Abhilash v. Chinnasamy R. & The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **THURSDAY, THE 12TH DAY OF OCTOBER 2017/20TH ASWINA, 1939** **MACA.No. 952 of 2010 ( ) -------------------------** **OPMV 2258/2004 of M.A.C.T., ERNAKULAM** **--------** **APPELLANT(S): ------------** **ABHILASH, S/o.RAGHAVAN,** **RESIDING AT AYYANOTH GARDENS, VATTEKUNNAM, KOONAMTHAI, EDAPPALLY NORTH PO, ERNAKULAM DISTRICT.** **BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH** **RESPONDENT(S):** **--------------** **1. CHINNASAMY.R, S/o.RAMASAMY GOUNDER, 4/165 B, NOCHIPALAYAM, KANUVAKKARAI PO, AVAINASHI, COIMBATORE, TAMIL NADU.** **2. THE NEW INDIA ASSURANCE CO.LTD** **M.G.ROAD, ERNAKULAM.** **R2 BY ADV. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-10-2017, ALONG WITH MACA.1207/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **STK** ## **C.T. RAVIKUMAR** **&** ## **B. SUDHEENDRA KUMAR, JJ.** **-------------------------------M.A.C.A. Nos.952 & 1207 of 2010** **----------------------------------** Dated this the 12[th] day of October, 2017 ## **JUDGMENT** ## **C.T. Ravikumar, J.** The captioned appeals arise from the common judgment and award dated 5.5.2009 passed by the Motor Accidents Tribunal, Ernakulam in O.P.(M.V)No.2258/2004 and O.P.(M.V)No.2282/2004, germane from the very same motor vehicle accident that occurred on 15.08.2002. The former appeal arises from the award in O.P.(M.V) No.2258/2004 and it was filed by the injured, who was the pillion rider on the motorcycle bearing registration No.KL7/AA 287. The later appeal arises from the award in O.P. (M.V)No.2282/2004 filed by the legal heirs of the deceased rider of the said motor vehicle. Both the claim petitions were filed under Section 166 of the Motor Vehicles Act. ## **M.A.C.A. Nos.952 & 1207 of 2010** ## **-: 2 :-** The common case necessary for the disposal of these appeals are as under; 2. On 15.08.2002, at about 9.30 p.m., the injured and the deceased were proceeding in a motorcycle bearing registration No.KL-7/AA 287 through AluvaErnakulam National Highway. At the place of accident the lorry bearing registration No.TN 38/Z-2332 owned by the first respondent, driven by late Palaniswamy and insured with the third respondent, hit against the aforesaid motor cycle. The rider of the motor cycle by name Ravikumar sucumed to the serious injuries sustained in the accident and the appellant in the formal appeal sustained severe injuries. It is in the said circumstances that the above mentioned claim petitions were filed. As per the impugned award, the Tribunal dismissed the claim petitions holding that the appellants/claimants could not adduce satisfactory and trustworthy evidence to prove that the vehicle belonging to the second respondent was ## **M.A.C.A. Nos.952 & 1207 of 2010** ## **-: 3 :-** involved in the accident that led to the filing of the aforesaid claim petitions. It is in the said circumstances that the captioned appeals have been filed, seeking to set aside the impugned common award. 3. We heard the learned counsel appearing for the appellants and also the learned counsel appearing for the common second respondent in these appeals, who is the insurer of the vehicle allegedly involved in the accident. 4. The learned counsel appearing for the appellants submitted that the dismissal of the claim petitions as per the impugned awards is nothing but an outcome of perverse appreciation of evidence by the Tribunal. It is their submission that in order to prove that the aforementioned lorry belonging to the first respondent involved in the accident, Abhilash, the appellant in the former appeal who was the claimant in O.P.(M.V.) No.2258/2004 got himself examined as PW1 besides getting examined one Remesan and R.Sundararaj as PW2 **M.A.C.A. Nos.952 & 1207 of 2010** ## **-: 4 :-** and PW3 respectively. It is also submitted by the learned counsel that the FIR registered in connection with the accident in question at Kochi Traffic Police Station and the charge sheet laid after conducting investigation in the said crime were also produced before the Tribunal and marked as Exts.A1 and A3. It is ignoring the _prima facie_ evidence on negligence revealed from Ext.A3 and disbelieving the uncontroverted version of PW1 to PW3 regarding the accident that the Tribunal dismissed the aforesaid claim petitions. The learned counsel also contended that the Tribunal had committed a palpable illegality by treating 161 statement of PW1 as a piece of evidence to disbelieve the case of the appellants. 