The Court held that although the appellant failed to adduce oral evidence, documentary proof including FIR and final report established negligent driving by the driver. Consequently, the Tribunal's award of compensation was upheld and the appeal dismissed.
The appeal was dismissed and the award of compensation in the lower tribunal was upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.D.RAJAN
THURSDAY ,THE 25TH DAY OF OCTOBER 2018 / 3RD KARTHIKA, 1940
MACA.No. 380 of 2008
AGAINST THE AWARD IN OPMV 943/2002 of M.A.C.T., NEYYATTINKARA DATED 28-06-2007
APPELLANT/1ST RESPONDENT:
THANKA RAJAN.J. VALLAMNINNA PUTHEN VEEDU, 7/234,, THIRUPURAM P.O., NEYYATTINKARA.
BY ADV. SRI.SAJU.S.A
RESPONDENTS/APPLICANTS AND 2ND RESPONDENT:
1 R.SADANANDAN, ANAND HOUSE, PAZHAYAKADA, THIRUPURAM P.O.,, NEYYATTINKARA.
3 RAJAGOPALAN NAIR, RAMLE, NO.330, SWADESABHIMANI NAGAR,, NEYYATTINKARA P.O.
BY ADVS. SMT.NAMITHA JYOTHISH SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.T.PRADEEP SRI.T.P.SAJID SRI.V.VIJULAL
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA.No. 380 of 2008
2
JUDGMENT
This appeal is preferred against the award in OP(MV) No.943/2002 of the Motor Accidents Claims Tribunal, Neyyattinkara by the owner of the one of the vehicle. On 16.05.2002 at 7.45 am, the deceased Anand was travelling as a pillion rider in a motor cycle, when he reached at the place of occurrence the vehicle collided with another vehicle, as a result, he sustained serious injuries. The legal representatives of the deceased preferred the above claim and the learned Tribunal awarded compensation of Rs.2,40,000/- with interest and cost and directed the owners of the vehicle to pay compensation 50% each. Being aggrieved by that, the owner of the motor cycle preferred this appeal.
MACA.No. 380 of 2008
3
injuries, while undergoing treatment he succumbed to the injuries at Medical College Hospital, Thiruvananthapuram. The driver of the motor cycle KL-01-U 2848 filed a written statement and contended that the accident was due to the negligence of the other vehicle. He offered lift to the deceased, while on the way to his office at Neyattinkara and the second respondent had driven KBV-7627 in a rash and negligent manner and thus occurred the accident. The second respondent contended that the accident was due to the rash and negligent driving of the appellant and the Police registered a crime against him. As the owner of the motor cycle, the first respondent is liable to pay compensation. Claimants did not adduce any oral evidence, but their documents were marked as Exts.A1 to A6. RW1 was examined by respondents and Ext.B1 was marked in the lower court.
MACA.No. 380 of 2008
4
deceased and the dependents are the major factors. Secondly the amount that the deceased would have earned during the remaining period of his life, the amount that he would have contributed to the dependents during that period is also relevant. The chances that the deceased may not have lived or the dependents may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better job and earned more income also have to be considered by the tribunal.
5
MACA.No. 380 of 2008
either by an omission of duty or by an omission to do something which a reasonable man is obliged to do. No absolute standard can be fixed and no mathematical formula can be laid down to measure the negligence. When a person is injured without any negligence on his part, but as a result of negligence on the part of the other person or as a result of the combined negligence of two other persons, it is not a case of contributory negligence.
Where an accident is due to negligence of both parties, substantially there would be contributory negligence, and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, have avoided the consequence of other's negligence. Whichever party could have avoided the consequence of other's negligence would be liable for the accident. If a person's negligent act or omission was the proximate and immediate cause of death, the fact that the person suffering injury was himself negligent and also contributed to the accident or other circumstances by which the injury was caused would not afford a defence to the other.
