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2021 DIGILAW 212 (KER)

United India Insurance Co. Ltd. , Kochi v. Sarasu

2021-03-03

C.S.DIAS

body2021
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 4th 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. 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. 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 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 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 6th 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 6th respondent. Neither party adduced any oral evidence. 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 6th 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. 2,74,500/-, but held that as the deceased was guilty for contributory negligence to the extent of 25% and the 6th 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 6th 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 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 1st respondent – the driver of the tempo van that the accident occurred 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 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 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. 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. According to him, the appeal is groundless and only liable to be dismissed. 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 1st respondent – the driver of the tempo van – had committed an offence 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 which the charge-sheet will have to be accepted. 21. 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 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 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. 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 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 7th 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 same is deposited by the 7th respondent, in accordance with law.