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2016 DIGILAW 349 (KER)

Libash v. Ajesh, K. R. Gardens

2016-03-28

C.T.RAVIKUMAR, MARY JOSEPH

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JUDGMENT : C.T. Ravikumar, J. This appeal is directed against the award dated 16.11.2012 in O.P.(M.V)No. 767 of 2005 of the Motor Accidents Claims Tribunal, Attingal. The appellant was the claimant therein. He filed the claim petition under Section 166 of the Motor Vehicles Act seeking compensation for the injuries sustained by him in a motor vehicle accident occurred on 21.5.2005 while he was riding a motor cycle. On that day, he was riding a motor cycle bearing Reg.No.KL-01/R-1940. When the said vehicle reached near Gurukulam junction, the offending vehicle which is a private stage carriage bearing Reg.No.KL-16/5859 came from the opposite direction and dashed against his motor cycle and consequently, he sustained injuries. He was taken to Medical College Hospital, Thiruvananthapuram and Ext.A6 discharge card would reveal that he had been an inpatient there from 21.5.2005 to 1.7.2005. Ext.A3 treatment certificate would reveal that he sustained the following bodily injuries owing to the accident:- "(1) Comminuted fracture proximal third of Right femur. (2) Type III compound fracture both bones right forearm." The injuries sustained by him resulted in permanent disability. It is in the said circumstances that the appellant filed O.P.(M.V) No. 767 of 2005 seeking a compensation of Rs. 8,00,000/-. In support of his claim, the appellant got marked Exts.A1 to A14. Both sides did not adduce any oral evidence before the Tribunal and in fact, on the side of the respondents no documentary evidence was also adduced. The Tribunal analysed the evidence on record and appreciated the rival contentions and passed the impugned award assessing the compensation payable as Rs. 7,11,500/-. However, in the light of the specific finding of the Tribunal that the appellant had also contributed to the accident and consequential apportionment of contributory negligence between the appellant and the driver of the offending vehicle equally he was found entitled only to get only 50% of the compensation awarded. Consequently, the Tribunal passed an award for Rs. 3,55,750/- with interest at the rate of 7.5% per annum from the date of petition till the date of expiry of a period of 60 days from the date of award (16.11.2012). The 3rd respondent-insurance company was directed to deposit the amount awarded together with interest within the above mentioned period and in case of failure to deposit the amount within the above stipulated period the rate of interest would stand enhanced to 12%. The 3rd respondent-insurance company was directed to deposit the amount awarded together with interest within the above mentioned period and in case of failure to deposit the amount within the above stipulated period the rate of interest would stand enhanced to 12%. It is mainly feeling aggrieved by the contributory negligence attributed on him and the consequential reduction of 50% of the amount of compensation that the captioned appeal has been preferred. 2. Heard the learned counsel on both sides. 3. In the light of the arguments advanced before us and taking note of the contentions raised in the appeal it is obvious that the question to be considered in this appeal is whether the challenge against the twin reasons assigned by the Tribunal for holding contributory negligence against the appellant are sustainable ? A careful scanning of the impugned award would reveal that for arriving at the conclusion that the appellant had contributed to the accident and for apportioning the contributory negligence equally between the appellant and the 2nd respondent, the driver of the other vehicle involved in the accident the Tribunal firstly assigned the reason that the appellant had not produced the driving licence to establish that at the time of the accident he was possessing a valid driving licence. The second reason assigned by the Tribunal is to the effect that since the road was having a clear straight vision of 100 metres, on seeing that the other vehicle coming to his direction though through the wrong side, the appellant ought to have taken his vehicle further to the left side of the road, i.e, towards the road margin having more than 2 metres and averted the accident. In short, the Tribunal found that since the appellant did not take his vehicle further to the left side of the road to avert such an accident despite the fact that space was available on the road margin, he had contributed to the accident. 4. We will firstly consider the question whether the first reason assigned by the Tribunal for attributing contributory negligence on the appellant could be sustained ? There can be little doubt with respect to the position that the question of contributory negligence would arise only when some act or omission on the part of the claimant had materially contributed to the accident which could be properly described as negligence. There can be little doubt with respect to the position that the question of contributory negligence would arise only when some act or omission on the part of the claimant had materially contributed to the accident which could be properly described as negligence. Though negligence ordinarily means breach of a legal duty to care, when the expression 'contributory negligence' is used it could not be taken that there was breach of any duty. It can only be taken that there was failure by a person to use reasonable care for the safety of either himself or his property so as to make himself blameworthy, in part, as an author of his own