MACA.No. 380 of 2008
6
Contributory negligence is applicable solely to the conduct of a plaintiff. It is now well settled that in the case of contributory negligence, Courts have power to apportion the loss between the parties as seems just and equitable. Apportionment in that context means that damages are reduced to such an extent as the Court thinks just and equitable having regard to the claim shared in the responsibility for the damages. Where a person is injured without any negligence on his part but as a result of combined effect of the negligence of two other persons, it is not a case of contributory negligence in that sense.
Merely because there may have been breach of any traffic regulation, in the absence of concrete, clinching, positive and legally acceptable material to fix sole responsibility for the accident only on such injured/victim, which are conspicuously absent on the facts and circumstances of this case, the liability of the appellant-Corporation remains. The application of the brakes and the incident of collision between the cycle and the bus seem to have been almost simultaneous. The stand of the Corporation that the bus had come to a halt much prior to the incident of the collision is not acceptable and though has been rightly rejected by the Tribunal and the High Court, the infirmity in their orders also lay in rejecting the plea of contributory negligence completely. The Tribunal as well as the High Court ought to have appropriately apportioned the negligence keeping in view the materials placed on records and properly balancing rights of parties.
MACA.No. 380 of 2008
7
of negligence or the rashness would depend upon the facts of each case. The initial burden to discharge the proof of negligence is upon the claimant. Burden of proof in a case has two distinct meanings, namely, (i) as a matter of law and pleadings, and (ii) as a matter of adducing evidence. Section 101 of the Evidence Act it deals with Law and pleading but Sec.102 says about adducing evidence. The first remains constant in a case but the second shifts. In a claim application, under Section 166 of the Motor Vehicles Act, 1988, the burden of proof, in the first sense, certainly lies on the claimant. If the claimant examines himself and his witness, if any, and the evidence is found acceptable, then onus shifts on the tortfeasor to prove those circumstances, which remove the assertions of the claimant. If the tortfeasor fails to prove before the Court any fact or circumstance which tends to affect the evidence led by the claimant, the claimant would be entitled to ask the Court to hold that he has established the case and on that basis to award just compensation. It would, thus, appear that the legal burden, as a matter of law and pleadings remains constant on the claimant, but the burden as a matter of adducing evidence
MACA.No. 380 of 2008
8
changes from claimant to tortfeasor during trial.
Vehicles Act, 1988, the petitioner has to prove the rash and negligent driving of the offending vehicle, but he did not adduce any oral evidence. On the other hand, he produced Ext.A1 copy of the F.I.R in Crime No.271/2002 of the Neyattinkara Police station. Ext.A3 is the final report, in which the appellant was charge sheeted. Ext.A2 post-mortem certificate shows that the death was due to blunt injuries sustained to head and abdomen. Even though no oral evidence is adduced, Ext.A3 shows that the accident was due to the rash and negligent driving of one Santhosh, who is the son of the appellant. The driver of the vehicle was not impleaded as a party in this case. Therefore, the accident was due to the rash and negligent driving of the driver of the vehicle KL-01-U 2848, who is the son of the appellant. RW1 was examined before the Tribunal and he admitted that he was charge sheeted. Therefore, the finding with regard to the rash and negligent driving is properly proved.
MACA.No. 380 of 2008
9
education. The learned Tribunal awarded total Rs.2,40,000/- as compensation. There is no dispute with regard to the amount awarded by the Tribunal. If that be the position, there is no merit in this appeal and it is dismissed accordingly.
Sd/- P.D.RAJAN JUDGE
bng/30.10.18
3 issues framed by the court
Whether the appellant failed to prove rash and negligent driving despite lack of oral evidence due to supporting documentary proof.
Whether the award of compensation by the Tribunal was sustainable.
Whether the appeal against the award was meritorious.
Colour shows how this judgement treated each authority
The Municipal Corporation of Greater Bombay Vs. Shri. Laxman IyerExplained¶32
The Municipal Corporation of Greater Bombay Vs. Shri. Laxman Iyer and Anr. [2004 ACJ 53]
1 provisions across 1 enactments
Thanka Rajan
R. Sadanan
P.D. Rajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
