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MACMA_76_2012
HON'BLE SHRI JUSTICE T. MALLIKARJUNA RAO
M.A.C.M.A. No.76 OF 2012
JUDGMENT:
1. Aggrieved by the order dated 26.11.2010 in M.V.O.P. No.318 of 2009 passed by the Chairman, Motor Accidents Claims Tribunal- cum-IX Additional District Judge (F.T.C.), Guntur, the insurer- M/s.IFFCO-TOKIO General Insurance Company Ltd., represented by its Manager, which is arrayed as the 4th respondent, has filed this appeal seeking to have its liability set aside.
2. The parties will be referred to as arrayed in the M.V.O.P.
3. The Claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, read with Rules 455 and 476 of the Motor Vehicle Rules, 1989, for a compensation amount of Rs.1,00,000/-on account of the injuries sustained by him in the accident that occurred on 29.01.2009. It is the case of the Claimant that on 29.01.2009 at about 4.00 PM, she and others were travelling in an auto bearing No.AP 07 W 3598 from Dhulipalla to Sattenapalli. When the said auto reached Bagya Nagar colony, Dhulipalla, the auto of the third respondent and the lorry of the first respondent collided (head-on collision); in that accident, the Claimant sustained injuries, and the accident 2 MACMA_76_2012 occurred because of the rash and negligent driving of both the drivers of the lorry and auto.
4. The 1st respondent is the owner, the 2nd respondent is the insurer of the lorry, the 3rd respondent is the auto owner, and the 4th respondent is the auto insurer. Respondents 1 and 3 have remained ex-parte.
5. The 2nd and 4th respondents have filed their counters, denying all the allegations, contending that the respective drivers of the lorry and auto did not have valid driving licences at the time of the accident.
6. Based on the pleadings, the Tribunal framed appropriate issues.
On behalf of Claimant, Petitioner herself examined and marked Ex.A.1 to A.5 and Exs.X.1 to X.2 . On behalf of 2 nd respondent, let in no evidence. On behalf of the 4th respondent, its senior legal executive was examined as R.W.1, marked Exs.B.1 to B.3.
7. On appreciation of the evidence adduced on both sides, the Tribunal held that both the drivers of the lorry and the auto were negligent and caused the accident. The percentage of negligence on their part is fixed at 50% each.
8. Learned counsel for the appellant contended that the claimants failed to make out any case against the driver of the auto, and the burden was on the claimants to prove that the auto driver was at fault. The Tribunal found that the auto driver also 3 MACMA_76_2012 contributed to the accident by carrying more passengers than the capacity of the auto.
9. Learned counsel for the Claimant supported the findings of the Tribunal.
10. Now the point for consideration is whether the Tribunal is justified in fastening the liability on the auto insurer.
11. As seen from the grounds of appeal, the appellant has not disputed the quantum of compensation awarded to the Claimant. As seen from the order, the Tribunal granted a compensation amount of Rs.54,000/-to the Claimant. The Claimant relied on the disability certificate-Ex.A.5. The Tribunal is pleased to grant an amount of Rs.18,000/-under the head of permanent disability. The Tribunal also awarded an amount of Rs.2,000/-under the head of transportation, Rs.9,000/-under the head of loss of earning, Rs.5,000/-under the head of extra nourishment and medical expenditure and Rs.10,000/-under head of pain and suffering and also an amount of Rs.10,000/-under the head of further surgery and altogether an amount of Rs.54,000/- is awarded.
12. The Claimant herself was examined as P.W.1 to prove the manner of the accident, and she also examined P.W.2, the doctor who treated her, and issued a wound certificate. This court views that the evidence of P.W.2 is not much relevant to decide 4 MACMA_76_2012 the contentions raised in the appeal. On behalf of the 4th respondent also, R.W.1-G.Purnachandra Rao was examined. Admittedly, he is not an eyewitness to the occurrence. He has given evidence based on the record. Thus, the evidence of R.W.1 is also not helpful in deciding the controversy in the appeal. On behalf of the Claimant, to prove the manner of the accident, the Claimant relied on Ex.A.1 F.I.R. and Ex.A.2 certified copy of the charge sheet. It is clear from the record that both parties did not choose to examine the lorry's driver. This court views that he is the best person to speak about the manner of the accident. The 4th respondent disputed the finding of the Tribunal, making the auto driver also responsible for the accident. For reasons best known to the 4th respondent, It has not chosen to examine the driver to prove the accident. Though the claimants have relied on the charge sheet to prove the contents of the charge sheet, the investigation officer was not examined. The Tribunal observed that the investigation officer did not prepare the scene observation report as per Ex.A.2 charge sheet.
