Negligence must be proven by claimants in applications under Section 166 of the Motor Vehicles Act; acquittal in criminal proceedings does not suffice as evidence of negligence.

JUDGMENT :

This appeal under Section 173 of the Motor Vehicles Act, 1988 (the Act) has been filed by the first respondent/owner-cum- driver in O.P.(MV) No.1341/2012 on the file of the Motor Accidents Claims Tribunal, Thrissur, (the Tribunal) aggrieved by the right of recovery granted to the second respondent/insurer. The 1^st respondent herein is the second respondent/insurer and respondents 2 to 7 herein are the claim petitioners in the petition. In this appeal, the parties and the documents will be referred to as described in the original petition.

2. According to the claimants, on 01/03/2009 at about 02:45 p.m., while the first claimant along with a pillion rider was riding motorcycle bearing registration No.KL46B2335 through Guruvayoor-Kunnamkulam public road and when he reached the place by name Chattukulam, a scooter bearing registration No.KL10N2466 driven by the first respondent/owner-cum-driver which was going in the front, abruptly and negligently took a right turn and hit the vehicle of the first claimant as a result of which he sustained injuries. The incident occurred due to the rash and negligent driving of the first respondent/owner-cum-driver of the scooter. Hence, the claimants/petitioners claimed a sum of Rs. 4,00,000/- as compensation under various heads.

3. The first respondent/owner-cum-driver filed written statement denying rashness and negligence on his part. The age, occupation, income etc. of the first claimant were disputed.

4. The second respondent/insurer filed written statement admitting the existence of a valid policy in respect of the offending vehicle. However, the age, income etc. of the first claimant were challenged. It was also contended that the first respondent/owner-cum-driver did not had a valid driving licence at the time of the incident.

5. Before the Tribunal, no oral evidence was adduced by either side. Exts.A1 to A14 were marked on the side of the claimants/petitioners and Exts.B1 to B4 were marked on the side of the respondents.

6. The Tribunal on a consideration of the documentary evidence and after hearing both sides, found negligence on the part of the first respondent/owner-cum-driver of the offending vehicle resulting in the incident and hence awarded Rs. an amount of 1,79,260/- together with interest @ 8% per annum from the date of the petition till realisation along with proportionate costs. Aggrieved by the Award, the first respondent/owner-cum- driver has come up in appeal.

7. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the Tribunal calling for an interference by this Court.

8. Heard both sides.

9. The learned counsel for the first respondent/owner-cum-driver of the scooter bearing registration No.KL10N2466 submits that there is no evidence on record to prove rashness or negligence on his part. In support of the said argument, reference was made to Ext.B1 judgment in C.C. No.614/2009 as per which the first respondent/owner-cum-driver has been acquitted of the offences punishable under Sections 279, 338 IPC and Section 3(1) read with Section 177 of the Act. The argument advanced is that when no rashness or negligence on his part has been proved, the Tribunal was not justified in awarding compensation to the claimant/injured in an application under Section 166 of the Act. The learned counsel for the second respondent/insurer submits that if no negligence is proved, then the insurer will have no liability to pay compensation and the original petition will have to be dismissed.

10. It is well settled that in an application under Section 166 of the Act, negligence of the driver of the offending vehicle has to be proved to make the owner and insurer liable. [Minu B. Mehta v. Balkrishna Ramchandra Nayan, 1977 KHC 553 : (1977) 2 SCC 441, and Reshma Kumari v. Madan Mohan, 2013 KHC 4253 : (2013) 9 SCC 65 ]. Admittedly, Ext.B1 is the copy of the judgment in C.C. No.614/2009 by which the first respondent/owner-cum-driver has be