United India Insurance Co.Ltd vs United India Insurance Co.Ltd
2021 Latest Caselaw 8179 Ker

MACA.No.1442 OF 2006

                               1

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

             THE HONOURABLE MR.JUSTICE C.S.DIAS

WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942

                    MACA.No.1442 OF 2006

 AGAINST THE AWARD IN OP(MV) 1528/1998 DATED 03-12-2005 OF
         MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM


APPELLANT/6th RESPONDENT:

            UNITED INDIA INSURANCE CO.LTD
            REP. BY ITS ADMINISTRATIVE OFFICER,, REGIONAL
            OFFICE, SHARANYA,, HOSPITAL ROAD, KOCHI-11.

            BY ADV. SRI.RAJAN P.KALIYATH

RESPONDENT/PETITIONERS 1 TO 4, RESPONDENTS 1 TO 3 AND ADDL.
RESPONDENTS 4,5, & 7:

      1     SARASU, AGED 42 YEARS
            W/O. LATE KUNJAN BAVA, THITTAYI HOUSE,,
            MADAVANA, PANANGAD P.O.

      2     NISHA AGED ABOUT 20 YEARS
            D/O. LATE KUNJAN BAVA, -DO-

      3     NIVYA AGED ABOUT 11 YEARS
            D/O. LATE KUNJAN BAVA, REP. BY HER MOTHER,,
            -DO-

      4     OMACHI AGED ABOUT 77 YEARS
            W/O. LATE THEVAN, -DO-

      5     KUNJAMMA SCARIA
            POOVADIYIL HOUSE, PATHAMUTTAM, KOTTAYAM.

      6     N.K.SUNIL KUMAR
            NADUVILEMURI PARAMBIL HOUSE, EROOR P.O.

      7     NATIONAL INSURANCE COMPANY LTD.
            COCHIN - 35.
 MACA.No.1442 OF 2006

                            2

     8     K.C.SHAJU
           KARIMATTATHIL HOUSE, CHETHICODE P.O.,,
           KANJIRAMATTOM.

     9     VANAJAN
           CHELAKKAVEETTIL, THIRUVANKULAM.

     10    P.V.GOPI
           ITTITHANAM KARAYIL, CHANGANASSERY.

           R1 BY ADV. SRI.LAL GEORGE
           R1 BY ADV. SRI.MATHEW PHILIP EDAPPALLIL
           R1 BY ADV. SRI.G.PRABHAKARAN
           R1-2 BY ADV. SRI.SAIGI JACOB PALATTY

     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 03-03-2021, THE COURT ON 10-03-2021 DELIVERED THE
FOLLOWING:
 MACA.No.1442 OF 2006

                                3




                         JUDGMENT

The 6th respondent - United India Insurance Company

Ltd - in O.P(MV) No.1528/1998 on the file of the Motor

Accidents Claims Tribunal, Ernakulam is the appellant.

The respondents 1 to 4 were the claimants in the claim

petition and the respondents 5 to 10 were the respondents

1 to 7 in the claim petition. The respondents 11 to 18, the

legal representatives of the deceased 4 th respondent, were

impleaded during the pendency of the appeal. The parties

are for the sake of convenience, referred to as per their

status in the claim petition.

2. The petitioners had filed the claim petition

under Section 166 of the Motor Vehicles Act,1988 (for

brevity referred to as "Act") claiming compensation on

account of the death of one Kunjan Bava - the husband of

the 1st petitioner, the father of petitioners 2 and 3 and son

of the 4th petitioner.

MACA.No.1442 OF 2006

3. The concise background facts pleaded in the

claim petition, which are relevant for the determination of

the appeal, are: on 6.4.1998 when Kunjan Bava

(deceased), a loading and unloading worker, was travelling

in a lorry bearing Reg.No.KLG -2205 through the

Madavana - Panangad road, a tempo van bearing Reg.

