National Insurance Co.Ltd vs Mony
2021 Latest Caselaw 23266 Ker

MACA NO. 2823 OF 2008
                              1

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
              THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
                    MACA NO. 2823 OF 2008
  AGAINST THE ORDER/JUDGMENT IN OPMV 897/2003 OF ADDITIONAL
          MOTOR ACCIDENT CLAIMS TRIBUNAL , KOTTAYAM
APPELLANT/S:

          NATIONAL INSURANCE CO.LTD.,REP. BY THE DIVISIONAL
          MANAGER, DIVISIONAL OFFICER,, KOTTAYAM.

          BY ADV SRI.RAJAN P.KALIYATH



RESPONDENT/S:
    1     MONY, S/O KESAVAN,KOCHUCHIRAYIL HOUSE, KUMMANAM
          KARA,, CHENGALAM VILLAGE, KOTTAYAM DIST.

    2     VINOD, S/O PRABHAKARAN, ARUPARAYIL HOUSE, KUMMANAM
          KARA, CHENGALAM VILLAGE, KOTTAYAM DISTRICT

    3     P.K. SURENDRAN, SUJITH BHAVAN,CHEERAMCHIRA,
          CHENGALAM, KOTTAYAM DISTRICT

          BY ADVS.
          SRI.ALEX M. ARAYATH
          SRI.JOSE JOSEPH MANNAR


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 25.11.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 2823 OF 2008
                                2

                         JUDGMENT

The appellant-insurer was the 3rd respondent in OP(MV)

No.897/2003 on the file of the Motor Accidents Claims

Tribunal, Kottayam. The 1st respondent in the appeal was the

petitioner and the respondents 2 and 3 were the respondents

1 and 2 before the Tribunal. The parties are, for the sake of

convenience, referred to as per the status before the Tribunal.

2. The petitioner had filed the claim petition under

Section 166 of the Motor Vehicles Act, 1988, claiming

compensation on account of the injuries that he sustained in

an accident on 21.06.2001. It was his case that, while he was

traveling in an autorikshaw bearing registration No.KL-5D

3294 (autorikshaw) from Kottayam to Kumarakam, on the

above said date, when the vehicle reached Alummoodu bridge,

the autorikshaw took a sudden turn and it fell to its right side.

The petitioner was thrown off the autorikshaw and he

sustained serious injuries. He was treated as an inpatient at

the Medical College Hospital, Kottayam. He sustained a

fracture to his right shoulder and lateral end right clavicle.

The autorikshaw was driven by the 1 st respondent, owned by

the 2nd respondent and insured with the 3rd respondent. The MACA NO. 2823 OF 2008

petitioner was a driver by profession, earning a monthly

income of Rs.3,000/-. Hence, the petitioner claimed a

compensation of Rs.1,50,000/- from the respondents.

3. The 2nd respondent had filed a written statement

refuting the allegations in the claim petition. However, it was

stated that the autorikshaw was validly insured with the 3 rd

respondent.

4. The 3rd respondent had filed a written statement, inter

alia, contending that the autorikshaw was not driven by the 1 st

respondent, but was driven by the petitioner. The claim

petition was filed in collusion with the respondents 1 and 2 for

unlawful gain. The intimation given to the Duty Doctor of the

Medical College Hospital, Kottayam, gives a clear indication

that it was the petitioner who drove the autorikshaw. The

Kottayam Traffic Police in collusion with the petitioner has

illegally laid the charge sheet before the Court. The charge

sheet has no force at all. Nonetheless, the 3 rd respondent

admitted that the autorikshaw had a valid insurance policy.

Hence, the 3rd respondent prayed that the claim petition be

dismissed.

5. The petitioner was examined as PW1 and Exts.A1 to A8 MACA NO. 2823 OF 2008

were marked in evidence. The respondents did not let in any

evidence.

6. The Tribunal, after analysing the pleadings and

materials on record, by the impugned award allowed the claim

petition in part, by permitting the petitioner to recover from

the 3rd respondent an amount of Rs.46,700/- with interest and

cost.

7. Aggrieved by the allowing of the claim petition, the 3 rd

respondent/insurer is in appeal.

