New India Assurance Vs. Pazhaniammal [Kerala High Court, 20-07-2011]

Law of Torts – Negligence – Motor Vehicles Act, 1988 – Sections 140, 163 A and 166 – Tribunals should play the dynamic role expected of them under a welfare legislation in a socialist republic to effectively and expeditiously translate the compassion of the legislature into tangible benefits to the victims.

# Negligence

# 2011 (3) KLT 648 : 2011 (3) KLJ 511 : ILR 2011 (3) Ker. 677

IN THE HIGH COURT OF KERALA AT ERNAKULAM

R.BASANT AND N.K.BALAKRISHNAN JJ.

Dated this the 20th day of July, 2011

M.A.C.A. No. 1700 of 2008

For the Petitioner: KKM. Sherif, A.A. Ziyad Rahman; For the Respondent: Sheji P. Abraham

J U D G M E N T 

BASANT, J.

# Should negligence be proved invariably in all claims for compensation under Section 166 of the Motor Vehicles Act?

# What is the quality of negligence to be proved and the extent of proof required?

These questions arise for consideration in this appeal.

2. Insurer is the appellant. The insurer assails the award of the Tribunal directing payment of an amount of Rs.2,53,700/- to the claimant who is the mother of the deceased. The deceased was a passenger in a vehicle insured with the appellant. While the vehicle was being driven, it is alleged that the deceased made some movements inside the jeep. The door of the jeep opened and he was consequently thrown outside the jeep. This is the alleged incident.

3. The Tribunal even in the absence of any better evidence came to the conclusion that the owner, driver and insurer of the vehicle are liable to compensate the claimants. No specific finding on the question of negligence was entered.

4. The insurer assails the impugned award on the short ground that the Tribunal erred in directing payment of amounts under Section 166 of the Motor Vehicles Act in the absence of a specific finding about negligence on the part of the driver or owner of the vehicle. The learned counsel for the Insurance Company argues that even today the foundation of liability under Section 166 of the Motor Vehicles Act must be traced under the Law of Torts. Negligence is the foundation of liability and Section 166 of the Motor Vehicles Act provides only an expeditious and inexpensive forum and method to claim compensation.

5. We are inclined to agree with the learned counsel for the appellant on that question of law. The foundation of liability is still negligence. The liability sought to be enforced under Section 166 is again founded on the Law of Torts. In these circumstances in the absence of satisfaction entertained in the mind of the court about the existence of negligence, the direction for payment of compensation cannot obviously be justified.

6. But the quality of negligence which a claimant is to establish in proceedings under Section 166 of the Motor Vehicles Act is certainly inferior. We cannot afford to forget or ignore that we are living in the post Section 140/163 A era and insistence on proof of negligence must be realistically understood. Culpable negligence need not be proved. It is enough if the court is satisfied about the existence of negligence. The Rule in Rylands v. Fletcher (1861-1873 All.E.RI.) will certainly apply. The doctrine of res ipsa locquitur will also apply. Consequently, a Tribunal should not ritualistically insist on oral evidence to prove negligence. It is sufficient that negligence on the part of the driver or owner is established from the totality of circumstances. Reliance is placed on the dictum in

# Kaushnuma Begum v. New India Assurance Co.Ltd. (2001 (1) KLT 408 (SC)).

That was a case where one of the wheels of the vehicles gave way and an accident occurred and the Supreme Court took the view that the Rule in

# Rylands v. Fletcher (1861-1873 All.E.RI.)

would apply. It is certainly not the law emanating from that judgment that negligence need not be proved at all in a claim under Section 166 of the Motor Vehicles Act. We agree with the learned counsel for the appellant that negligence has to be proved.