No.KLB-9234 (offending vehicle) driven by the 1st

respondent in a rash and negligent manner, came from

the opposite direction and hit the lorry. In the impact the

deceased fell down on the platform of the lorry. He was

taken to the Ernakulam Medical Centre Hospital and,

thereafter, shifted to the Medical Trust Hospital. He was

treated as an inpatient, but he succumbed to the injuries

on the following day evening. The petitioners, alleging

that the 1st respondent -driver of the offending vehicle had

caused the accident, sought compensation from the driver,

the 2nd respondent - owner and the 3rd respondent - the

insurer of the tempo van.

MACA.No.1442 OF 2006

4. Subsequently, on an application filed by the

petitioners, the driver, the owner and the insurer of the

lorry were also impleaded as additional respondents 4 to 6

respectively, on the ground that if it was ultimately found

that it was the driver of the lorry who was negligent in

causing the accident, the respondents 4 to 6 are also

liable to pay compensation. The 7th respondent is the

subsequent insured of the tempo van.

5. The respondents 1,3 and 6 i.e., the owner and

the insurer of the tempo van and the insurer of the lorry

had filed separate written statements.

6. The 1st respondent contended that he had sold

the tempo van to the 7th respondent long before the

accident and, therefore, he cannot be mulct with any

liability.

7. The 3rd respondent filed a written statement

refuting the allegations in the claim petition. It was

contended that the tempo van did not hit the deceased

and, therefore, the 3rd respondent cannot be saddled with

any liability. It was also contended that the deceased had MACA.No.1442 OF 2006

travelled in the lorry in a negligent manner and he

sustained injuries due to his own fault and that the

compensation claimed was exorbitant and excessive. The

3rd respondent prayed that the claim petition be dismissed.

8. The 6th respondent had filed a written statement

admitting the insurance policy of the lorry, but contended

that the accident occurred solely due to the negligence on

the part of the driver of the tempo van. The Police after

investigation had filed a charge-sheet finding that it was

due to the negligence on the part of the driver of the tempo

van that the accident occurred. The 6 th respondent cannot

be held liable to pay any amount as compensation. The

6th respondent also filed an additional written statement

contending that the deceased was travelling outside the

cabin of the lorry, which was a violation of policy condition

and, therefore, the 6th respondent had to be exonerated.

9. Exts.A1 to A14 were marked in evidence on the

sie of the petitioners and Ext.B1 Insurance Policy was

marked in evidence on the side of the 6 th respondent.

Neither party adduced any oral evidence. MACA.No.1442 OF 2006

10. The Tribunal, after analysing the evidence and

materials on record, by the impugned award held that the

petitioners are entitled for a total compensation of Rs.

2,74,500/-, but held that as the deceased was guilty for

contributory negligence to the extent of 25% and the 6 th

respondent - the insurer of the lorry - was liable to pay

the balance amount of compensation of 75% to the

petitioners with interest and costs.

11. The Tribunal allowed the petitioners to recover

an amount of Rs.2,74,500/- with interest at the rate of 7.5%

per annum from the date of petition till the date of

realisation to be realised from the 6th respondent. The

amount was directed to be apportioned in the ratio of

40:25:25:10 among the petitioners.

12. Aggrieved by the impugned award, the 6 th

respondent - Insurance Company of the lorry, is in appeal.

13. Heard Sri.Rajan.P.Kalliath, the learned counsel

appearing for the appellant/6th respondent, Sri.Saigi Jacob

Palatty, the learned counsel appearing for the 2nd

respondent/2nd petitioner and Sri.Lal George, the learned MACA.No.1442 OF 2006

counsel appearing for the 7th respondent (the Insurance

Company of the tempo van)/3rd respondent.

