ZEENATH SALAM Vs. NAJEEB

JUDGEMENT

(1.) In a claim under Sec. 163A of the Motor Vehicles Act, whether the absence of the owner and the insurer of the offending vehicle is fatal is the important question raised in this appeal.

(2.) The essential facts :- Autorickshaw bearing No.KL 07 AC 2202 (hereinafter referred to as 'auto A', for short), in which the petitioner/injured was travelling collided with another autorickshaw bearing No.KL 7Z 1162 (hereinafter referred to as 'auto B', for short), with the result, the petitioner sustained serious injuries. The Tribunal, in the impugned order, found on the strength of Ext.B4 final report, that the accident occurred on account of the negligence of the driver of auto B, the offending vehicle and in the absence of the owner and the insurer of that vehicle in the party array, liability cannot be mulcted on the owner and insurer of auto A, in which the injured was travelling. As per the judgment of this Court in New India Assurance Co. Ltd. v. Pazhaniammal [2011 (3) KLT 648], the findings recorded in the charge sheet can be taken as prima facie evidence of negligence as against the accused therein.

(3.) In view of the importance of the legal question involved, Sri.Mathew John was appointed as the Amicus Curiae, who invited the attention of this Court through a three Judges Bench decision of the Hon'ble Supreme Court in United India Insurance Co.Ltd v. Sunil Kumar and another [2017(4) KLT 1093 (SC)]. In the context of interpretation of the expression 'arising out of', learned Amicus Curaie relied upon a Bench decision of this Court in Babu v. Rameshan [1995 (2) KLT 300].