BY AD vs SRI. P.JACOB MATHEW

BY ADVS. R1 TO R3 BY SRI. S.K.BALACHANDRAN SRI. K.M.BIJU(K/563/2008) SRI. A.S.FARIDIN(K/1404/2003) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON

02.04.2025, THE COURT ON 04.04.2025 DELIVERED THE FOLLOWING: M.A.C.A. No. 1274/2024 : 3 : JOHNSON JOHN, J. --------------------------------------------------------- M.A.C.A No.1274 of 2024 -------------------------------------------------------- Dated this the 4th day of April, 2025. JUDGMENT The 3rd respondent insurance company in O.P.(MV) No. 806 of 2017 on the file of the Motor Accident Claims Tribunal, Alappuzha filed this appeal challenging the liability of the insurance company to pay compensation.

2. The claim petitioners are the legal representatives of the deceased Ajith Kumar. According to the claim petitioners, on

25.12.2011, while the deceased was travelling in an auto rickshaw driven by the 2nd respondent, motorcycle ridden by the 1st respondent in a rash and negligent manner hit the autorickshaw and the deceased, who sustained severe injuries, succumbed to his injuries while undergoing treatment in the hospital on 13.01.2012.

3. According to the claim petitioners, the accident occurred because of the negligence on the part of respondents 1 and 2. The 3rd respondent is the insurer of the autorickshaw. M.A.C.A. No. 1274/2024 : 4 :

4. Before the Tribunal, PWs 1 to 5 were examined and Exhibits A1 to A14 were marked from the side of the petitioners and no evidence adduced from the side of the respondents.

5. The Tribunal recorded a finding of composite negligence in the ratio 50:50 as against respondents 1 and 2 and awarded a total compensation of Rs.9,69,010/- to the petitioners. The Tribunal also directed the 3rd respondent to deposit the award amount and permitted the 3rd respondent to recover 50% of the amount from the 1 st respondent

6. Heard Sri. Jacob Mathew, the learned counsel for the appellant and Sri. S.K. Balachandran, the learned counsel for the respondents/claim petitioners.

7. The appellant is challenging the finding of composite negligence recorded by the Tribunal and the direction to deposit the entire award amount and thereafter, to recover 50% from the 1st respondent.

8. The learned counsel for the appellant argued that the evidence of PW4 and Exhibit A7 final report in Crime No. 393 of 2011 of Edathua M.A.C.A. No. 1274/2024 : 5 : Police Station will show that the negligence on the part of the 1 st respondent caused the accident and there is nothing in the evidence of PW4 Investigating Officer and Exhibit A7 charge sheet to indicate any negligence on the part of the 2nd respondent, driver of the autorickshaw.

9. PWs 1 to 3 and 5 are the occurrence witnesses examined from the side of the petitioners to prove composite negligence on the part of respondents 1 and 2.

10. PW1 is the wife of the deceased and she was also a passenger in the autorickshaw involved in the accident. According to PW1, the 2 nd respondent was driving the auto rickshaw in an excess speed and in negligent manner and that there was negligence on the part of the 1 st respondent, rider of the motorcycle and the 2nd respondent, driver of the auto rickshaw.

11. PW2 deposed that he witnessed the occurrence and according to PW2, both the vehicles were in over-speed and the accident occurred when the driver of the auto rickshaw suddenly turned the vehicle towards right. The 2nd respondent, driver of the autorickshaw is M.A.C.A. No. 1274/2024 : 6 : examined as PW3. According to PW3, the motorcycle was ridden in over-speed. However, he also stated that at the time of occurrence, he was also driving the auto rickshaw in speed and that there was negligence on the part of the rider of the motorcycle and the driver of the autorickshaw.

12. PW5 is another occurrence witness and he also deposed that there was negligence on the part of the driver of the auto rickshaw and rider of the motorcycle and that the accident occurred when the driver of auto rickshaw suddenly turned the vehicle towards right.

13. In New India Assurance Co.Ltd. v. Pazhaniammal and Others (2011(3) KHC 595), this Court held that as a general rule, 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. In the said decision, it was also held that if any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence and 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 M.A.C.A. No. 1274/2024 : 7 : case, the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. It was further held that in all other cases, such charge sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act.

14. The decision of the Hon'ble Supreme court in Mathew Alexander v. Muhammed Shafi (2023 INSC 621) shows that strict proof of an accident caused by a particular vehicle in a particular manner need not be established by the claimants and that the claimants need only to establish their case on the touchstone of preponderance of probabilities. In the said case, it was also held that the standard of proof beyond reasonable doubt cannot be applied while considering the petition seeking compensation on account of death or injury in a road traffic accident.

15. In Jiju Kuruvilla v. Kunjujamma Mohan [2013 (3) KLT 261], the Honourable Supreme Court held thus: “24. The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. depends on number of M.A.C.A. No. 1274/2024 : 8 : factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.”

16. It is pertinent to note that the appellant insurance company has not examined any witness before the Tribunal and therefore, on a careful re-appreciation of the available evidence, I find no reason to interfere with the finding of the Tribunal regarding composite negligence on the part of respondents 1 and 2.

17. The learned counsel for the appellant insurance company argued that in spite of recording a finding of composite negligence in the ratio of 50:50, the Tribunal directed the appellant insurance company to pay the entire award amount to the claim petitioners and thereafter, to recover 50% of the amount from the 1st respondent and the said direction is not legally sustainable.

18. But, the learned counsel for the claim petitioners cited the decision of the Honourable Supreme Court in Khenyei v. New India M.A.C.A. No. 1274/2024 : 9 : Assurance Co. Ltd. and others [2015 (3) KHC 70], wherein the Honourable Supreme Court held that when the accident is caused by composite negligence, it is open to a claimant to recover entire compensation from one of the joint tort feasors as the liability of joint tort feasors is joint and several.

19. In view of the above legal position, I find that the contention of the appellant in this regard is not legally sustainable. Therefore, I find that this appeal is devoid of merit and is liable to be dismissed. In the result, this appeal is dismissed. Rv sd/- JOHNSON JOHN, JUDGE.