Anil Abraham v. Saji (Proprietor, Race Industries) & Others and New India Assurance Company Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 31[ST] DAY OF AUGUST 2022 / 9TH BHADRA, 1944 MACA NO. 174 OF 2011** **AGAINST THE AWARD DATED 15.10.2010 IN OP(MV).No.267/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANT/PETITIONER:** ANIL ABRAHAM, S/O.ABRAHAM JOSEPH, THEKKUMKATTIL HOUSE, NEEZHOOR, KOTTAYAM. BY ADV SRI.SIJO PATHAPARAMBIL JOSEPH ## **RESPONDENTS/RESPONDENTS:** 1 SAJI, PROPRIETOR, RACE INDUSTRIES, ETTUMANOOR-686631. 2 SHANAVAS KOCHIDAPALLY KALAYIL, ETTUMANOOR -686631. 3 NEW INDIA ASSURANCE COMPANY LTD. KOTTAYAM-686 001. BY ADV RAJI T.BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.08.2022, THE COURT ON 31.08.2022 DELIVERED THE FOLLOWING: M.A.C.A.No.174/2011 2 ## _**A.BADHARUDEEN, J.**_ ================================ _M.A.C.A.No.174 of 2011_ ================================ _Dated this the 31[st] day of August, 2022_ ## _**J U D G M E N T**_ This appeal arises out of award dated 15/10/2010 in O.P(MV).No.267/2007 on the file of Motor Accident Claims Tribunal, Kottayam as opted by the claimant. Respondents 1to 3 herein are the respondents in the above case. 2. Heard the learned counsel for the appellant as well as the learned counsel for the respondents in detail. 3. Short facts: The case put up by the claimant before the Tribunal is that he met with an accident at 2 p.m on 08.08.2006 while he was riding on his motorcycle bearing Reg.No.KL 5/M 8445 from Ettumanoor to Neendoor and he sustained serious injuries, when he was hit down by a van bearing Reg.No.KL5/W- 6376, driven by the 2nd respondent in a rash and negligent manner. Accordingly, he lodged claim petition under Section 166 of the Motor Vehicles Act and pressed for grant of compensation to the M.A.C.A.No.174/2011 3 tune of Rs.1,70,000/-. 4. On notice, the 3rd respondent/insurer appeared and filed written statement, but respondents 1 and 2 remained absent and were set ex-parte by the Tribunal. 5. The main contentions in the written statement of the insurer are as under: The specific contention raised before the Tribunal is that the accident happened due to the negligence on the part of the appellant himself and the vehicle bearing Reg.No.KL5/W-6376 never involved in the accident. While admitting policy to the van, the claim under various heads also was opposed being excessive. 6. The Tribunal recorded evidence confined to Exts.A1 to A9, since no evidence let by the respondents. 7. Thereafter, the Tribunal adjudicated the question of negligence and found against. Thereby the second issue as to entitlement of compensation and quantum was not decided also. While challenging the finding of negligence entered into by the Tribunal, it is submitted by the learned counsel for the appellant M.A.C.A.No.174/2011 4 that the appellant is ready to adduce oral evidence since the Tribunal found negligence in the negative, for which the matter may be remanded back to the Tribunal. 8. The learned counsel for the insurer submitted that the appellant, who alleged to have sustained injuries in an accident with history of `fall from bike' while he was riding on his motor bike, without junction of any other vehicle, subsequently filed a false police complaint at a much belated stage, i.e on 28.09.2006 and on investigation of the said crime, Ext.A2 charge was laid against the 1st respondent. The appellant relied on the police charge to find negligence ignoring the entry in the wound certificate and it was strongly opposed by the insurer. But the tribunal not accepted Ext.A2 to find negligence as contented since Ext.A3 wound certificate showed the reason for the accident as 'fall from bike'. Since the appellant failed to adduce any substantive evidence other than the police charge, the Tribunal rightly rejected the case put up by the appellant. It is argued further that in the initial document prepared in the form of wound certificate, immediately after the M.A.C.A.No.174/2011 5 accident on 8.8.2006 at 2.30 p.m, history and alleged cause of injury is shown as 'fall from bike'. In the subsequent belated complaint, it was alleged that negligence on the part of the Van driver is the reason for the accident on the premise that the van knocked down the appellant. According to the learned counsel for the insurer, Ext.A2 cannot be believed unless specific evidence with regard to the said allegation is proved. Therefore, the said finding requires no interference and the appeal is liable to be dismissed. 9. The learned counsel for the appellant placed a decision of this Court reported in [ILR 2011(3) Ker. 677], _**New India Assurance Company Ltd. v. Pazhaniammal & Ors.** ,_ to contend that wherever a crime has been registered in respect of the accident and the investigation has culminated in the filing of a charge-sheet by the police, such charge-sheet is reckoned as sufficient to establish negligence on the part of the indictee. 10. On reading the said decision, it has been held further that the practice has not received formal judicial approval and M.A.C.A.No.174/2011 6 hence some Tribunals insist on oral evidence in support of negligence invariably. This consumes a lot of judicial time and the heavily over worked Tribunal spends its time on unnecessary oral evidence of negligence. We would certainly not want the Tribunals to be prisoners of the conclusions of police officers. If the Tribunal finds it suspicious, it can insist for better evidence. But as a general rule it can safely be accepted that production of the police charge-sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. 