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HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO
M.A.C.M.A. No.531 OF 2015
JUDGMENT:
1. Aggrieved by the judgment dated 26.09.2011 in M.V.O.P. No. 94 of 2010 passed by the Chairman, Motor Accidents Claims Tribunal- cum-II Additional District Judge, Ongole, The New India Assurance Co.Ltd, represented by its Branch manager, the 3rd respondent, preferred this appeal questioning award, the findings and observations of the Tribunal.
2. For the sake of convenience, hereinafter, the parties will be referred to as per their rankings in the M.V.O.P.
3. The claimants filed a claim petition U/s 166 of the Motor Vehicles Act, 1988, claiming compensation for the death of Neelam Kishore, who died in a Motor vehicle accident on 05.07.2009.
4. The petitioners of the parents of the deceased. He was aged about 16 years old as of the date of the accident. He completed the 10th class.
5. The claimant's case is that on 05.07.2009 in the morning hours, the deceased, along with others, was going in an auto bearing no. A.P. 27 X 8210. At that time, the driver of the lorry, i.e., 1st respondent bearing No. A.P. 24 V 8989 ( hereinafter referred to as offending 2 vehicle) drove it in a rash and negligent manner at high speed and hit that Auto, as a result of which the accident occurred and the deceased and some others died.
6. The 1st respondent is the driver; the 2nd respondent is the owner of the said lorry bearing No. A.P. 24 8989, the 3rd respondent is the insurance company insured with the 3rd respondent under a valid policy. The 4th respondent is the owner cum driver of Auto bearing No. A.P. 27 x 8210, and the 5th respondent is the insurance company.
7. Respondents 1 and 2 remained exparte.
8. The 3rd respondent filed a written statement stating as follows:
9. The petitioners, the deceased's parents, are not dependent on him. The deceased and 13 others boarded the Auto exceeding the vehicle's capacity by violating the permit issued under the Motor Vehicles Act. The driver of the Auto did not possess a valid driving license to drive the same. He could not control the Auto while going south to north on the eastern side of the road in the wrong direction and hit the lorry, which was going on the left side margin north to south in the correct direction, and caused the accident. As per the charge sheet, both vehicles driver's are accused.
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10. The 4th respondent, the driver cum owner of Auto bearing No. A.P. 27 X 8210 and the 5th respondent insurer of the Auto filed their separate written statement contending that there was no negligence on the part of the driver cum owner of the Auto and the negligence was on the part of the 1st respondent.
11. Based on the pleadings, the Tribunal framed appropriate issues. During the trial, P.Ws.1 and 2 got examined and marked Exs.A.1 to A. 5 on behalf of the claimants. R.W's.1 and 2 were examined on behalf of the respondents, and the Ex B1 policy got marked.
12. On appreciation of the oral and documentary evidence, the Tribunal held that the accident took place due to the negligence of the driver of the offending vehicle, i.e., the lorry. Respondents 1 to 3 are jointly and severally liable to pay the compensation and awarded an amount of Rs.1,70,000/- with interest @ 9% per annum. The petition against the 4th and 5th respondents is dismissed.
13. Heard the learned Counsel of both parties.
14. Learned Counsel for the appellant /1st respondent contends that the Tribunal erred in holding that the accident occurred due to rash and negligent driving of the offending vehicle's lorry driver. The Tribunal ought to have held that the driver of the Auto is also responsible for 4 the accident and failed to observe that the accident occurred due to the fault of the auto driver.
15. Learned Counsel for the respondents/ claimants supported the Tribunal's findings and observations.
16. Now the point for consideration is whether the accident occurred due to the rash and negligent driving of the offending vehicle's driver and auto driver.
17. The finding of the Tribunal regarding the quantum of compensation amount is not disputed by the appellant. The offending vehicle is insured by the 3rd respondent, and the insurance policy in force at the time of the accident is not in dispute. The petitioner's case that the deceased was 16 years old at the time of the accident is not disputed. The death of the deceased due to injuries sustained in the accident is not disputed. It is also evident by EX. A2 charge sheet, EX A3 inquest report and EX A4 attested copy of post-mortem report.
18. To establish the negligence on the part of the R1 driver, the claimants got examined P.W. 2 R. Govind, who is said to be a witness to the accident in question. He gave a report ( EX A1 copy of the report) to the police about the accident. His evidence shows that he was proceeding in an auto along with the deceased at the time of the 5 accident. He deposed that when their Auto was going in the east margin, the crime vehicle from Ongole to Nellore without a horn dashed the Auto on its backside, as a result of which the accident occurred. In the cross-examination, he admitted that the Auto was going to the Rise institutions on the eastern side of the road.