8. Heard Sri. Rajan P. Kaliyath, the learned counsel

appearing for the 3rd respondent insurer and Sri. Jose Joseph,

the learned counsel appearing for the 1st

respondent/petitioner.

9. The question that arises for consideration in the appeal

is:

Whether the impugned award directing the

appellant/3rd respondent to pay the compensation

amount is correct or not ?.

10. Sri. Rajan P. Kaliyath contended that, it is evident

from Ext.A5 wound certificate, it was the petitioner who drove

the autorikshaw because he had informed the Doctor at the MACA NO. 2823 OF 2008

Medical College Hospital, at the first instance, in the said

manner. The fact that the 1st respondent - driver of the

autorikshaw, surprisingly, had not sustained any injury in the

accident fortifies this aspect. More over, it is evident from

Ext.A5 wound certificate that it was the brother of the

petitioner who had taken him to hospital which is again highly

improbable. All the above crucial aspects leads to the

irresistible conclusion that the entire case set up by the

petitioner is concocted, and is only carved for the purpose of

unlawful enrichment. The Tribunal, solely relying on Ext.A1

charge sheet, has arrived at the wrong conclusion that the

accident happened due to the negligence of the 1 st

respondent. Sri. Rajan P. Kaliyath placed reliance on the

decision of the Honourable Supreme Court in Nishan Sing

vs. Oriental Insurance Company Ltd. [2018 (1) KLT 3098

SC], to buttress his contention that, a case filed under Section

166 of the Motor Vehicles Act, 1988, cannot be decided merely

on the basis of a charge sheet. The initial onus of proof is

always on the claimant/injured, to prove that the accident had

occurred due to the negligence of the driver of the offending

vehicle. He submitted that in view of the declaration of law in MACA NO. 2823 OF 2008

Nishan Sing (supra), the decision of this Court in New India

Assurance Co. Ltd. vs. Pazhaniammal [2011 (3) KLT 648]

has got watered down. He also placed reliance on the

judgment of the Honourable Supreme Court in Kamalesh &

Ors vs. Attar Singh [2015 (15) SCC 364] to drive home his

contention that the charge sheet is not conclusive, to attribute

negligence on the person mentioned in the charge sheet.

Therefore, he prayed that the impugned award be set aside,

especially in the light of the specific contention of the

appellant/3rd respondent in the written statement that the

charge sheet was collusive. According to him, the Tribunal has

not given the appellant/3rd respondent an opportunity to let in

evidence and discredit the charge sheet, instead has

perfunctorily accepted the version of the petitioner. Therefore,

he prayed that the appeal be allowed, atleast by way of

remand.

11. Sri. Jose Joseph, the learned counsel appearing for

the 1st respondent/petitioner, defended the impugned award.

He contended that the mere assertion by the insurer in the

written statement that the charge sheet is collusive is

insufficient to discredit the charge sheet. It is the bounden MACA NO. 2823 OF 2008

duty of the person who alleges that a charge sheet is collusive,

to let in substantive corroborative evidence and discredit the

charge sheet. Therefore, he prayed that the appeal be

dismissed.

12. The definite case of the petitioner in the claim

petition is that, on 21.06.2001, while he was traveling in an

autorikshaw, when the vehicle reached Alummoodu bridge,

the 1st respondent negligently and abruptly swerved the

vehicle causing the petitioner to be thrown off the vehicle. The

petitioner was examined as PW1 and he deposed in line with

the averments in the claim petition. He also produced and

proved Exts.A1 to A8 in evidence. In Ext.A1 charge sheet filed

by the Police, it is categorically found that the accident

occurred due to the negligence of the 1st respondent.

13. A Division Bench of this Court in New India

Assurance Co. Ltd. vs. Pazhaniammal [2011 (3) KLT 648]

has in paragraphs 7 and 8 held as follows:

"7. In this context we feel it appropriate to refer to the practice adopted by many Tribunals in the State. Wherever a crime has been registered in respect of the accident and the investigation has culminated in the filing of the a charge sheet by the Police, such charge sheet is filed and the same is reckoned as sufficient to establish negligence on the part of the indictee.

