Dismissed

National Insurance Company Limited v. Shakeela

Kerala HC14 May 2024MACA/1676/2014

Case brief

AI extract

What is this about?

Insurance company appealed a motor accident award for vehicle damage, contending negligence was unproved after dismissal against the driver, documents were not formally proved, and depreciation was ignored. The High Court held MACT proceedings are summary and inquisitorial, police records prima facie prove negligence, unchallenged bills and survey report sufficed, and dismissed the appeal.

What did the court decide?

None granted to appellant; Tribunal award upheld, deposit directed within one month.

National Insurance Company Limited Vs Shakeela — Insurance | Kerala HC (2024)

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"C.R."

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M. TUESDAY, THE 14^TH DAY OF MAY 2024 / 24TH VAISAKHA, 1946 MACA NO.1676 OF 2014

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AGAINST THE AWARD DATED 22.03.2014 IN OP(MV) NO.468 OF 2011 OF II ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KASARAGOD APPELLANT:

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NATIONAL INSURANCE COMPANY LIMITED KANNUR, NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M G ROAD, KOCHI 35. BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW

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RESPONDENT:

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SHAKEELA D/O.AXUBI, 30, 4TH CORSS, GUPTA LAYOUT, BANGALORE, KARNATAKA STATE NOW RESIDING AT MUTTAM P.O., KASARAGOD, PIN 671320.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.05.2024, THE COURT ON 14.05.2024 DELIVERED THE FOLLOWING :

MACA No.1676 of 2014

JUDGMENT

Dated this the 14^th day of May, 2024

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This appeal is filed by the Insurance Company challenging the Award dated 22.03.2014 in O.P. (M.V.) No.468 of 2011 of the II Addl. Motor Accidents Claims Tribunal, Kasaragod (hereinafter referred to as the “Tribunal”). The appellant was the 3^rd respondent and the respondent was the claimant before the Tribunal.

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Facts in brief:

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On 09.04.2009, a Ford Escort car bearing registration No.KA03-Z-1727 owned by the respondent which was parked on the side of the National Highway Near Ganesh Carriage, Kumbla, was hit by an Alto car bearing registration No.KL-60/6202. The appellant was the insurer of the said Alto car. It is alleged that the driver of the Alto car was driving the same in a rash and negligent manner, thus causing it to hit on to the rear side of the Ford Escort Car. Since damage had occasioned to her car, respondent/claimant carried out repairs to the same and filed O.P.(M.V.) seeking to recover an

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amount of Rs.1,07,000/- with interest.

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3. Proceedings before the Tribunal:

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In the O.P.(M.V.), though the driver of the Alto car was arrayed as the 1^st respondent, the respondent herein failed to take due steps for issuance of notice against the driver. Hence the petition as against the driver happened to be dismissed. The owner of the Alto car, who was the 2^nd respondent in the O.P.(M.V.) though was duly served with notice, remained ex-parte. The appellant Insurance Company alone contested the matter and they filed a written statement admitting the policy. Negligence on the part of the driver of the Alto car and the quantum of compensation were contested by the appellant. Based on the pleadings, the Tribunal framed four issues and parties went to trial on the same. No oral evidence was adduced by either side. Exts.A1 to A8 were marked from the side of the respondent/claimant. From the part of the appellant Insurance Company, Ext.B1 policy was marked.

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4. Award of the Tribunal:

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The Tribunal after separate consideration of the issues, found that the accident had occasioned due to the rash and negligent

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driving by the driver of the Alto car and consequently found the appellant, the insurer, liable to pay compensation to the respondent/claimant for the damage occasioned to her car. The Tribunal in its Award held that the respondent is entitled to a total amount of Rs.1,07,447/- with interest at the rate of Rs.7.5% per annum from the date of the petition till its realisation and for proportionate costs. The appellant was directed to deposit the same before the Tribunal within two months of the date of the Award. Aggrieved by the said Award, the appellant Insurance Company preferred the above M.A.C.A.

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Heard Sri.Mathews Jacob, learned Senior Advocate appearing on behalf of the appellant. Though notice was served by affixture on the respondent, there was no appearance. As per Order dated 29.11.2022 in I.A.No.1 of 2022, service of notice to the respondent was declared as complete.

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6. Contentions of the appellant, in brief:

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Since the claim against the 1^st respondent driver had already been dismissed due to the claimant's failure to serve notice upon him, negligence as alleged by the respondent has

MACA No.1676 of 2014

not been proved.

