Kerala High Court
National Insurance Company Limited vs Shakeela on 14 May, 2024
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TUESDAY, THE 14TH DAY OF MAY 2024 / 24TH VAISAKHA, 1946
MACA NO. 1676 OF 2014
AGAINST THE AWARD DATED 22.03.2014 IN OP(MV) NO.468 OF 2011 OF
II ADDITIONAL DISTRICT MACT, KASARAGOD
APPELLANT:
NATIONAL INSURANCE COMPANY LIMITED
KANNUR, NOW REPRESENTED BY ITS MANAGER,
KOCHI REGIONAL OFFICE, OMANA BUILDING,
M G ROAD, KOCHI 35.
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
RESPONDENT:
SHAKEELA
D/O.AXUBI, 4TH CORSS, GUPTA LAYOUT,
BANGALORE, KARNATAKA STATE
NOW RESIDING AT MUTTAM P.O.,
KASARAGOD, PIN 671320.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING :
MACA No.1676 of 2014 2
"C.R."
JUDGMENT
Dated this the 14th day of May, 2024
This appeal is filed by the Insurance Company challenging the
Award dated 22.03.2014 in O.P. (M.V.) No.468 of 2011 of the II
Addl. Motor Accidents Claims Tribunal, Kasaragod (hereinafter
referred to as the "Tribunal"). The appellant was the 3 rd respondent
and the respondent was the claimant before the Tribunal.
2. Facts in brief:
On 09.04.2009, a Ford Escort car bearing registration No.KA-
03-Z-1727 owned by the respondent which was parked on the side
of the National Highway Near Ganesh Carriage, Kumbla, was hit by
an Alto car bearing registration No.KL-60/6202. The appellant was
the insurer of the said Alto car. It is alleged that the driver of the
Alto car was driving the same in a rash and negligent manner, thus
causing it to hit on to the rear side of the Ford Escort Car. Since
damage had occasioned to her car, respondent/claimant carried out
repairs to the same and filed O.P.(M.V.) seeking to recover an
amount of Rs.1,07,000/- with interest.
3. Proceedings before the Tribunal:
In the O.P.(M.V.), though the driver of the Alto car was
arrayed as the 1st respondent, the respondent herein failed to take
due steps for issuance of notice against the driver. Hence the
petition as against the driver happened to be dismissed. The owner
of the Alto car, who was the 2nd respondent in the O.P.(M.V.)
though was duly served with notice, remained ex-parte. The
appellant Insurance Company alone contested the matter and they
filed a written statement admitting the policy. Negligence on the
part of the driver of the Alto car and the quantum of compensation
were contested by the appellant. Based on the pleadings, the
Tribunal framed four issues and parties went to trial on the same.
No oral evidence was adduced by either side. Exts.A1 to A8 were
marked from the side of the respondent/claimant. From the part of
the appellant Insurance Company, Ext.B1 policy was marked.
4. Award of the Tribunal:
The Tribunal after separate consideration of the issues, found
that the accident had occasioned due to the rash and negligent
driving by the driver of the Alto car and consequently found the
appellant, the insurer, liable to pay compensation to the
respondent/claimant for the damage occasioned to her car. The
Tribunal in its Award held that the respondent is entitled to a total
amount of Rs.1,07,447/- with interest at the rate of Rs.7.5% per
annum from the date of the petition till its realisation and for
proportionate costs. The appellant was directed to deposit the same
before the Tribunal within two months of the date of the Award.
Aggrieved by the said Award, the appellant Insurance Company
preferred the above M.A.C.A.
5. Heard Sri.Mathews Jacob, learned Senior Advocate
appearing on behalf of the appellant. Though notice was served by
affixture on the respondent, there was no appearance. As per Order
dated 29.11.2022 in I.A.No.1 of 2022, service of notice to the
respondent was declared as complete.
6. Contentions of the appellant, in brief:
# Since the claim against the 1st respondent driver had
already been dismissed due to the claimant's failure to serve
notice upon him, negligence as alleged by the respondent has
not been proved.
# If no negligence is proved against the driver, the question of
vicarious liability of the owner and the consequent obligation
of the insurer to indemnify, does not arise.
# Exts.A5 to A7 bills relied on by the Tribunal to arrive at the
quantum of compensation have not been formally proved and
hence said exhibits ought not have been relied on by the
Tribunal.