19. The evidence adduced on behalf of the 3rd respondent through its employee, R.W. 1, is no eyewitness to the accident. In the report given to the police by PW 2, which was registered as a case in Cr. No. 114 of Tangutur Police station also PW 2 stated that the lorry hit their Auto on its back left side.
20. Ex A2 is the charge sheet filed in Spl. Mobile, Ongole, in the above said crime in which drivers of both the lorry and Auto are shown as accused liable for punishment U/ss 304 A, 338 and 337 I.P.C. The contents of the charge sheet show that Accused No. 1, i.e. the 1st respondent herein, drove the lorry rashly and negligently and dashed the Auto, which was going in the wrong direction.
21. The Counsel for the appellants contends that the drivers of both the vehicles are charge-sheeted for the offences U/ss. 304-A ad 338 and 337 I.P.C. it cannot say that the accident was solely due to the rash and negligent driving of the 1st respondent /the driver of the lorry. 6 Except for stating that the Auto was going in the wrong direction, nothing is alleged against the auto driver. The evidence of PW 2, the eye witness, the contents of the F.I.R. and the charge sheet show that the lorry hit the Auto on its backside. Nothing is elicited in the cross- examination discrediting his evidence regarding the manner of the accident. I see no reason to disbelieve the evidence of PW 2.
22. The driver of the offending vehicle is the best person to speak about the manner of an accident. The respondents have not taken steps to prove the manner of the accident by summoning the 1st respondent to establish that he did not drive the vehicle rashly and negligently at the time of the accident, as alleged by the claimants.
23. In a proceeding under the M.V. Act, where the procedure is a summary procedure, there is no need to go by strict rules of pleading or evidence. The Tribunal has accepted the claimants' case regarding the manner of the accident.
24. This Court Court believes that negligence or contributory negligence must be proved like any other fact. There are no different standards for proving negligence or contributory negligence. But they cannot be decided on suspicion or surprise. The pleas taken in the counter will remain not substantiated by acceptable, relevant and legal evidence. 7 There must be cogent evidence to prove contributory negligence. In the instant case, there is no specific evidence to prove that the accident occurred due to the rash and negligent driving of the Auto. In the absence of convincing evidence to prove the plea of contributory negligence, the common law doctrine cannot be applied in the present case. There are no details of contributory negligence in the counter, and no evidence is also put forth except alleging a stray sentence in the counter. How the accident happened leaves no doubt that the driver of the offending lorry was solely negligent in causing the said accident. While granting relief under the Act, the courts are not to be bound by mere technicalities but would adopt a liberal approach by giving the law a more comprehensive construction and meaning that would favour the victims.
25. A normal rule is for the claimant to prove the negligence. But in accident cases, hardship is caused to the claimants as the actual cause of the accident is not known to them but is solely within the knowledge of the respondent who caused it. It will then be for the respondent to establish the accident due to some other cause than his negligence. As the respondents did not choose to examine the lorry driver who was involved in the accident, and he did not enter 8 into the box to explain the manner of the accident, there is no ocular evidence led in by the respondents.
26. Nothing on record shows what happened in Criminal Court based on the charge sheet filed by the police. But based on the allegations made by the police in the charge sheet, no finding be given unless the same is proved by admissible evidence. It is not safe to accept the allegations made in the charge sheet as accurate when more particularly, no evidence is let in on behalf of the respondents.
27. This Court is of the view that based on the allegations made in the F.I.R. and charge sheet, no finding can be given unless the admissible evidence proves the same. It is not safe to accept the allegations made in the F.I.R. and charge sheet as true when more particularly, no evidence is let in support of the accusations made. If such claims made in the F.I.R. and charge sheet are accepted without corroborative evidence, it amounts to accepting the contents of the F.I.R. and charge sheet without any evidence. Because the police charge-sheeted against the auto driver, it cannot presume the allegations therein are true. The charge sheet allegations have to be proved by adducing oral evidence. The contents of the F.I.R. or charge sheet cannot be taken as conclusive proof by ignoring the evidence on record.
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28. Upon careful reading of the material on record, this Court views that the Tribunal has correctly appreciated the evidence and observed that the accident occurred due to rash and negligent driving of the offending vehicle- lorry, which cannot be found fault with.
29. Given the aforementioned discussion, I do not find any substance in the appeal. I do not see any reason to interfere with the impugned order in the present appeal. Accordingly, the appeal being devoid of merits, is hereby dismissed without costs.
30. Miscellaneous petitions, if any, pending in this appeal shall stand closed.
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T.MALLIKARJUNA RAO, J
Dt. .12.2022
BV
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HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO
M.A.C.M.A. No.531 OF 2015
Dated .12.2022
BV