13. The Tribunal also observed that, as the investigation officer was not examined, the police record cannot be the sole basis to decide on whose part of the negligence accident occurred. The Tribunal mainly relied on the contents of Ex.A.1, report, stating that the auto was proceeding on the left side of the road. P.W.1 deposed 5 MACMA_76_2012 that there was no traffic on the road at the time of the accident. The material on record shows several passengers beyond the authorized were in the auto at the appropriate time. The Tribunal also observed two persons sitting on either side of the auto driver. Taking the said evidence into consideration, the Tribunal observed that allowing passengers on either side of the auto driver would push many inconveniences to the driver.
14. The Tribunal observed that in the absence of the rough sketch or the scene observation report, it has come to an opinion that it is not just and proper to attribute negligence to the lorry's driver only. On the other hand, admittedly, P.W.1 was proceeding in the auto. According to the Claimant's case also, it is a head-on collision. According to the Claimant, the accident occurred due to rash and negligent driving of the drivers of both vehicles. In the facts of the case, the Tribunal concluded that the drivers were equally responsible for the accident. The percentage of negligence on the part of each driver is fixed at 50%. The Tribunal has considered the evidence of P.W.1, who sustained injuries in the accident, and reached the correct conclusion. In the facts of the case, it cannot say that the Tribunal erred in holding that the auto driver was also responsible for the accident. Because the charge sheet is filed against the lorry driver only, it cannot be contended that the Tribunal has to accept the contents of the 6 MACMA_76_2012 charge sheet. The Tribunal has given specific reasons for not relying on Ex.A.4 charge sheet. In the absence of a rough sketch or a scene observation report, the Tribunal has not inclined to give weight to the evidence of P.W.1, who travelled in the auto at the time of the accident; the said reasoning adopted by the Tribunal cannot be assailed.
15. The material on record clearly shows that both vehicles were considerably damaged in the said accident. The evidence of RW.1 shows that the accident occurred due to a collision between an auto and a lorry. This court believes that a person's negligence cannot be judged based on the contents of the charge sheet. The Claimant, who sustained injuries, stated on oath that the accident occurred due to the collision of both vehicles. A head-on collision between the vehicles usually occurs when the drivers of vehicles are negligent. Even if one of the drivers is more careful, there is a possibility of averting the accident. The Tribunal has given prominence to the evidence of PW.1, who sustained injuries in the accident. There is every possibility for PW.1 to witness the accident in question. As already observed, the Claimant concerning sustaining injuries is evident by Exs.A2 and A3 documents. 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 7 MACMA_76_2012 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.
16. On the other hand, Claimant, who sustained injuries in the accident, deposed that the accident occurred due to a collision of both vehicles. Such an allegation in the charge sheet can not be accepted without corroborative evidence. Because the police charge-sheeted against the lorry 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.
17. The evidence on record discloses that the accident occurred because the auto driver also contributed to the accident by having passengers on either side of him; the Tribunal concluded that the auto driver had also lost control over the vehicle and contributed to the accident. This court views that the owner of the auto violated the terms and conditions of the policy, as the auto driver allowed two passengers beside him, which contributed to the accident. The auto owner has not challenged the said finding; the appellant/ 4th respondent can be permitted 8 MACMA_76_2012 to recover from the owner of the auto after payment of the compensation amount to the Claimant.
18. The appeal is partly allowed without costs, permitting the appellant to pay the compensation amount to the Claimant as awarded by the Tribunal and recover the same from the auto owner for violation of terms and conditions.
19. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.
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T. MALLIKARJUNA RAO, J Dt.01.11.2022 BV