wrong. (See the decision of the Hon'ble Apex Court in Pramodkumar Rasikbhai Jhaveri v. Karmasey Kunvargi Tak and others ( AIR 2002 SC 2864 )). In this case, the Tribunal found failure on the part of the appellant in not producing the driving licence and held that the production of the driving licence would have been the best evidence to show that he was authorised to drive a motor cycle on the date of the accident. In this context, it is relevant to note that in the impugned award itself it was specifically noted that no such contention had been taken up by the 3rd respondent, the insurance company viz., the only contested party. Needless to say that no such contention was raised by any of the respondents. Obviously, the driver and the owner of the offending vehicle had remained ex parte before the Tribunal. Point No. 2 was framed by the Tribunal thus:- "Whether the petitioner-claimant sustained grievous bodily injuries in the accident ? If so, what is the quantum of compensation payable to the petitioner-claimant ?" The Tribunal observed thus:- "The petitioner-claimant is aged 23-24 years, and the fact as to whether he was having valid driving licence at the time of the accident to ride the motorcycle KL-01/R-1940 is not proved to the notice of the Tribunal inasmuch as the 3r d respondent insurance company, who is alone seen contesting the petition, has not taken a contention that, the petitioner-claimant was not having a valid driving licence to ride the motorcycle at the time of the accident. But, it is to b e seen that though the 3rd respondent-insurance company has not taken such a contention, the driving licence being the best piece of evidence evidently being in the possession of the petitioner-claimant showing him to have not substantially contributed to the occurrence of the accident, the petitioner-claimant ought to have produced a copy of his driving licence before the Tribunal which he is not seen to have done in the proceedings for no reason made known to the Tribunal whatsoever." (emphasis supplied) 5. From the aforeextracted paragraph it is very much evident that the 3rd respondent, the insurer of the offending vehicle alone had contested the matter and at the same time, the insurance company had not taken up a contention that at the time of the accident the appellant - claimant was not having a valid driving licence. When that fact was not at all raised as a disputed question and when it was nobody's case that he was not having a valid driving licence there was absolutely no reason for the appellant to produce the driving licence before the Tribunal. The question of taking adverse inference would arise only in a case where a party who is in possession of a document when called upon to produce the same withholds it without any sustainable and justifiable reason. In this case, as noticed hereinbefore, there was absolute absence of any dispute on that matter and the one and the only party who contested the matter did not take up any such contention. In such circumstances, we are at a loss to understand the reason that persuaded the Tribunal to hold non-production of the driving licence by the appellant as one of the reasons for arriving at the conclusion that he had contributed to the accident. In this context, another crucial and vital aspect discernible from Ext.A5 is to be taken into account. Ext.A5 is the copy of the charge sheet dated 27.11.2005 in Crime No. 540/2005 of Varkala Police Station registered in connection with the accident in question. It is noted therein thus:- VERNACULAR MATTER The accident occurred on 21.5.2005. Indisputably, it is the appellant who was referred to as first witness in Ext.A5. Ext.A5 would reveal that the first charge witness therein was the claimant/appellant herein. It is evident from Ext.A5 itself that the accident occurred on 21.5.2005 at about 4.10. It is noted therein thus:- VERNACULAR MATTER The accident occurred on 21.5.2005. Indisputably, it is the appellant who was referred to as first witness in Ext.A5. Ext.A5 would reveal that the first charge witness therein was the claimant/appellant herein. It is evident from Ext.A5 itself that the accident occurred on 21.5.2005 at about 4.10. p.m. Certainly, it is well within the validity period of licence possessed by the appellant. When such a fact was very much discernible from Ext.A5 itself it was absolutely unnecessary and unjustifiable for the Tribunal to take the factum of non-production of driving licence by the petitioner/appellant as one of the reasons for holding contributory negligence on the part of the appellant. That apart, the settled position of law is to the effect that the question of negligence or contributory negligence has to be specifically pleaded and proved by the insured or the insurer if they want to rely on such a fault against the claimant - injured to defeat his claim in its entirety or to the extent of his contribution to the accident. In this case, the insurer did not take up such a contention of contributory negligence against the appellant. True that, in the written statement the 3rd respondent contended that the accident occurred due to the negligence on the part of the appellant. However, they did not adduce any evidence at all to prove the same. True that, it was the appellant who filed the claim petition under Section 166 of the M.V. Act and therefore, the onus was on him to prove negligence on the part of the driver of the other vehicle as the cause of the accident to succeed in the claim. The appellant had produced Exts.A1, A2 and A5 charge sheet. Going by the decision in New India Assurance Co. Ltd. v. Pazhaniammal ( 2011 (3) KLT 648 ) charge sheet in a crime registered in connection with the accident is sufficient prima facie evidence of negligence in a claim petition filed under Section 166 of the M.V.Act. When that be the prima facie sufficient evidence available, in order to escape the inevitable conclusion the respondents ought to have adduced rebuttal evidence, to defeat the claim of the appellant. Obviously, the respondents had not adduced any such rebuttal evidence. 