Insurance companies cannot dispute liability without substantial evidence of contributory negligence from claimants.

JUDGMENT

This appeal is filed by the third respondent/insurer in O.P.

(MV) No.759 of 2013 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha, challenging the liability to pay the award amount as well as the quantum of compensation. The respondents herein are the claimants and respondents 1 and 2 before the tribunal.

2. Brief facts of the case are as follows: On 03.08.2013, at about 04.45 p.m., while the deceased was riding a motorcycle bearing registration No.KL-17/H-4229 through Muvattupuzha – Koothattukulam M.C. road, a Bolero car bearing registration No.KL-35/C-3127 driven by the second respondent in a rash and negligent manner hit against the motorcycle and as a result, the deceased sustained serious injuries and succumbed to the injuries on the way to the hospital. The claimants who are the legal heirs of the deceased, approached the tribunal claiming a total compensation of ₹31,00,000/-.

3. The first and second respondents, the owner and the driver of the offending vehicle respectively, filed a joint written statement, contending that the accident was due to the rash and negligent riding of the motorcycle by the deceased and that the vehicle was validly insured with the third respondent. The third respondent – insurer filed a written statement, disputing the liability and quantum of compensation claimed. They contended that the second respondent was not having a valid and effective driving licence at the time of accident. Before the tribunal, Exts.A1 to A10 and Exts.B1 & B2 were marked. The tribunal, after analysing the pleadings and materials on record, found that the accident occurred due to negligence on the part of the second respondent and the claimants are awarded a sum of ₹26,35,968/-, which is rounded to ₹26,36,000 as compensation under different heads with interest @ 9% per annum from the date of petition till realization with proportionate costs. Challenging the liability to pay the compensation awarded as well as the quantum of compensation, the third respondent - insurance company has come up in appeal.

4. Heard the learned standing counsel for the appellant/insurance company and the learned counsel appearing for the respondents.

5. Firstly, the learned Standing Counsel appearing for the Insurance Company raised an argument that, as per the scene mahazar, the claimant was on the wrong side of the road and, therefore, contributory negligence ought to have been found against the claimant. The learned counsel appearing for the claimants/respondents, however, submitted that the charge sheet was drawn against the second respondent, who was the driver of the car insured with the appellant herein.

6. On a perusal of the award, it is seen that the charge sheet against the second respondent was produced by the claimants herein, and no better evidence was adduced by the insurance company to prove any contributory negligence on the part of the claimants/ respondents. As held by the Apex Court in Jiju Kuruvila and Others v. Kunjujamma Mohan and Others ( 2013 KHC 4486 ), contributory negligence cannot be found merely relying on the scene mahazar. In such circumstances, I am not inclined to accept the contentions now put forward by the insurance company. Accordingly, I find that there is no contributory negligence on the part of the claimant.

7. Another ground raised by the learned standing counsel appearing for the insurer is that, although the driver of the car was holding a valid driving licence, there was no valid badge. A badge is not required, if the gross weight of th