7. In this context we feel it appropriate to refer to the practice adopted by many Tribunals in the State. Wherever a crime has been registered in respect of the accident and the investigation has culminated in the filing of a charge sheet by the police, such charge sheet is filed and the same is reckoned as sufficient to establish negligence on the part of the indictee. The practice has not received formal judicial approval and hence some Tribunals insist on oral evidence in support of negligence invariably. This consumes a lot of judicial time and the heavily over worked Tribunal spends its time on unnecessary oral evidence of negligence. We would certainly not want the Tribunals to be prisoners of the conclusions of police officers. If the Tribunal finds it suspicious, it can insist for better evidence. But as a general rule it can safely be 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. A system cannot feed itself on a regular diet of distrust of the police. Prima facie, charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. 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 case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. 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. We mean to say that on production of such charge sheet the shifting of burden must take place. It is not as though we are not conscious of the dangers and pit falls involved in such an approach. But we feel that adoption and recognition of such practice would help to reduce the length of the long queue for justice before the Tribunals. The judicial recognition of the practice will help the Tribunals to ensure the optimum use of judicial time at their disposal for productive ventures.

8. We do not intend to say that collusive charge sheets need be accepted. Wherever on the facts of a given case the Tribunals feel that the police charge sheet does not satisfy their judicial conscience, the Tribunals can record that the charge sheet cannot be accepted and can call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged negligence. In such a case, the issue of negligence must be decided on the other evidence, ignoring the charge sheet.

9. The only question in this case is whether even in the absence of a specific finding on the question of negligence by the Tribunal, the impugned award is justified. The driver is in charge of the vehicle. He is responsible for the safety of all passengers in the vehicle. It is up to him to ensure that the doors are properly locked/fastened before he starts driving the vehicle. This burden on him is elementary and fundamental in the interests of the safety of persons who are being carried in his vehicle. The duty of the driver to the passenger must include the elementary duty of ensuring that the doors are properly fastened/locked before the vehicle is started. In the instant case the only evidence available is that while the deceased was travelling as a passenger, he made some movement; the door gave way; It opened and the passenger was thrown out of the vehicle. Certainly in these circumstance negligence on the part of the driver lies in the fact that he did not insist that the doors are properly locked and fastened before he started the vehicle. The accident speaks for itself. The owner and the driver have no contra assertion. It cannot be held as a rule of law that a driver is not responsible if the door of the vehicle opens consequent to some movement of the passengers inside the jeep and one of the passengers is thrown away from the jeep. The negligence in the instant case lies in the fact that the driver had admittedly not ensured that the doors are properly fastened/locked before he started the vehicle. On that negligence the victim is certainly entitled to compensation. There is no case that the doors which were properly fastened/locked were opened by any of the passengers negligently. Such a plea if any should certainly come from the driver/owner. In the absence of such a plea the negligence which is evidently established from the totality of facts and circumstances clearly constitute the foundation of the direction to pay compensation. Even though the Tribunal had not approached the question from this angle, we are of the opinion that the ultimate direction of the Tribunal is justified in the facts and circumstances of this case.

10. Notwithstanding Section 140 and 163 A of the Motor Vehicles Act even now in a claim under Section 166 of the Motor Vehicles Act negligence has to be established. But the quality of evidence to prove negligence and the extent of negligence to be established is certainly different from culpable negligence punishable under the criminal law. Tribunals cannot look at the question as an umpire in an adversarial litigation between parties. Even in the absence of specific pleadings and evidence, if the totality of the circumstances convince the Tribunal that there has been negligence, the Tribunal will certainly be justified in passing an award under Section 166 of Motor Vehicles Act. Tribunals called upon to discharge the legislature mandate of ensuring just and reasonable compensation to the victims cannot function merely as umpires in an adversarial litigative process. The Tribunals should play the dynamic role expected of them under a welfare legislation in a socialist republic to effectively and expeditiously translate the compassion of the legislature into tangible benefits to the victims. The primary mandate to and the very purpose of constitution of the Tribunal under the provisions of the Motor Vehicles Act is to ensure just and reasonable compensation to the victims and the Tribunal should not and can never afford to ignore that basic tenet. In that view of the matter we are satisfied that the materials available sufficiently justify the impugned award.

11. No other contentions raised. This appeal is in these circumstances dismissed.

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