6. When that be the prima facie sufficient evidence available, in order to escape the inevitable conclusion the respondents ought to have adduced rebuttal evidence, to defeat the claim of the appellant. Obviously, the respondents had not adduced any such rebuttal evidence. 6. Now, the question is whether the other reason assigned by the Tribunal mentioned hereinbefore, viz., his action in not swerving his motor cycle and taking it to the road margin to avert the accident could be a sustainable reason for holding that the appellant had contributed to the accident? In that context, it is relevant to note the recital in paragraph 7 of the impugned judgment. In Ext.A1 F.I.R. dated 22.5.2005 the 2nd respondent, the driver of the private stage carriage bearing Reg.No.KL-16/5859 alone was made the accused. Still, neither the second respondent nor the first respondent - the owner of the said vehicle contested the matter. Even in this proceedings they did not participate. Evidently, the first respondent, despite the receipt of notice, has, for reasons best known to him, did not appear and contest the matter. Notice by paper publication was taken out in the case of the 2nd respondent who drove the private stage carriage bearing Reg.No.KL-16/5859. Paragraph 7 of the impugned judgment would reveal that the Tribunal took note of the fact that Ext.A2 scene mahazar would show that the road in question which is a public road between Mutt junction - Sreenivasapuram had a width of 5 metres and 30 cms. Ext.A2 would also reveal that there was a space of 2.40 metres and 2.20 metres on either side of the road adding to the width of the road. The place of occurrence, going by the recital in Ext.A2 is 90 cms. towards the south from the northern tarred end of the road. The road lies in the east-west direction. Ext.A2 would also reveal the fact that damage was caused to the right side of the offending vehicle viz., the bus. As noticed hereinbefore, the total width of the road was 5 metres and 30 cms. and when it is stated that the place of occurrence was 90 cms. towards south from the northern tarred end it would suggest that the accident occurred on the wrong side of the private stage carriage bearing Reg.No.KL-16/5859. As noticed hereinbefore, the total width of the road was 5 metres and 30 cms. and when it is stated that the place of occurrence was 90 cms. towards south from the northern tarred end it would suggest that the accident occurred on the wrong side of the private stage carriage bearing Reg.No.KL-16/5859. Thus, going by Ext.A2 scene mahazar carrying the description regarding the width of the road in question at the relevant spot, the road vision and the place of occurrence and taking into account the directions to which the vehicles involved in the case were then proceeding it can only be said that the accident occurred clearly on the wrong side of the private stage carriage and the said vehicle intruded into its wrong side by 1.75 metres and dashed against the motor cycle ridden by the appellant. In such circumstances and position obtained from the evidence on record how could the appellant be attributed with negligence or contributory negligence ? As noticed hereinbefore, the driver and owner of the private stage carriage did not participate in the proceedings before the Tribunal and they also, had not chosen to appear and contest the matter before the Court. What is the better evidence, rather the rebuttal evidence adduced by the third respondent, the insurer of the said private stage carriage to establish that the accident occurred either due to the negligence of the appellant or due to his contributory negligence. We have already found that the appellant had produced Ext.A5 charge sheet laid in Crime No. 540 of 2005 of Varkala Police Station registered in connection with the accident in question, arraigning the 2nd respondent, the driver of the private stage carriage bearing Reg.No.KL-16/5859 and thus produced prima facie sufficient evidence, in the light of Pazhaniyammal's case (supra), to prove negligence for the purpose of a claim under Section 166 of the M.V. Act. It is pertinent to note that the sole respondent who contested the matter before the Tribunal viz., the insurance company did not adduce any oral or documentary evidence before the Tribunal. Since the term 'negligence' ordinarily carries the meaning 'breach of a legal duty to care' in the light of the factual position obtained from the evidence on record, it cannot be said that the accident occurred due to the negligence of the appellant. Since the term 'negligence' ordinarily carries the meaning 'breach of a legal duty to care' in the light of the factual position obtained from the evidence on record, it cannot be said that the accident occurred due to the negligence of the appellant. After referring to the Promod Kumar Rasikbhai Thaveri's case (supra) we have already found that when negligence is used in the expression 'contributory negligence' it could not be taken to mean 'breach of any duty' and it could only be taken that there was failure by a person to use reasonable care for the safety of either himself or his property so as to make himself blameworthy, in part, as an author of his own wrong. The question is what is the evidence let in by the 3rd