Aji, S/o Thankappan v. George Paul and The Oriental Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR FRIDAY, THE 1ST DAY OF DECEMBER 2017/10TH AGRAHAYANA, 1939 MACA.No. 1354 of 2006 ( ) -------------------------AGAINST THE AWARD IN O.P(M.V)No.246/2002 of M.A.C.T, MUVATTUPUZHA DATED 03-02-2006 APPELLANT/PETITIONER: --------------------------- AJI, S/O. THANKAPPAN, RESIDING AT KAPPILAKUDIYIL HOUSE, PIRAKKUNNAM KARA, UPPUKULAM BHAGAM, KUTTAMANGALAM VILLAGE. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENTS/RESPONDENTS: ---------------------------------- 1. GEORGE PAUL, PADICKADAN HOUSE, NELLIMATTOM P.O., NELLIMATTOM. 2. THE ORIENTAL INSURANCE COMPANY LTD., ELENGICAL PLAZA, CHURCH VIEW JUNCTION, KOTHAMANGALAM. R2 BY ADV. SRI.A.R.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & B.SUDHEENDRA KUMAR, JJ.** ------------------------------------ M.A.C.A.No.1354 of 2006 -----------------------------------Dated 1[st] December, 2017 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is directed against the judgment and award dated 3.2.2006 in O.P.(M.V)No.246 of 2002 passed by the Motor Accidents Claims Tribunal, Muvattupuzha. As per the impugned award, the claim petition filed by the appellant herein was dismissed. 2. We have heard the learned counsel for the appellant and also the learned counsel appearing for the second respondent. Notice was issued to the first respondent. However, he has not chosen to enter appearance and contest the matter. 3. The accident in which the appellant sustained injuries and that led to the filing of the aforesaid claim petition occurred on 2.12.2001 at about 4 p.m. On that day, he was riding his motorcycle bearing Reg.No.KL-7D/7051 along Kavalangadu-Uppukulam road. At the place of the accident it was hit by a Scooter bearing Reg.No.KL-7E/6036, driven by the first respondent. The appellant sustained injuries and he was taken to M.B.M.M. Hospital, Kothamangalam. He remained there as an inpatient for a period of 10 M.A.C.A.No.1354 of 2006 2 days. It is in the said circumstances that he filed the said claim petition seeking compensation of 1,30,000/-. A perusal of the impugned₹ award would reveal that the Tribunal had come to the conclusion that the appellant sustained injuries in the motor vehicle accident in question. This is evident from the discussion in paragraph 9 of the impugned judgment and the relevant recital therein reads thus:- “.......The petitioner has suppressed a material piece of evidence. It casts doubt regarding the genuineness of the plea put forth by the petitioner as regards the manner in which the accident has occurred.” It would reveal that the doubt is only regarding the manner in which the accident had occurred. A scanning of the impugned judgment would reveal that before the Tribunal, on the side of the appellant one Unnikrishnan, his employer was examined as PW1 and Exts.A1 to A10 were got marked. On the side of the respondents Ext.B1 which is the policy of the Scooter involved in the accident was got marked. However, no oral evidence was adduced on the side of the respondents. In fact, the first respondent had remained ex parte before the Tribunal. Despite the non-appearance of the first respondent and the absence of evidence from the side of the second respondent the Tribunal cast doubt regarding the genuineness of his plea regarding the manner in which the accident had occurred and evidently, it led to the dismissal of M.A.C.A.No.1354 of 2006 3 the claim petition. 4. It is relevant to note in the context of the contention that the appellant had produced Ext.A4 before the Tribunal. Obviously, in connection with the accident in question Crime No.177 of 2001 was registered at Oonnukal Police Station. Ext.A1 is the F.I.R. After conducting investigation in the said crime Ext.A4 final report laid by the police. Evidently, charge was filed against the first respondent alleging commission of an offence under Section 279 of the Indian Penal Code. It is also an undisputed fact that on the allegation that the appellant as also the first respondent were not then having licence to drive the respective vehicles petty cases viz., Crime Nos.608 of 2001 and 609 of 2001 respectively, were registered against them. Though the appellant had produced Ext.A4 final report laid in Crime No.177 of 2001 of Oonnukal Police Station, registered in connection with the accident in question, the Tribunal had declined to accept the same and act upon it. A scrutiny of the impugned judgment would reveal the same. The Tribunal held that the police officer who conducted the investigation was not examined and therefore Ext.A4 was not proved. Furthermore, it was held that the appellant ought to have produced copy of the report of inspection of vehicle bearing Reg.No.KL-7E/6036 viz., the alleged offending vehicle. It is also relevant to note that evidently, the Tribunal M.A.C.A.No.1354 of 2006 4 took note of the fact that in Ext.A6, which is the accident register-cumwound certificate issued from M.B.M.M. Hospital, Kothamangalam, the history of the case was recorded as road traffic accident involving collision between two bikes. Virtually, it is this version that gained credence with the production of Ext.A4 final report. The Tribunal also took note of the injuries therein viz., abrasion over nose, palatal injury present, bleeding from nose and mouth. Column No.13 in Ext.A6 would reveal that CT scan revealed fracture of zygoma as well. Ext.A7 discharge summary was also looked into by the Tribunal, as is evident from the impugned judgment and award. It would reveal that the appellant herein was treated as an inpatient from 2.12.2001 to 12.12.2001 and the wounds were sutured under local anesthesia. Ext.A8 series are the bills relating the treatment. After considering those things, the Tribunal held that the evidence let in by the appellant would show that he had sustained injuries in the accident. At the same time, it was held that the accident had occurred due to the negligence of the first respondent. Based on such conclusion, the Tribunal also held that the respondents are not liable to pay compensation claimed by the appellant. 