5. The learned counsel appearing for the common second respondent, the insurer of the vehicle allegedly involved in the accident, countered the contentions and submitted that the Tribunal cannot be found fault with, in arriving at the conclusion that the claimants had failed to **M.A.C.A. Nos.952 & 1207 of 2010** ## **-: 5 :-** adduce satisfactory and trustworthy evidence to prove the involvement of the aforementioned vehicle in the accident. It is submitted that when the claimant had failed to prove the involvement of the said vehicle in the accident, the inevitable outcome could not have been anything other than dismissal of the Original Applications. In such circumstances, no appellate intervention is called for, it is submitted. 6. We have anxiously considered the rival submissions. Taking note of the assertive submission that the oral evidence of PW1 to PW3 were not properly appreciated by the Tribunal we have carefully gone through the impugned common award. True that there is absolute absence of any discussion of the oral testimony of PW3 though there is discussion of the oral evidence tendered by PW1 and PW2. We have called for the readable copies of the depositions of PW1 to PW3. We will deal with them a little later. ## **M.A.C.A. Nos.952 & 1207 of 2010** ## **-: 6 :-** 7. One relevant aspect is to be noticed in these cases is that before the Tribunal the first respondent who is the owner of the vehicle allegedly involved in the accident remained _ex parte_ . In these proceedings, this Court issued notice to the first respondent. In fact, paper publication was also taken out. However, the first respondent had not chosen to enter appearance and contest the appeals. In the aforesaid circumstances it is relevant to refer to the specific case of the appellants/claimants. As noticed herein before, their case is that on 15.08.2002 at about 9.30 p.m., the lorry bearing registration No.TN 38/Z-2332 owned by the first respondent, driven by late Palaniswamy and insured with the second respondent, hit the motor cycle bearing registration No.KL-7/AA 287, which was being ridden by Ravikumar for whose death O.P.(M.V)No.2282/2004 was filed and the appellant in O.P.(MV)No.2258/2004 was the pillion rider on it. ## **M.A.C.A. Nos.952 & 1207 of 2010** ## **-: 7 :-** 8. It is the case of the appellant in the former appeal that he was the pillion rider of the said motor vehicle and as a result of the said accident, Sri.Ravikumar, its rider sustained serious injuries to which he succumbed and he sustained serious injuries. Needless to say that by remaining _ex parte_ before the Tribunal and also in this proceedings, the first respondent had failed to avail the opportunity to controvert the specific case of the appellants/claimants. He has not chosen to controvert the aforesaid specific case of the petitioners. 9. Another aspect also assumes relevance in this context. Evidently, the second respondent alone had contested the claim petitions before the Tribunal. It is true that in the written statement the second respondent denied the involvement of the lorry bearing No.TN 38/Z2332 in the accident in question and evenwhile denying the involvement of the aforesaid lorry in the accident, the second respondent had admitted the fact that the said ## **M.A.C.A. Nos.952 & 1207 of 2010** ## **-: 8 :-** lorry had valid insurance coverage at the time of the accident. It is also true that they had denied the allegation that the aforesaid Palaniswamy was driving the alleged offending vehicle involved in the accident at the time of the accident. Alternatively, they had also contended that the accident had occurred due to the careless riding of the motor vehicle by the victim in O.P. (M.V)No.2282/2004. It is to be noted that the second respondent had not adduced any evidence, either oral or documentary before the Tribunal. As noticed hereinbefore, the first respondent who is the owner of the lorry remained ex parte and hence, it has to be taken that the specific case of the appellants/ claimants that at the time of the accident, the lorry in question was being driven by the late Palaniswamy had not been disputed by the owner of the vehicle, viz., the first respondent. In fact, he was the best person to deny the said aspect. 