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2024 Supreme(Online)(KER) 36045
HIGH COURT OF KERALA
C. PRATHEEP KUMAR, J
AJITHA – Appellant
Versus
MOHAMMED BASHA – Respondent
MACA 4012/2016
SRI.R.ANILKUMAR SRI.G.RADHAKRISHNAN, S.JAYASREE - SC
The court ruled that contributory negligence must be supported by reliable evidence, and the burden of proof lies with the party disputing the charge sheet.
Headnote:(A) Motor Vehicles Act, 1988 - Section 166 - Appeal against award of compensation - The appellants, legal heirs of deceased, claimed enhanced compensation after the Tribunal awarded only 50% due to contributory negligence - The court found no reliable evidence of negligence on the part of the deceased and modified the compensation accordingly. (Paras 10, 11, 12, 14)
(B) Negligence - Burden of proof - The production of a charge sheet is prima facie sufficient evidence of negligence, and the burden shifts to the party disputing it to provide contrary evidence. (Paras 7, 8)
Facts of the case:
The deceased was driving an autorikshaw when it was hit by a bus, resulting in fatal injuries. The Tribunal found contributory negligence and awarded reduced compensation.
Findings of Court:
The Tribunal's finding of contributory negligence was unsustainable; the compensation was recalculated based on the deceased's income and dependents.
Issues: The main issues were the correctness of the Tribunal's finding of contributory negligence and the quantum of compensation awarded.
Ratio Decidendi: The court ruled that the Tribunal was not justified in attributing contributory negligence to the deceased without reliable evidence, leading to a recalculation of compensation based on the deceased's income and dependents.
Result: The appeal is disposed of directing the insurer to pay an additional compensation of Rs.6,88,700/- to the appellants.
JUDGMENT
[M.A.C.A.4012 of 2016]
Dated : 9 th December, 2024
This is an appeal filed by the petitioners in OP(MV).1162/2011 on the file of the Motor Accident Claims Tribunal, Attingal, against the award dated 28.5.2016 and claiming enhanced compensation.
2. The appellants are the legal heirs and dependents of late Mohandas, who died in a motor vehicle accident that occurred on 24.8.2011. According to the appellants, on 24.8.2011 while the deceased was driving an autorikshaw bearing registration No.KL-16/D-5431 from Alamcode to Vanchiyoor and when he reached near Pallimukku, a private bus bearing registration No.KL-16/B-909 which came from behind, hit on the back side of the autorikshaw and as a result of which he sustained fatal injuries and he succumbed to the injuries at the Medical College, Thiruvananthapuram, while under treatment. The 1 st respondent was the owner, 2 nd respondent was the driver and 3 rd respondent was the insurer of the said bus. According to them, the accident occurred solely due to the negligence of the 2 nd respondent. The appellants claimed a compensation of Rs.14,34,000/-.
3. The respondents 1 and 2 remained ex parte. The 3 rd respondent filed written statement contending that the accident occurred due to the negligence of the deceased. The respondent produced Exts. A1 to A8 documents. The Tribunal, after finding that the compensation due to the appellants is Rs.11,53,600/- held that, there was contributory negligence on the part of the deceased. Therefore, the Tribunal awarded only 50% of the amount of compensation, namely Rs.5,76,800/- to the petitioners. Aggrieved by the above award, they preferred this appeal, raising various grounds. During the pendency of the appeal, appellants 1 and 4 died and appellants 2 and 3 were recorded as their legal representatives.
4. Now the points that arise for consideration are the following : (i) Whether the finding of the Tribunal that there was contributory negligence on the part of the deceased is correct ?
(ii) Whether the quantum of compensation awarded by the Tribunal is liable to be modified ?
5. Heard Sri.G.Radhakirishnan, the learned counsel for the appellants and Smt.S.Jayasree, the learned Standing Counsel for the 3 rd respondent/ Insurance Company.
6. The points:- The 3 rd respondent has admitted the accident as well as the policy. However, they have raised a contention that the accident occurred on account of the negligence of the deceased. In order to prove the negligence on the part of the 2 nd respondent, namely, the driver of the bus, the appellants relied upon Ext.A1 FIR and Ext.A5 charge-sheet. In Ext.A5 the 2 nd respondent is shown as the accused. The Tribunal also relied upon Ext.A5 final report to hold that there was contributory negligence from the side of the deceased. At the time of argument, the learned Standing Counsel also relied upon Ext.A5 Final Report to substantiate her argument that there was contributory negligence on the part of the deceased.
7. As held by this Court in the decision in New India Assurance Co.Ltd v. Pazhaniammal, 2011 (3) KLT 648, the production of charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. If any of the parties do not accept such charge sheet, the burden is on such party to adduce evidence. In the instant case, no evidence was adduced on behalf of the 3 rd respondent to controvert
Ext.A5 final report.
8. It is true that in Ext.A5, there is a statement to the effect that, the deceased while driving autorikshaw, overtook the bus and when another autorikshaw came from opposite direction, the deceased turned his autorikshaw towards left and it was at that time, the bus hit on the autorikshaw. At the same time, in the final report, the allegation of rashness and negligence is alleged only against the 2 nd respondent. Though it is stated in the final report that the deceased had overtaken the bus, there is no whisper in the final repo