5. In the circumstances thus obtained from the impugned judgment, as noticed hereinbefore, it is evident that the Tribunal had M.A.C.A.No.1354 of 2006 5 virtually failed to bestow serious consideration of the evidence on record in the light of the relevant provisions of law as also position of law. It is evident that to establish the allegation that the accident had occurred due to the negligence of the first respondent, the rider of the scooter, the appellant had produced Ext.A4 which is the final report laid in the crime registered in connection with the accident in question. Evidently, after conducting an investigation police have charge sheeted the first respondent who was the rider of the scooter involved in the accident at the time of the accident. In the light of the decision of a Division Bench of this Court in **New India Assurance Co. Ltd.** v. **Pazhaniammal (2011 (3) KLT 648)** production of police charge sheet has to be accepted as a _prima facie_ sufficient evidence of negligence in a claim petition filed seeking compensation under Section 166 of the Motor Vehicles Act. Thus, going by the said decision, Ext.A4 is the _prima facie_ sufficient evidence of negligence against the indictee therein viz., the first respondent. Further, it was held therein that if any of the parties to the clam petition did not accept the report, it would be open to him to adduce evidence. In the absence of any such rebuttal evidence, the report filed in terms of Section 173(2) of the Code of Criminal Procedure should be taken as a _prima facie_ sufficient evidence on the question of negligence. This view was subsequently M.A.C.A.No.1354 of 2006 6 reinstated by this Court in **National Insurance Company** v. **Nirmala Balachandran (2012 (3) KLJ 214)** . True that, those decisions were rendered subsequent to the pronouncement of the judgment and award in the claim petition. But, at the same time, we are of the view that in the light of the said decisions, the finding of the Tribunal that the appellant had failed to prove that the accident had occurred due to the negligence of the first respondent cannot be sustained and it is liable to be reversed. Shortly stated when evidence on record would reveal that the appellant had sustained injuries in a motor vehicle accident and when that fact is remaining indisputable and undisputed the entitlement of the said person to get compensated cannot be negatived unless there are compelling sustainable reasons therefor. In other words, being a welfare legislation, it is the duty of the Tribunal to grant just compensation for the injuries sustained by such persons. True that, in a claim petition filed under Section 166 of the Motor Vehicles Act it is for the claimant to establish that the accident had occurred due to the negligence either on the part of the driver of the vehicle concerned or its owner. In this case, in the light of the dictum laid down by this Court in **Pazhaniammal's** case and **Nirmala's** case (supra) it can only be held that the appellant had succeeded in adducing prima facie sufficient evidence to the effect that the accident had occurred due to M.A.C.A.No.1354 of 2006 7 the negligence of the first respondent, by producing Ext.A4. But, at the same time, we are of the view that since the said decisions were rendered only subsequent to the pronouncement of the impugned judgment it would be unfair to conclude the question of negligence merely by following the dictum laid down in those decisions without affording opportunities to the respondents to adduce rebuttal evidence and subject to such production, the claimant to adduce further evidence, if any. The learned counsel appearing for the second respondent would also submit that the second respondent may be granted liberty to raise all legally permissible contentions to seek for exoneration from the liability to indemnify the first respondent, the insured owner of the Scooter involved in the accident for the reason that he was not then having a valid driving licence. The learned counsel appearing for the appellant countered it contending that the fact that the said driver was not having a valid driving licence cannot be a reason at all for denying compensation to the insured. At best, it could be a reason for ordering pay and recovery, it is submitted. 