The New India Insurance Co Ltd vs Neelam Peda Chenchaiah 5 Others
2022 Latest Caselaw 9637 AP

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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

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.

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

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

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.

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.

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

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.

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.

                                                   ___________________________
                                                   T.MALLIKARJUNA RAO, J

Dt.      .12.2022
BV




     HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO




            M.A.C.M.A. No.531 OF 2015

                 Dated   .12.2022




BV