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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
