Insurance companies bear liability for claims unless evidence proves otherwise; failure to produce evidence can support findings of negligence.

JUDGMENT

This appeal is filed by the second respondent/insurance company in O.P (MV) No.542 of 2010 on the file of the Additional Motor Accidents Claims Tribunal, Ernakulam challenging the liability to pay the award amount. The respondents herein were the claimant and 1^st respondent before the tribunal.

2. According to the claimant, on 24.10.2009 at about 6.15 p.m., while the claimant was travelling as a pillion rider on a motorcycle bearing reg. No. KL-07/BF-1837 ridden by the 1st respondent, the 1st respondent suddenly swerved the vehicle to the left and applied the brakes abruptly to avoid falling into a gutter. Due to which, the petitioner was thrown off the motorcycle, fell onto the road, and sustained serious injuries. The claimant approached the tribunal claiming a total compensation of ₹10,50,000/- which was limited to ₹6,00,000/-.

3. The first respondent, the owner of the vehicle, entered appearance and filed a written statement contending that, at the time of the accident, the motorcycle was covered by a valid insurance policy and that the driver was holding a valid driving licence. The 2nd respondent/insurer filed a written statement admitting the validity of the policy, but disputing the quantum of compensation claimed and denying negligence on the part of the insured vehicle. It was contended that the accident occurred due to the negligence of the claimant, who was travelling as a pillion rider. Before the tribunal, PW1 was examined and Exts.A1 to A7 were marked. The tribunal, after analysing the pleadings and materials on record, awarded a sum of ₹4,09,195/- as compensation under different heads with interest @8% per annum from the date of petition till realization with proportionate costs against the 2^nd respondent being the insurer of the offending vehicle. Challenging the liability of the 2nd respondent/insurer to pay the award, the 2nd respondent/insurer has come up in appeal.

4. Heard the learned Standing Counsel for the appellant insurance company and the learned counsel for the claimant.

5. The learned Standing Counsel appearing for the insurance company submitted that the tribunal erred in attributing negligence to the rider of the motorcycle and in fastening liability on the insurance company to indemnify the owner of the motorcycle and pay the award amount. The learned Standing Counsel further argued that the claimant failed to prove negligence on the part of the rider of the motorcycle. It was contended that Ext.A3 final report, relied on by the claimant and produced before the Tribunal, does not disclose any negligence on the part of the rider, who is the 1st respondent, and that he was not charge-sheeted in connection with the accident. The learned Standing Counsel submitted that the negligence was on the part of the claimant herself, as the shawl of the churidar worn by the claimant got entangled in the spokes of the rear wheel of the motorcycle, causing her to fall down and sustain injuries. The learned standing counsel further submitted that Ext.A3 final report, wherein the police had closed the case as accidental, was not challenged by the claimant by filing any protest complaint. Since there was no chargesheet framed against the rider of the motorcycle, the tribunal ought not have found negligence against the first respondent and directed the insurer to pay the award amount. It was further argued that the claimant had given a statement before the investigating officer that the accident occurred while her shawl got entangled on the spokes of the rear wheel of the motorcycle. Ext.A3 final report also does not reveal that there was gutter on the road as stated by the claimant in the claim petition.

Since Ext.A3 was produced by the claimant herself, there was no necessity for the appellant/insurer to