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.
C.T.RAVIKUMAR & MARY JOSEPH, JJ.
M.A.C.A.No.558 of 2013
Dated 28th March, 2016
AGAINST THE AWARD IN OP(M.V)No.767/2005 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, ATTINGAL DATED 16-11-2012
APPELLANT / APPLICANT
THIRUVANANTHAPURAM. BY ADV. SRI.C.R.SIVAKUMAR
RESPONDENTS / RESPONDENTS
2. VICTOR JIMMY
3. THE ORIENTAL INDIA INSURANCE CO LTD., AMARJYOTHI COMPLEX, KADAPPAKADA (P.O), KOLLAM DISTRICT, REPRESENTED THROUGH THE MANAGER PIN-691008.
R3 BY ADV. SRI.VPK.PANICKER BY SRI.GEORGE CHERIAN (THIRUVALLA)
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 ₹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 ₹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 ₹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%. 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. 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 3 rd 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.”
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 nonproduction 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:-
കൃത്യത്തിൽ ഉൾപ്പെട്ട വാഹനം കൃത്യസമയം ഓടിച്ചിരുന്ന 1 സാക്ഷിയുടെ MDL നോക്കിയതിൽ 752/ATL/2002 period fr om 12.8.2002 to 11.8.2022 എന്നും രേഖപ്പെടുത്തി കാണുന്നു.
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.