# The Tribunal erred in awarding an amount of Rs.1,07,447/-
overlooking Ext.A4 survey report which had assessed the
damages at a lesser amount of Rs.67,700/-.
# Since the vehicle is of the year 1997 and the accident
occurred in 2009, the Tribunal ought to have taken note of
depreciation while granting compensation.
7. Discussion and Reasoning:
Before proceeding to examine the contentions raised by the
learned Senior Counsel, especially the imperativeness of formally
proving the documents produced before the Tribunal, I deem it
relevant to remind myself of the nature and scope of the
jurisdiction exercised by a Motor Accident Claims Tribunal while
entertaining a petition under Section 166 of the Motor Vehicles Act,
1988.
8. The Hon'ble Supreme Court has in Jai Prakash v.
National Insurance Co. Ltd. and others [2010 (2) SCC 607]
held that the procedure to be followed by the Motor Accident
Claims Tribunal under the Act is summary in nature and it need not
be conducted like civil suits. The proposition was further reiterated
in ICICI Lombard General Insurance Company v.
M.D.Davasia @ Jose and another [2019 (4) KHC 157] wherein
it was held that Tribunal is not a civil court though it has the
trappings of a civil court. More recently, in Sunita and others v.
Rajasthan State Road Transport Corporation and others
[2020 (13) SCC 486], the Hon'ble Supreme Court held that
proceedings before the Tribunal is not an adversarial adjudication.
9. It is thus trite and settled law that the proceedings
before a Tribunal are summary and inquisitorial in nature, wherein
the judge is to arrive at the truth rather than the claimants' proving
their case with minute precision and exactness. It is no more res
integra that the jurisdiction exercised by Tribunals under the
Motor Vehicles Act, 1988 do not envisage or partake the
technicalities of an adversarial adjudication.
10. Having thus reminded myself of the scope and nature of
the jurisdiction exercised by a Motor Accidents Claims Tribunal, I
now proceed to consider the points raised on behalf of the
appellant.
11. Contention Nos.1 & 2: It is the case of the appellant
that negligence on the part of the driver being the very basis of the
claim, dismissal of the petition as against the driver for failure of
the respondent to take out notice to the driver, snuffs the life out of
the O.P.(M.V.). Appellant contends that since no negligence has
been proved, the question of vicarious liability of the owner and
consequent obligation of the insurer to indemnify, does not arise.
The question regarding the proof of negligence has been the subject
matter of a catena of decisions. In New India Assurance Co.
Ltd. v. Pazhaniammal and others [2011 (3) KHC 595], this
Court has held that as a general rule, it can be safely accepted that
production of the police charge sheet is prima facie sufficient
evidence of negligence for the purpose of a claim under Section 166
of the Motor Vehicles Act. It is trite and settled law as laid down in
Pazhaniammal's case that police charge sheet is prima facie
sufficient evidence of negligence on the part of the driver. The same
dictum is followed in Kolavan v. Salim [2018 (1) KLT 489] and
Samadh M.B. And others v. Binu and others [2020 KHC
444]. In the case at hand, Exts.A1 to A3 relied on by the Tribunal
are copies of the FIR in Crime No.94 of 2009 of Kumbla Police
Station, the Final Report in the said Crime and the report of the
inspection of the motor vehicle involved in the accident
respectively. Appellant has not controverted or challenged Exhibits
A1 to A3. The said documents are by their very nature, documents
which prima facie evidence the negligence on the part of the driver
and reliably points towards the incident. No objections have been
raised before the Tribunal by the appellant regarding the marking
of the same. Though another version for the cause of the accident
was put forth by the appellant in their written statement, the same
was not supported by any materials and was hence discarded by the
Tribunal for lack of substantiation. It is also relevant to note that
the owner of the Alto car to which the insurance cover was afforded
by the appellant, was in the party array. He had chosen not to
appear inspite of receipt of notice and was consequently set ex
parte. In the light of the above, contention put forth by the
appellant that absence of the driver negatives the existence of
negligence cannot be sustained.