14. The learned counsel appearing for the appellant

contended that the impugned award passed by the

Tribunal is patently wrong and ex facie illegal because the

Tribunal has failed to appreciate the ratio decidenti of the

Division Benches of this Court in New India Assurance

Co. Ltd v. Pazhaniammal [2011 (3) KLT 648] and

Kolavan v. Salim [2018 (1) KLT 489], wherein it has been

categorically laid down that a charge-sheet filed by the

Police, after investigation, is sufficient evidence of

negligence for the purpose of a claim filed under Section

166 of the Motor Vehicles Act. If any of the parties do not

accept such charge-sheet, the onus of proof is on such

party to adduce oral evidence and discredit the charge-

sheet. He argued that as per Ext.A2 charge-sheet, it was

found by the Police, after investigation in Crime

No.710/1998 of the City Traffic Police Station, Kochi, that it

was due to the negligence on the part of the 1 st respondent

- the driver of the tempo van that the accident occurred MACA.No.1442 OF 2006

and Kunjan Bava died. The Tribunal on the basis of

surmises and conjunctures placing reliance on Ext.A11

scene mahazar and Ext.A12 AMVI report found that no

portion of the tempo van had hit the body of the lorry and,

therefore, it is to be inferred that the deceased had

projected his body outside the lorry while travelling. The

learned counsel also contended that the Tribunal placed

undue relevance on Ext.A11 scene mahazar and found that

the accident occurred at 1.06 meters towards the eastern

portion of the tarred road and the lorry exceeded its limit

towards eastern side. Thus, there can be no negligence

on the part of the tempo van, but it was the lorry which

caused the accident. The Tribunal has erroneously

observed that the Police had implicated the tempo van

driver, for no negligence on his part. He prayed that the

appeal be allowed and appellant be exonerated of its

liability to pay any compensation.

15. Sri.Lal George, the learned counsel appearing for

the 7th respondent argued that the findings of the Tribunal

is correct and does not warrant any interference by this MACA.No.1442 OF 2006

Court in exercise of its appellate jurisdiction. The learned

counsel placed strong reliance on paragraph 7 of a

Division Bench decision of this Court in Philippose

Cherian and another v. T.A Eward Lobo [1990 KHC

309] and contended that when a scene mahazar is marked

without objection, the admissible portions in the scene

mahazar can be used by the Tribunal, if none of the parties

disputes the correctness. It is open to the party who

disputes the correctness of such entries, to examine

anyone connected with the documents for showing that the

entries are unreliable. He also placed reliance on

paragraph 20.5 of the decision of the Hon'ble Supreme

Court in Jiju Kurivila and Others v. Kunjujamma

Mohan and Others [(2013) 9 SCC 166] to fortify his

contentions regarding the relevancy and authenticity of

Ext.A11 scene mahazar. He also contended that no party

has been examined to discredit Ext.A11 - scene mahazar

and Ext.A12 AMVI report. According to him, the appeal is

groundless and only liable to be dismissed. MACA.No.1442 OF 2006

16. Only the 6th respondent is in appeal before this

Court assailing the impugned order passed by the

Tribunal directing it to pay 75% of the compensation

amount to the petitioners. The petitioners have not

challenged the award holding the deceased guilty for

contributory negligence to the extent of 25%.

17. The point that emanates for consideration in this

appeal is whether the tempo van or the lorry is negligent

to the extent of 75% for causing the accident

18. As discernible from Ext.A8 and A8(a) wound

certificates, Ext.A3 post-mortem certificate and Ext.A14

inquest report, Kunjan Bava expired on 7.4.1998 in a road

accident caused due to the collision between the lorry and

the tempo van.

19. Pursuant to the death of Kunjan Bava, Kochi City

Traffic Police registered Ext.A1 F.I.R and investigated the

crime. The Police taking note of Ext.A11 scene mahazar

and Ext.A12 AMVI report filed Ext.A2 charge-sheet before

the jurisdictional Magistrate finding that the 1 st respondent

- the driver of the tempo van - had committed an offence MACA.No.1442 OF 2006

punishable under Sections 279 and 304A of the Indian

Penal Code. It was also found that the deceased was a

workman and travelling in the lorry for loading and

unloading of gravel. The Police found that, as per Ext.A12

AMVI report, that the tarpaulin sheet covering the tempo

van was torn. It was this torn portion of the tarpaulin

sheet that hit the deceased and as a result of which he fell

down and the accident was caused. The findings in the

AMVI report was accepted by the Police in Ext.A2 charge-

sheet.