If no negligence is proved against the driver, the question of vicarious liability of the owner and the consequent obligation of the insurer to indemnify, does not arise.

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Exts.A5 to A7 bills relied on by the Tribunal to arrive at the quantum of compensation have not been formally proved and hence said exhibits ought not have been relied on by the Tribunal.

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The Tribunal erred in awarding an amount of Rs.1,07,447/overlooking Ext.A4 survey report which had assessed the damages at a lesser amount of Rs.67,700/-.

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Since the vehicle is of the year 1997 and the accident occurred in 2009, the Tribunal ought to have taken note of depreciation while granting compensation.

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7. Discussion and Reasoning:

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Before proceeding to examine the contentions raised by the learned Senior Counsel, especially the imperativeness of formally proving the documents produced before the Tribunal, I deem it relevant to remind myself of the nature and scope of the

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jurisdiction exercised by a Motor Accident Claims Tribunal while entertaining a petition under Section 166 of the Motor Vehicles Act, 1988.

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The Hon'ble Supreme Court has in Jai Prakash v. National Insurance Co. Ltd. and others [2010 (2) SCC 607] held that the procedure to be followed by the Motor Accident Claims Tribunal under the Act is summary in nature and it need not be conducted like civil suits. The proposition was further reiterated in ICICI Lombard General Insurance Company v. M.D.Davasia @ Jose and another [2019 (4) KHC 157] wherein it was held that Tribunal is not a civil court though it has the trappings of a civil court. More recently, in Sunita and others v.

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Rajasthan State Road Transport Corporation and others [2020 (13) SCC 486], the Hon'ble Supreme Court held that proceedings before the Tribunal is not an adversarial adjudication.

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It is thus trite and settled law that the proceedings before a Tribunal are summary and inquisitorial in nature, wherein the judge is to arrive at the truth rather than the claimants' proving their case with minute precision and exactness. It is no more res

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integra that the jurisdiction exercised by Tribunals under the Motor Vehicles Act, 1988 do not envisage or partake the technicalities of an adversarial adjudication.

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Having thus reminded myself of the scope and nature of the jurisdiction exercised by a Motor Accidents Claims Tribunal, I now proceed to consider the points raised on behalf of the appellant.

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Contention Nos.1 & 2: It is the case of the appellant that negligence on the part of the driver being the very basis of the claim, dismissal of the petition as against the driver for failure of the respondent to take out notice to the driver, snuffs the life out of the O.P.(M.V.). Appellant contends that since no negligence has been proved, the question of vicarious liability of the owner and consequent obligation of the insurer to indemnify, does not arise. The question regarding the proof of negligence has been the subject matter of a catena of decisions. In New India Assurance Co. Ltd. v. Pazhaniammal and others [2011 (3) KHC 595], this Court has held that as a general rule, it can be safely accepted that production of the police charge sheet is prima facie sufficient

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evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. It is trite and settled law as laid down in Pazhaniammal 's case that police charge sheet is prima facie sufficient evidence of negligence on the part of the driver. The same dictum is followed in Kolavan v. Salim [2018 (1) KLT 489] and Samadh M.B. And others v. Binu and others [2020 KHC 444]. In the case at hand, Exts.A1 to A3 relied on by the Tribunal are copies of the FIR in Crime No.94 of 2009 of Kumbla Police Station, the Final Report in the said Crime and the report of the inspection of the motor vehicle involved in the accident respectively. Appellant has not controverted or challenged Exhibits A1 to A3. The said documents are by their very nature, documents which prima facie evidence the negligence on the part of the driver and reliably points towards the incident. No objections have been raised before the Tribunal by the appellant regarding the marking of the same. Though another version for the cause of the accident was put forth by the appellant in their written statement, the same was not supported by any materials and was hence discarded by the Tribunal for lack of substantiation. It is also relevant to note that

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the owner of the Alto car to which the insurance cover was afforded by the appellant, was in the party array. He had chosen not to appear inspite of receipt of notice and was consequently set ex parte . In the light of the above, contention put forth by the appellant that absence of the driver negatives the existence of negligence cannot be sustained.