6. In view of the circumstances obtained in this case, we are of the view that it is only apropos to refer to certain provisions under the Code of Civil Procedure adherence of which would have averted a situation requiring a remand of the case. Order 14 Rule 2(1) mandates M.A.C.A.No.1354 of 2006 8 a court to pronounce judgment on all issues. The only exception carved out is with respect to cases fall under sub rule (2) to Rule 2 of Order 14, CPC. The factual situation obtained in this case would undoubtedly reveal that the case could not have been disposed of in terms of the provisions under sub rule (2) of Rule 2, Order 14, CPC. The question relating negligence could not have been resolved without ascertaining facts after recording evidence and therefore, in the light of the provisions under Order 14, Rule 2(1), CPC the Tribunal ought to have pronounced judgment on all issues. The Tribunal, even after finding that the appellant had sustained injuries in a motor vehicle accident and after taking note of the nature of injuries sustained by him, had not adjudicated the compensation payable, that too, even after framing an issue in that regard. In fact, based on the rival pleadings the Tribunal had formulated the following issues for consideration, as can be seen from paragraph 5 of the impugned judgment:- “(1) Who is responsible for the incident ? - (2) What, if any, is the quantum of compensation the petitioner is entitled to get ? (3) Who is liable to pay compensation ? (4) Reliefs and costs “ 7. It is to be noted that after framing such issues and permitting the parties to let in evidence, in other words, after conducting an enquiry as provided under the statute, the Tribunal had M.A.C.A.No.1354 of 2006 9 failed to pronounce judgment on all issues. In the contextual situation, it is also relevant to refer to Order 41, Rule 23A, CPC and the same reads thus:- “Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.” Rule 23 reads thus:- “ **23.Remand of case by Appellate Court** .- Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, or where the Appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case, the Appellate Court may by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial, shall, subject to all just exceptions be evidence during the trial after remand.” As a matter of fact, Order 41, Rule 24, CPC is also worthy for reference and it reads thus:- “ **24. Where evidence on record sufficient,** - **Appellate Court may determine case finally.** Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if M.A.C.A.No.1354 of 2006 10 necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.” In view of the provisions referred to hereinbefore and the aforesaid discussions we do not think that the evidence on record is sufficient to enable this Court to pronounce judgment finally determining the case. 8. In the light of the discussion as above, the impugned judgment is liable to be reversed. We are of the considered view that based on the evidence on record, the Tribunal could not have arrived at a proper finding as to the question of negligence. As noticed hereinbefore, going by the decision in **Pazhaniammal's** case (supra) if the appellant had succeeded in establishing _prima facie_ case of negligence by producing the police charge sheet on the opinion of the Tribunal, the indictee therein, who is a party to the claim petition, should be afforded with an opportunity to adduce rebuttal evidence. If he adduces rebuttal evidence, necessarily, the claimant should be granted further opportunity to adduce further evidence. It is also to be noted that going by the dictum therein if the Tribunal is not inclined to accept the police charge sheet as a prima facie evidence and to act upon it even in the absence of rebuttal evidence, it is under an obligation to afford an opportunity to the appellant such further M.A.C.A.No.1354 of 2006 11 evidence including oral evidence, if any, to establish his case. That apart, it is evident from the discussion of the evidence on record that it is a case where both the injured-appellant who was motorcyclist as also the first respondent who was the scooterist, were not having driving licences to drive the class of vehicles to which they belong. It is in the said circumstances that the learned counsel appearing for the second respondent insurer prayed for an opportunity to raise contentions to get exonerated from the liability or to get the right to recover the amount payable to satisfy the decree, if an award granting compensation is to be passed. Taking into account all such circumstances, we are of the considered view that this is an eminently fit case to order remand of the case and to order re-trial after reversing the judgment and award. Consequently, the impugned judgment and award of dismissal of the claim petition is set aside. The matter is remanded to the Tribunal for conducting a re-trial and to pass appropriate award in accordance with law. Needless to say that all the parties shall be afforded with opportunities to adduce evidence in accordance with law. Since the claim petition is of the year 2002 an expeditious disposal of the claim petition is required and therefore, the parties are directed to appear before the Tribunal on 25.1.2018 for the purpose of receiving directions of the Tribunal as to further proceedings thereon. In such M.A.C.A.No.1354 of 2006 12 circumstances, the Tribunal shall dispose of the claim petition as expeditiously as possible, at any rate, within a period of six months from the date of appearance of the parties. This appeal is disposed of accordingly. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **B.SUDHEENDRA KUMAR Judge** TKS