12. Contention No.3: Appellant contends that since the
documents produced by the claimant were not formally proved by
examining the claimant, the Award of the entire claim based on the
said documents, which are unreliable, is unsustainable in law. It is
relevant to note that the principal document produced by the
respondent and relied on by the Tribunal is the survey report dated
19.05.2009 issued by the Insurance Surveyor (Ext.A4). The said
document has not been disowned by the appellant nor has its
marking been objected. A survey report prepared by an insurance
surveyor and marked in evidence without any objection possesses a
prima facie evidentiary value and reliability. The Tribunal cannot
be found fault with for having relied on such a survey report
prepared by the Insurance Surveyor. As regards Exts.A5 to A7
relied on by the Tribunal viz., the original cash bill for labour
charges and bills for purchase of spare parts, the veracity of the said
documents have not been challenged. It is seen from the Award that
the Tribunal had earnestly sifted the documents produced and had
rightly rejected Ext.A8 produced by the respondent for the reason
that the same is only a quotation. It is thus discernible from the
Award that the Tribunal had applied its mind and had carefully
scrutinized the nature and reliability of the exhibits produced by
the respondent, accepting only those that are legally reliable, while
discarding the others. In view of the above and also taking note of
the summary nature of the proceedings before the Tribunal as
settled by the decisions mentioned above, the reliance placed on
Exts.A5 to A7 by the Tribunal cannot be termed as erroneous.
13. Contention No.4: As regards the contention of the
appellant that the Tribunal erred in awarding an amount of
Rs.1,07,447/- overlooking the survey report which had assessed the
damages at Rs.67,700/-, it is only axiomatic that once the policy is
admitted and the survey report of the Insurance Surveyor is
marked, the Tribunal proceeded to accept the original documents
viz., Exts.A5 to A7 produced by the respondent which stood
uncontroverted. The amount mentioned in the survey report had
been arrived at by the Insurance Surveyor whose report possess a
prima facie reliability. The genuineness and veracity of the said
report has not been challenged by the appellant Insurance
Company before the Tribunal. The survey report of the Insurance
Surveyor thus stands admitted by the appellant and it flows
therefrom that the factum of accident and the damage ensuing
pursuant to the same are admitted by the appellant. The cash bill
for labour charges and the purchase bills for spare parts produced
as Exts.A5 to A7 have not been controverted by the Insurance
Company by producing any evidence whatsoever. Consequently the
amount arrived at by the Tribunal cannot be termed as whimsical
or devoid of any basis.
14. Contention No.5: The final point contended by the
appellant concerns depreciation. Reliance is placed on dictum laid
down in the judgment of this Court in Abraham v. Johny (2009
(4) KLT 679) and it is contended that since the vehicle is of the year
1997 and the accident occurred in 2009, the Tribunal ought to have
taken note of depreciation while awarding compensation. The
written statement dated 10.06.2013 filed by the appellant before
the Tribunal does not contain a contention regarding depreciation.
The said contention is taken for the first time in the M.A.C.A. The
Tribunal has based its Award on the survey report submitted by the
Insurance Surveyor which was produced as Ext.A4. Ext.A5 is a bill
evidencing the labour charges. This Court has in Abraham v.
Johny referred to above, held that no depreciation shall be
deducted for labour costs for repair and replacement. Hence no
depreciation need be deducted from the amount mentioned in Ext.
A5. The Tribunal had included the amounts in Exts.A6 and A7 bills
relating to spare parts for the computation of the damages. The
learned Judge has in the Award stated that the appellant Insurance
Company has not made it clear as to why the said amount for which
the respondent had produced bills should not be granted. Further
it is noted that the total amount upon adding up the figures in
Exts.A4, A5, A6 and A7 is Rs.1,70,148.31/-. The total amount
awarded by the Tribunal is only Rs.1,07,447/-. In view of the above,
it cannot be said that the element of depreciation has been totally
lost sight of by the Tribunal. Hence the contention raised relying on
the dictum in Abraham v. Johny's case is not sustainable.
15. In the light of the above discussion on the respective
contentions of the appellant, I find no reason to interfere with the
Award dated 22.03.2014 in O.P.(M.V.) No.468 of 2011 of the Motor
Accidents Claims Tribunal, Kasaragod. Interim Orders passed in
this M.A.C.A. will stand vacated and all I.As. closed. Appellant shall
deposit before the Tribunal amounts payable as per the Award, less
the amounts already deposited, if any, within one month from the
date of this judgment.
M.A.C.A. is dismissed. No costs.
Sd/-
SYAM KUMAR V.M.
JUDGE
csl