MACA NO. 2823 OF 2008

The practice has not received formal judicial approval and hence some Tribunals insist on oral evidence in support of negligence invariably. This consumes a lot of judicial time and the heavily over worked Tribunal spends its time on unnecessary oral evidence of negligence. We would certainly not want the Tribunals to be prisoners of the conclusions of police officers. If the Tribunal finds it suspicious, it can insist for better evidence. But as a general rule it can safely be accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under S.166 of the Motor Vehicles Act. A system cannot feed itself on a regular diet of distrust of the police. Prima facie, charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunals should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under S.166 of the Motor Vehicles Act. We mean to say that on production of such charge sheet the shifting of burden must take place. It is not as though we are not conscious of the dangers and pit falls involved in such an approach. But we feel that adoption and recognition of such practice would held to reduce the length of the long queue for justice before the Tribunals. The judicial recognition of the practice will help the Tribunals to ensure the optimum use of judicial time at their disposal for productive ventures.

MACA NO. 2823 OF 2008

8. We do not intend to say that collusive charge sheets need be accepted. Wherever on the facts of a given case the Tribunals feel that the police charge sheet does not satisfy their judicial conscience, the Tribunals can record that the charge sheet cannot be accepted and can call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged negligence. In such a case, the issue of negligence must be decided on the other evidence, ignoring the charge sheet".

(emphasis supplied)

14. Going by the ratio in the afore-cited decision, it has

been succinctly held that, if the Tribunal feels any suspicion in

the charge sheet, it can insist for better evidence to be let in

by the parties. But, as a general rule, it can safely accept the

charge sheet as prima facie evidence of negligence while

deciding a claim petition under Section 166 of the Motor

Vehicles Act, 1988. If any party does not accept such charge

sheet, the burden is on such party to adduce oral evidence and

discredit the charge sheet. It is also specifically observed that,

this Court is fully conscious of the dangers and pitfalls in

following the above approach, but the above method is being

adopted for the purpose of reducing the long queue for

justice. Nonetheless, as a step of abandonment caution, it is

further observed that in the case of collusive charge sheets,

the Tribunal need not accept the charge sheet as the gospel MACA NO. 2823 OF 2008

truth. If the charge sheet does not satisfy the judicial

conscience, the Tribunal can very well record the same and

call upon the parties to let in oral evidence. Therefore, this

Court has evolved a pragmatic methodology with sufficient

safeguards, to expedite the justice delivery system for

deciding a claim under Section 166 of the Act, instead of a

pedantic approach and strict procedure, which is not

envisaged under the Act and Rules, by ritualistically insisting

for oral evidence to be let in by the parties to prove the issue

of negligence, especially when there is no evidence to the

contrary than what has been investigated and found by the

Police in the charge sheet. The law in Pazhaniammal (supra)

was laid down only to save judicial time and render speedy

justice to the victims and dependents of the persons who loose

their lives in tragic road accidents.

15. In Nishan Sing (supra), the Honourable Supreme

Court has, for the reason that the offending car, after traveling

behind a truck for more than a kilometer, hit on the rear side

of the truck, found the charge sheet not satisfying its judicial

conscious. Therefore, the Honourable Supreme Court

discarded the charge sheet and held that the car driver MACA NO. 2823 OF 2008

negligent. The above judgment was rendered in the peculiar

facts and circumstances of that particular case and cannot be

said to have watered down the decade old well settled

principles laid down in Pazhaniammal (supra). I am not

persuaded or inclined to hold that Nishan Singh has

rendered Pazhaniammal (supra) no longer good law.

16. In the instant case, the appellant/3rd respondent,

other than for the bald assertion in the written statement that

there is a collusion between the petitioner and the

respondents 1 and 2, has not let in any evidence to discredit

Ext.A1 charge sheet. Hence, following the ratio in

Pazhaniammal (supra) and considering the fact that there

was no evidence to the contrary, I hold that there is no

illegality or error in the impugned award. The appeal is

without any merits and is only to be dismissed.

In the result the appeal is dismissed. The parties shall

bear their respective costs.

Sd/-

C.S.DIAS, JUDGE

rkc