20. A Division Bench of this Court in Pazhaniammal

(supra) has succinctly laid down the law that the

production of the police charge-sheet is prima facie

evidence of negligence for the purpose of a claim filed

under Section 166 of the Act. Prima facie, the charge

sheet filed by the Police after investigation can be accepted

as evidence of negligence against the indictee. If any of

the parties desire to rebut the findings in the charge-

sheet, then the onus of proof is on such person to disprove

the charge-sheet by letting in such oral evidence, failing MACA.No.1442 OF 2006

which the charge-sheet will have to be accepted.

21. In Kolavan (supra), a Division Bench of this

Court has held that once a charge-sheet is filed, it is not

justifiable for the Tribunal to find negligence contrary to

the findings in the charge-sheet merely because of some

material in the scene mahazar. Following the ratio in

Pazhaniammal (supra), it has been held that if there is

any suspicion with regard to the charge-sheet, the party

who challenges the charge-sheet has to let in evidence to

rebut the finding in the charge-sheet. In fact, in Kolavan

(supra), the Division Bench has relied on the decision of

the Hon'ble Supreme Court in Jiju Kuruvila (supra) and

laid down the above ratio.

22. Now coming back to the facts of the case, as

discussed above, the Police based on Exts.A11 and A12

documents arrived at a conclusion that the 1st respondent

was guilty for causing the accident and that the deceased

was a workman travelling in the lorry for loading and

unloading of gravel. Other than production of the

insurance policy of the lorry, the respondents have not let MACA.No.1442 OF 2006

in any contra evidence to disprove the findings of the

Police in Ext.A2 charge-sheet as per the mandate in

Pazhaniammal and Kolavan (supra).

23. The reluctance/refusal of the respondents to

mount the box and let in any contra evidence to rebut

Ext.A2 charge-sheet, has proved fatal to the 7th

respondent/3rd respondent - Insurance Company. The

Tribunal for the lack of evidence to the contrary to Ext.A2

charge-sheet ought not to have found negligence on the

part of the driver of the lorry, which is unsustainable in

law. Moreover, as seen from Ext.A12 AMVI report, it was

the torn piece of the tarpaulin sheet, which was used to

cover the tempo van, that hit the deceased and was the

cause of his death. The reliance placed by the Tribunal on

Ext.A11 scene mahazar alone, is perverse and against the

ratio in Kolavan (supra). In the said circumstances, the

finding of the Tribunal that, it was driver of the lorry

who was negligent in causing the accident and, therefore,

the appellant/6th respondent is liable to pay the

compensation is set aside. Accordingly, the point is MACA.No.1442 OF 2006

answered in favour of the appellant.

In the result, the appeal is allowed. The appellant/3rd

respondent is exonerated of its liability to pay the

compensation as per the impugned award. It is seen from

the records that the appellant had deposited an amount of

Rs.25,000/- at the time of filing of the appeal and,

thereafter, deposited 50% of the compensation amount as

directed by this Court by order dated 25.8.2006. The

Registry is directed to refund the aforesaid amounts to the

learned counsel appearing for the appellant before this

Court, in accordance with law. The 7 th respondent/3rd

respondent shall deposit the compensation amount of

Rs.2,74,500/- along with interest at the rate of 7.5% per

annum from the date of petition till the date of realisation

with proportionate costs within a period of sixty days from

the date of receipt of a copy of this judgment, failing which

the respondents 1 to 4/petitioners would be at liberty to

execute the award as against the 7th respondent. The

respondents 1 to 4/ would be at liberty to move the

Tribunal for withdrawal of the deposited amount, after the MACA.No.1442 OF 2006

same is deposited by the 7th respondent, in accordance

with law.

Sd/-

C.S.DIAS ma/4.3.2021 /True copy/ JUDGE