10. A scanning of the impugned judgment would **M.A.C.A. Nos.952 & 1207 of 2010** ## **-: 9 :-** reveal that the Tribunal had considered the evidence of PW1 and PW2 and at the same time, conspicuously, there is no whisper about the evidence of PW3. As stated earlier, the injured claimant in O.P.(M.V)No.2258/2004 was examined before the Tribunal as PW1 in the joint enquiry of the claim petitions. The discussion of the evidence of PW1 would reveal that he had categorically deposed before the Tribunal regarding the involvement of the lorry bearing No.TN 38/Z-2332 in the accident. He had also specifically deposed that the said lorry hit on the motor cycle, being driven by Ravikumar for whose death O.P.(M.V)No.2282/2004 was filed and he was the pillion rider on the said motorcycle, at the relevant point of time. He had further deposed that the said Ravikumar died due to the injuries sustained in the said accident and he too sustained serious injuries in the said accident. There can be little doubt with respect to the position that in a case of this nature, unless the evidence of the injured claimant ## **M.A.C.A. Nos.952 & 1207 of 2010** ## **-: 10 :-** is shattered by the respondents by effective cross examination, there is absolutely no reason to disbelieve his oral evidence. It is evident that the second respondent on whose behalf he was cross-examined could not elicit anything to discredit his version. The Tribunal may be justified in not accepting and acting upon the evidence of PW2. He allegedly witnessed the accident in question and according to him, immediately after the accident he noted down the number of the vehicle on his palm and on reaching home he jotted down the same in his diary. There is no case for him that on his own, at any point of time he went to the police Station to set the law in motion though his statement was recorded under Section 161 of the Cr.P.C, later. On going through the evidence of PW2 and taking into account of such circumstances, we do not find any reason to hold that his evidence was not properly appreciated by the Tribunal. PW3 is the Investigating Officer in the crime registered in ## **M.A.C.A. Nos.952 & 1207 of 2010** ## **-: 11 :-** connection with the accident. While being examined as PW3, he had deposed that in connection with the accident in question, a crime was registered. It is also submitted by him that an investigation was conducted and thereafter Ext.A4 charge sheet was laid. He would also admit the fact that Ext.A4 is an abated charge sheet. Evidently, on investigation it was found that the said vehicle was being driven at the relevant point of time by one Palaniswamy and he died subsequently. 11. Thus it is evident that the evidence of PW3 would lend support to the evidence of PW1 regarding the involvement of the aforesaid lorry in the accident and also on the point that it was then driven by Palaniswamy. The evidence of PW3 was not actually discussed by the Tribunal in the impugned award. On going through the evidence of PW3, we are of the considered view that during his cross-examination nothing was elicited to discredit his version. In the said circumstances, another ## **M.A.C.A. Nos.952 & 1207 of 2010** ## **-: 12 :-** aspect also assumes relevance. In the decision of a Division Bench in **New India Assurance Co. Ltd. v. Pazhaniammal [2011 (3) KLT 648]** it was held that production of a police charge sheet is a _prima facie_ sufficient evidence of negligence against the indictee in a claim petition filed for compensation under Section 166 of the Motor Vehicles Act. Needless to say that in such circumstances, it was open to the respondents to adduce rebuttal evidence. Nonetheless, the respondents had not adduced any evidence, either oral or documentary. 