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Contention No.3: Appellant contends that since the documents produced by the claimant were not formally proved by examining the claimant, the Award of the entire claim based on the said documents, which are unreliable, is unsustainable in law. It is relevant to note that the principal document produced by the respondent and relied on by the Tribunal is the survey report dated 19.05.2009 issued by the Insurance Surveyor (Ext.A4). The said document has not been disowned by the appellant nor has its marking been objected. A survey report prepared by an insurance surveyor and marked in evidence without any objection possesses a prima facie evidentiary value and reliability. The Tribunal cannot be found fault with for having relied on such a survey report prepared by the Insurance Surveyor. As regards Exts.A5 to A7

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relied on by the Tribunal viz., the original cash bill for labour charges and bills for purchase of spare parts, the veracity of the said documents have not been challenged. It is seen from the Award that the Tribunal had earnestly sifted the documents produced and had rightly rejected Ext.A8 produced by the respondent for the reason that the same is only a quotation. It is thus discernible from the Award that the Tribunal had applied its mind and had carefully scrutinized the nature and reliability of the exhibits produced by the respondent, accepting only those that are legally reliable, while discarding the others. In view of the above and also taking note of the summary nature of the proceedings before the Tribunal as settled by the decisions mentioned above, the reliance placed on Exts.A5 to A7 by the Tribunal cannot be termed as erroneous.

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Contention No.4 : As regards the contention of the appellant that the Tribunal erred in awarding an amount of Rs.1,07,447/- overlooking the survey report which had assessed the damages at Rs.67,700/-, it is only axiomatic that once the policy is admitted and the survey report of the Insurance Surveyor is marked, the Tribunal proceeded to accept the original documents

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viz., Exts.A5 to A7 produced by the respondent which stood uncontroverted. The amount mentioned in the survey report had been arrived at by the Insurance Surveyor whose report possess a prima facie reliability. The genuineness and veracity of the said report has not been challenged by the appellant Insurance Company before the Tribunal. The survey report of the Insurance Surveyor thus stands admitted by the appellant and it flows therefrom that the factum of accident and the damage ensuing pursuant to the same are admitted by the appellant. The cash bill for labour charges and the purchase bills for spare parts produced as Exts.A5 to A7 have not been controverted by the Insurance Company by producing any evidence whatsoever. Consequently the amount arrived at by the Tribunal cannot be termed as whimsical or devoid of any basis.

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Contention No.5 : The final point contended by the appellant concerns depreciation. Reliance is placed on dictum laid down in the judgment of this Court in Abraham v. Johny (2009 (4) KLT 679) and it is contended that since the vehicle is of the year 1997 and the accident occurred in 2009, the Tribunal ought to have

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taken note of depreciation while awarding compensation. The written statement dated 10.06.2013 filed by the appellant before the Tribunal does not contain a contention regarding depreciation. The said contention is taken for the first time in the M.A.C.A. The Tribunal has based its Award on the survey report submitted by the Insurance Surveyor which was produced as Ext.A4. Ext.A5 is a bill evidencing the labour charges. This Court has in Abraham v. Johny referred to above, held that no depreciation shall be deducted for labour costs for repair and replacement. Hence no depreciation need be deducted from the amount mentioned in Ext. A5. The Tribunal had included the amounts in Exts.A6 and A7 bills relating to spare parts for the computation of the damages. The learned Judge has in the Award stated that the appellant Insurance Company has not made it clear as to why the said amount for which the respondent had produced bills should not be granted. Further it is noted that the total amount upon adding up the figures in Exts.A4, A5, A6 and A7 is Rs.1,70,148.31/-. The total amount awarded by the Tribunal is only Rs.1,07,447/-. In view of the above, it cannot be said that the element of depreciation has been totally

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lost sight of by the Tribunal. Hence the contention raised relying on the dictum in Abraham v. Johny's case is not sustainable.

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In the light of the above discussion on the respective contentions of the appellant, I find no reason to interfere with the Award dated 22.03.2014 in O.P.(M.V.) No.468 of 2011 of the Motor Accidents Claims Tribunal, Kasaragod. Interim Orders passed in this M.A.C.A. will stand vacated and all I.As. closed. Appellant shall deposit before the Tribunal amounts payable as per the Award, less the amounts already deposited, if any, within one month from the date of this judgment.

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M.A.C.A. is dismissed. No costs.

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Sd/-

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SYAM KUMAR V.M. JUDGE

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csl

National Insurance Company Limited v. Shakeela

Case brief

What is this about?

What did the court decide?

National Insurance Company Limited v. Shakeela

Case brief

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