Madras High Court
C.Kumar Selvin vs S.Sudersanan on 23 February, 2021
C.M.A(MD)No.1527 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
C.M.A(MD)No.1527 of 2010
C.Kumar Selvin : Claimant/Appellant
Vs.
1.S.Sudersanan
2.B.Mohan
3.S.Anil Kumar
4.The Branch Manager,
The National Insurance Company ltd.,
Thiruvananthapuram,
Kerala State.
5.The Branch Manager,
The New India Assurance Company Ltd.,
Thiruvananthapuram,
Kerala State.
6.The Branch Manager,
The New India Assurance Co Ltd.,
Nagercoil,
Kanyakumari District. : Respondents/Respondents
PRAYER: Civil Miscellaneous Appeal has been filed under
Section 173 of Motor Vehicles Act, to call for the records and set
aside the judgment and decree passed in M.C.O.P.No.150 of 2001
1/9
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C.M.A(MD)No.1527 of 2010
dated 14.06.2010 on the file of the Motor Accident Claims Tribunal
(Principal Sub Court), Nagercoil.
For Appellant : Mr.F.Deepak
For R1 : dismissed vide Court order
dated 20.02.2012
For R2 & R3 : No appearance
For R4 to R6 : Mr.J.S.Murali
JUDGMENT
This appeal has been filed by the claimant challenging the
judgment passed by the Motor Accident Claims Tribunal (Principal
Sub-Court), Nagercoil in M.C.O.P.No.150 of 2001.
2. The facts in brief are that on 28.07.1996 the claimant was
proceeding in a bullot Motorcycle bearing Registration No.TN-74-
B-8686 on Kanyakumari - Nagercoil road from North to South
direction, when he was proceeding near Ganaga Textiles at Kottar,
the third respondent, who was riding the motorcycle bearing
Registration No.KRQ-1468 from opposit direction, came in a high
speed and dashed against his motorcycle. As a result, he sustained
grievous injuries and immediately, he was taken to Government
Head Quarters Hospital at Nagercoil and thereafter, he took
treatment at Mathias Hospital at Nagercoil. According to the
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C.M.A(MD)No.1527 of 2010
claimant, the respondents 1 & 2 are the owners of the motorcycle
bearing Registration No.KRQ-1468. The third respondent was the
dirver of the said vehicle and the fourth respondent is the insurer of
the said vehicle. The claimant is the owner of the motorcycle
bearing Registration No.TN-74-B-8686 and R5 & R6 are the insurers
of the claimant's vehicle. They are liable to pay compensation.
3. The claim petition was resisted by the respondents disputing
the manner of the accident and their liability to pay compensation.
4. To prove the negligence, the claimant gave evidence as
P.W.1. In support of his oral evidence, he produced Ex.P1-
observation mahazar, Ex.P2-sketch, Ex.P3-report of the Motor
Vehicle Inspector. The third respondent was examined as R.W.1 and
in his evidence, he has stated that on 28.07.1996 at 11.45 p.m.,
when he was pushing the vehicle No.KRQ-1468 at the left side on
Nagercoil-Kanyakumari road near Ganaga Textiles at Kottar, the
petitioner, who was riding the motorcycle bearing Registration
No.TN-74-B-8686, came in a rash and negligent manner and
rammed the motorcycle, in which, he was sustained injury.
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C.M.A(MD)No.1527 of 2010
5. The Tribunal, taking note of the fact that the criminal case
was registered against the claimant, the claim petition was filed
after a lapse of 4 years and no other evidence except P.W.1
produced to prove the negligence, dismissed the claim petition.
Questioning the said findings, the present appeal has been filed.
6. Heard Mr.F.Deepak, learned counsel appearing for the
appellant and Mr.J.S.Murali, learned counsel appearing for the
respondents 4 to 6 and perused the materials available on record.
7. In the instant case, it is not in dispute that the claimant
sustained injury in the accident that had taken place on 28.07.1996,
but the question is how he sustained injury. It is the case of the
claimant that on a fateful day, he was proceeding from North to
South direction on Kanyakumari - Nagercoil road and at the time,
the vehicle driven by the third respondent from opposit direction
dashed against the motorcycle.
8. Admittedly, the claimant did not prefer any complaint
against the third respondent and on the other hand, a criminal case
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C.M.A(MD)No.1527 of 2010
was registered against the claimant/appellant herein and he was
also prosecuted before the Criminal Court. Ex.P5 shows that he was
acquitted in the criminal case by the learned Judicial Magistrate
No.II, Nagercoil in C.C.No.622 of 1997.
9. It is the submission of the learned counsel for the appellant
that standard of proof before the Criminal Court and the Tribunal is
totally different and proof of preponderance of probabilities is
sufficient and the negligence need not be proved beyond reasonable
doubt. The decision of the Hon'ble Apex Court reported in Live Law
in Civil Appeal os.4010-4011 of 2020 in Anita Sharma & Ors.
Vs. The New India Assurance C. Ltd., & Anr, is relied on in
support of his contentions, wherein the Hon'ble Apex Court at
paragraph-22 has held as follows:-
“22. Equally, we are concerned over the failure of
the High Court to be cognizant of the fact that strict
principles of evidence and standards of proof like in a
criminal trial are inapplicable in MACT claim cases. The
standard of proof in such like matters is one of
preponderance of probabilities, rather than beyond
reasonable doubt. One needs to be mindful that the
approach and role of Courts while examining evidence in
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C.M.A(MD)No.1527 of 2010
accident claim cases ought not to be to find fault with
non-examination of some best eye-witnesses, as may
happen in a Criminal trial; but, instead should be only to
analyze the material placed on record by the parties to
ascertain whether the claimant's version is more likely
than not true. A somewhat similar situation arose in
Dulcina Fernandes v. Joaquim Xavier Cruz wherein this
Court reiterated that:
7. It would hardly need a mention that
the plea of negligence on the part of the first
respondent who was driving the pick-up van
as set up by the claimants was required to be
decided by the learned Tribunal on the
touchstone of preponderance of probabilities
and certainly not on the basis of proof beyond
reasonable doubt.”
10. There is no dispute with regard to the proposition
suggested by the learned counsel for the appellant. But in the case
on hand, whether the claimant has proved the preonderance of
probabilities is the question. For the injuries sustained in the
accident on 28.07.1996 the claim petition came to be filed after a
lapse of 4 years. In the course of cross-examination P.W.1 has
admitted that he did not prefer any complaint. The Tribunal found
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C.M.A(MD)No.1527 of 2010
that the testimony of P.W.1 was untrustwothy. That apart, no witness
was examined to corroborate the evidence of P.W.1. The mere fact
that the claimant was acquitted in the criminal case cannot be a
ground to hold that the driver of the opposite vehicle was negligent
at that relevant time and it is for the claimant to prove the same
atleast on preponderance of probabilities. Considering the above
aspect, the Tribunal held that the accident did not take place as
projected by the claimant. So, I find no reason to interfere with the
findings of the Tribunal and hence, the appeal fails and it is
dismissed. No costs.
23.02.2021
am
Internet:Yes/No
Index : Yes/No
Note: In view of the present lock down
owing to COVID-19 pandemic, a web copy
of the order may be utilized for official
purposes, but, ensuring that the copy of
the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
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C.M.A(MD)No.1527 of 2010
To
1.The Motor Accident Claims Tribunal
(Principal Sub Court), Nagercoil.
2.V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.1527 of 2010
K.KALYANASUNDARAM.J.,
am
C.M.A(MD)No.1527 of 2010
23.02.2021
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