12. We have already noticed that the first respondent, the owner of the aforesaid lorry had remained _ex parte_ . The insurer of the said vehicle though disputed the involvement of the vehicle, did not adduce any evidence, either oral or documentary. In such circumstances, in the light of the decision in Pazhaniammal's case and in the absence of any rebuttal evidence from the respondents, the Tribunal was not ## **M.A.C.A. Nos.952 & 1207 of 2010** ## **-: 13 :-** justified in arriving at a conclusion against the involvement of the vehicle in question in the accident. In other words, in the light of the evidence of PW1 to PW3 with Ext.A1 and A5, the Tribunal ought not have arrived at a conclusion that the aforementioned vehicle had not involved in the accident and the death of Ravikumar and the person injured in the accident had not caused by the involvement of the said vehicle. 13. On going through the impugned judgment, it is evident that virtually for discrediting the version of the appellants, the Tribunal had relied on the statement of PW1 recorded under Section 161 Cr.P.C. There can be little doubt with regard to the position that a statement recorded under Section 161 Cr.P.C. cannot be used as a substantive piece of evidence. It can only be used for the purpose of contradiction and not for corroboration. Even if a contradiction is brought out unless it is material and would destroy the very case of the prosecution, the **M.A.C.A. Nos.952 & 1207 of 2010** ## **-: 14 :-** evidence of such a witness could not be held as wholly untrustworthy on that sole reason. A statement recorded under Section 161 Cr.P.C. can be used primarily only for the limited purpose of contradicting the witness concerned, is a settled position (see the decision of the Apex Court in **Uday Chakraborthy & Ors. v. State of West Bengal [AIR 2010 (SC) 3506]** ). In such circumstances, we have no hesitation to hold that the Tribunal had clearly gone wrong in relying on the previous statement of PW1 recorded under Section 161 Cr.P.C. as a substantial piece of evidence to discredit the case of the appellants and that too, by ignoring the substantive evidence tendered through PW1 and PW3 and further ignoring the relevance of Ext.A4 charge sheet in the light of the decision in Pazhaniyammal's case (supra). 14. In the light of the evidence, as discussed above, we have no hesitation to conclude that the appellants/claimants have successfully established the **M.A.C.A. Nos.952 & 1207 of 2010** ## **-: 15 :-** fact that the lorry bearing No.TN38/Z-2332 was involved in the accident in question that occurred on 15.08.2002 at about 9.30 p.m. and Ravikumar for whose death O.P.(M.V) No.2282/2004 was filed, had sustained injuries and succumbed to them. Ext.A12 is the postmortem certificate. It would reveal the antimortem injuries sustained by him in the accident. The fact that the claimant in O.P.(M.V)No.2258/2004 had sustained injuries and was hospitalized is evident from Ext.A6 wound certificate issued from Medical Trust Hospital. In such circumstances, the appellants/claimants in the aforementioned claim petitions are entitled to compensation. In other words, in the aforesaid claim petition, the claimants ought to have been granted just compensation. In such circumstances, the findings of the Tribunal to the contrary, holding them as disentitled to compensation, is set aside. Consequently, we hold that the claimant in O.P.(M.V)No.2258/2004 has succeeded in **M.A.C.A. Nos.952 & 1207 of 2010** ## **-: 16 :-** proving that he sustained injuries in the motor vehicle accident involving the lorry bearing No.TN 38/Z-2332 occurred on 15.08.2002. So also, we hold that the claimants in O.P.(M.V)No.2282/2004 have succeeded in proving that the accidental death of Ravikumar had occurred due to the accident involving in the said vehicle. 15. The impugned common award was passed by the Tribunal dismissing the claim petitions based on the finding vacated by us. Evidently, the Tribunal had not adjudicated the just compensation payable, to the claimants. Therefore, for the purpose of adjudicating the quantum of compensation, the matters are remanded to the Motor Accidents Claims Tribunal, Ernakulam. All the parties shall be afforded with opportunity to adduce evidence. Taking into account the fact that the claim petitions are of the year 2004, it is only just and proper to consider them, afresh as expeditiously as possible and at **M.A.C.A. Nos.952 & 1207 of 2010** **-: 17 :-** any rate, within a period of six months from the date of receipt/production of this judgment. No order as to costs. Transmit the records forthwith. sd/- **C.T. RAVIKUMAR, JUDGE** sd/- **B. SUDHEENDRA KUMAR, JUDGE** **//TRUE COPY//** **P.A. TO JUDGE** **STK**