respondent - insurance company or available in evidence on record so as to hold him guilty of contributory negligence? What was his blameworthy act or omission ? There is absolute absence of any evidence in that regard. The question of contributory negligence arises when there has some act or omission from the part of the claimant that materially contributed to the accident and is of such a nature describable as 'negligence'. It is the application of the maxim 'in pari delicto, potior est condifio defendentis' means 'when both parties are equally to blame, neither can hold the other liable' that acts as the principle underlying the doctrine of contributory negligence. There can be no doubt with respect to the position that apportionment of liability amongst joint-tort feasors is permissible. But that question arises only if there is evidence to hold that the claimant had materially contributed to the accident that resulted in the injury. There is no semblance of evidence suggesting an act or omission from the part of the appellant that has materially contributed to the accident resulting in the aforementioned injuries. 7. We have already found that the evidence adduced by the appellant viz., Ext.A5 is a sufficient prima facie evidence of negligence on the part of the 2nd respondent who drove the aforesaid private stage carriage insured with the 3rd respondent. As stated earlier, no evidence whatsoever, either oral or documentary, has been adduced by the 3rd respondent who alone contested the case before the Tribunal. As stated earlier, no evidence whatsoever, either oral or documentary, has been adduced by the 3rd respondent who alone contested the case before the Tribunal. It is also relevant to note that there is no evidence sufficient to import the theory of last opportunity to attribute that the appellant had contributed to the accident. The answer to the said question also depends on the facts discernible from evidence on record as to who had the last effective opportunity to avoid the accident. The mere fact that Ext.A2 scene mahazar revealed the availability of 2.40 metres and 2.20 metres on either side of the road is no reason or ground at all to arrive at a conclusion that the appellant-claimant is guilty of contributory negligence. Since the question as to who had the last effective opportunity to avoid the accident could be answered only based on the facts revealed in evidence and in a claim petition filed under Section 166 of the M.V. Act where the claimant adduced sufficient prima facie evidence to prove negligence on the part of the driver of the alleged offending vehicle and none of the respondents adduced rebuttal evidence to outweigh his evidence the right of the claimant to get compensated cannot be defeated by holding contributory negligence against the claimant based on surmises. Though contributory negligence would only mitigate the liability to the extent of negligence that can be attributed and it would not debar the claim altogether it cannot simply be presumed to deny a claimant his/her entire claim in the absence of acceptable evidence regarding a blameworthy act or omission from the part of the claimant. The reasoning that the appellant was riding a motor cycle, which is more manoevourable as a vehicle than the private stage carriage KL-16/5859 driven by the 2nd respondent also would not justify the presumptive conclusion of contributory negligence on the part of the appellant. We have already found that the inference drawn by the Tribunal to the effect that the appellant was not having a valid driving licence is belied by the very document produced before Ext.A5 which remained unchallenged and in Ext.P5 itself it is specifically stated that the appellant who was the first charge witness was having a valid driving licence to drive the motor cycle. The upshot of the aforesaid discussion is that the finding of the Tribunal that the appellant had contributed to the accident and consequent apportionment of the contributory negligence as 50% are absolutely unsustainable and invite appellate interference. Since such conclusions are arrived at by the Tribunal contrary to the weight of the evidence the said findings could only be said to be perverse. In such circumstances, it is inevitable for this Court to invoke the appellate jurisdiction to set right the conclusions and findings arrived at by the Tribunal in the light of the evidence discussed and authorities referred hereinbefore. Consequently, the said findings are set aside. Going by the impugned award, the Tribunal assessed the compensation payable as Rs. 7,11,500/- with interest at the rate of 7.5% per annum from the date of petition till realisation. Since we have set aside the finding regarding the contributory negligence and the consequential apportionment of the liability we modify the award holding that the appellant is entitled to get the entire amount assessed under the impugned award. In other words, we hold that the appellant is entitled to get the 50% of the assessed compensation withheld based on the finding of and apportionment of, contributory negligence. In the result, the appeal is allowed as above. The third respondent is directed to deposit the balance 50% of the amount assessed by the Tribunal as compensation viz., Rs. 3,55,750/- along with interest already fixed by the Tribunal viz., 7.5% per annum from the date of petition till realisation, within a period of four months from the date of receipt of a copy of this judgment. In case of failure to deposit the amount within the above stipulated time, the amount remaining to be paid will carry interest at the rate of 9% per annum. There will be no order as to costs.