11. He has also placed another decision of this Court reported in [Manu/KE/1514/2009], _**Binish v. K.K.Sudhakaran & Ors.**_ In the said decision, this Court considered a case where the learned Tribunal dismissed a claim petition based on police charge filed at a belated stage on the basis of a private complaint filed and investigation was ordered under Section 156(3) of Cr.P.C. In the said decision, in the wound certificate issued from the Government Hospital, Mulanthuruthy, the history of the cause of accident was recorded as 'he was hit by an autorickshaw at 1.30 pm on M.A.C.A.No.174/2011 7 2.11.2000'. Facts of the case would go to show that in conformity with the said statement, subsequently, though belatedly, a private complaint was lodged and police laid charge against the offender. 12. It is argued by the learned counsel for the appellant based on the ratio in the decision reported in [ILR 2011(3) Ker. 677], _**New India Assurance Company Ltd. v. Pazhaniammal & Ors**_ that if anyone of the parties does not accept police charge, burden must be on such party to adduce oral evidence and if the oral evidence is adduced by any party in a case where charge sheet is filed, the Tribunal should give further opportunity to them to adduce evidence and the issue will have to be decided on the basis of such evidence. Thus the ratio in _**New India Assurance Company Ltd. v. Pazhaniammal & Ors.**_ ( _supra_ ) does not say that charge sheet is the final word to find negligence and charge sheet can be relied on to find negligence only in the absence of other evidence to substantiate the negligence. On perusal of Ext.A3, copy of the wound certificate, the first document where the history and alleged cause of injury was recorded as `fall from the bike' and the M.A.C.A.No.174/2011 8 appellant sustained abrasion and pain tenderness on left knee. Fracture of tibial plateau was diagonised and treated for a period of 10 days from 8.8.2006 to 19.8.2006 at Caritas hospital. Ext.A1 is the copy of private complaint filed by the appellant on 28.09.2006, exactly after 50 days of occrrence and in Ext.A1, it was stated that when the appellant was riding his motorcycle from Ettumanoor to Neendoor and when he reached Onamthuruth and on seeing the tempo van bearing Reg.No. KL5/W-6376 came from the opposite direction, when the appellant moved the motorcycle towards side, the tempo van hit on the side of the left leg of the appellant and the same caused fracture to his left leg. 13. Going by the allegation in the F.I statement and finally culminated in the final report as Ext.A2, the appellant sustained fracture on the left leg though the case put up by the appellant is that the tempo van came in the opposite direction hit against him. Therefore, prima facie there is improbableness in the case as per Ext.A1 and Ext.A2. On evaluating 2 versions of the appellant, as could be gathered from Ext.A1, the copy of the alleged private M.A.C.A.No.174/2011 9 complaint, and Ext.A3, copy of wound certificate, there is no reason to disbelieve the first statement given by the appellant with history of `fall from bike' when a person would allege that he sustained fracture on his left leg when he was hit down by the van came from the opposite direction, the possibility of such an injury is not digestible to prudence. The rationale is that when a person is riding a motorcycle to one direction, normally, the other vehicle coming from the opposite direction will be on his right side. If an accident occurs as a result of hit by the vehicle coming from the opposite side, normally there is likelihood of happening fracture on the right side. In such a case, the substantive oral evidence should have been adduced to prove the negligence. This is the context in which the learned counsel for the appellant sought time to adduce oral evidence and pressed for remand. As per the available evidence to support the plea of negligence on the part of the 2[nd] respondent, the version stated in Ext.A3 would go to show that the appellant sustained injuries when he fell down from the bike. Therefore, Ext.A2 cannot be relied on without support of M.A.C.A.No.174/2011 10 convincing evidence to hold that the accident was the contribution of a negligence on the part of the driver of the tempo van, as alleged. It is at this juncture, the prayer for remand, as canvassed by the learned counsel for the appellant, also to be considered. This is an accident allegedly occurred on 08.08.2006 and now this is 2022. Thus remanding this matter after 16 years of the occurrence for adducing oral evidence, would not serve any purpose. Thus, I am of the view that remand of this case before the Tribunal cannot be justified in this matter where the appellantg miserably failed to prove the accident and negligence as alleged in a convincing manner, by availing the opportunity given by the Tribunal. Therefore, I am inclined to confirm the finding of the Tribunal and accordingly I am not inclined to interfere with the award impugned. Hence the appeal fails and is accordingly dismissed. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_