that case the eye witnesses were examined to establish the manner in which the accident occurred. On the other hand, in this case apart from the Police report, which is in favour of the appellant, there are absolutely no evidence. In this regard it is also to be noted that, in **New India Assurance Co.Ltd v, Pazhaniammal** M.A.C.A. No.2003/2013 : 8 : [2011 (3) KLT 648], a Division Bench of this Court categorically observed that, in the absence of any contra evidence the conclusions arrived at by the Police in the final report submitted by them after conducting the investigation in the crime registered in connection with the accident, could be treated as prima facie piece of evidence for adjudicating the question of negligence. In this case, as evidenced by Ext.A6 final report, the 2[nd] respondent was implicated as an accused, but yet no contra evidence was adduced by the respondents. In **Pazhaniammal** 's case, it was observed that, if any of the respondents have dispute in the findings/conclusions in the final report, it is their duty to adduce contra evidence to establish their contentions. In this case, no such steps have been taken by the respondents. Therefore, the best evidence available on record is Ext.A6 final report submitted by the Police and in the absence of the contra evidence at the instance of the respondents, the conclusions therein have to be accepted. It is also to be noted in this regard that the adjudication of a claim under Section 166 of the Motor Vehicles Act is to be done on the basis of preponderance of probabilities. Therefore, M.A.C.A. No.2003/2013 : 9 : the final report, which is the only available document showing the manner in which the accident occurred and the person responsible for the accident, has to be accepted. In such circumstances, I do not find any justification in upholding the finding of the tribunal attributing contributing negligence upon the appellant. Accordingly, the said finding is to be interfered with and the only conclusion possible is that the accident occurred due to the sole negligence of the 2[nd] respondent. In the result, this appeal is allowed. The award dated 13.06.2013 passed by the Motor Accident Claims Tribunal, Attingal, in OP(MV) No.1146/2007 is hereby set aside to the extent it was held that the appellant had contributed to the accident. It is held that the accident occurred solely due to the negligence of the 2[nd] respondent and the 1[st] and 3[rd] respondent, being the owner and insurer of the said vehicle respectively, are jointly and severally responsible for the compensation, along with the 2[nd] respondent. Since the vehicle was admittedly insured with the 3[rd] respondent, the liabilities of the 1[st] and 2[nd] respondents are to be indemnified by the 3[rd] respondent. Consequently, the 3[rd] respondent is held liable to pay the entire compensation as M.A.C.A. No.2003/2013 : 10 : determined by the tribunal, namely Rs.6,73,700/- (Rupees six lakhs seventy three thousand seven hundred only). The 3[rd] respondent shall deposit the entire amount along with interest at the rate as ordered by the tribunal and proportionate costs, within a period of three months from the date of receipt of a copy of this judgment after adjusting the amounts already deposited. **Sd/ZIYAD RAHMAN A.A. JUDGE** rpk/ncd