C.B.RAJESH v. Justin M.G., United India Insurance Co. Ltd., National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 06TH DAY OF AUGUST 2020 / 15TH SRAVANA, 1942** ## **MACA.No.55 OF 2013** **AGAINST THE AWARD IN OPMV 684/2007 DATED 31-07-2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,ERNAKULAM** ## **APPELLANT/PETITIONER:** **C.B.RAJESH, S/O. BABU, AGED 33 YEARS CHERUKATTUKOMCHAMPARAMBIL HOUSE, PULLARDESAMKARA, PALLURUTHY P.O., KOCHI.** **BY ADVS. SRI.K.K.VIJAYAKUMAR SMT.SIJI BALAKRISHNAN SMT.M.V.SREELAKSHMI SRI.RAJESH CHERIAN KARIPPARAMBIL** ## **RESPONDENTS/RESPONDENTS:** **1 JUSTIN M.G., S/O. GEORGE, MADAMBIL HOUSE, ERAMALLOOR P.O., CHERTHALA, ALAPPUZHA-688 537. 2 UNITED INDIA INSURANCE COMPANY LTD. "SARANYA" HOSPITAL ROAD, ERNAKULAM-682 011. 3 NATIONAL INSURANCE COMPANY LTD. COMMERCIAL UNION BUILDING, KARANADU ROAD, WELLINGTON ISLAND, KOCHI-682 003.** **R2 BY ADV. SMT.S.JAYASREE R3 BY ADV. SRI.K.B.RAMANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.55 OF 2013 2** ## **CR** ## **JUDGMENT** The appeal is against the dismissal of a claim petition by the Claims Tribunal based on the finding of sole negligence on the part of petitioner and relied on the final report submitted by the Police in connection with the alleged motor vehicle accident without taking into account the oral evidence tendered by PW1, the report of motor vehicle inspector prepared on the vehicle involved in the accident, the scene mahazar and the other records pertaining to the alleged incident. The Tribunal relied solely on the final report submitted by the Police in connection with the alleged motor vehicle accident and found that the accident took place due to the sole negligence of the petitioner. 2. It is trite that the result of investigation can never be legal evidence. The legal position was well settled by the Apex Court in **Vijender v. State of Delhi [(1997) 6 SCC 171]** as under: **MACA.No.55 OF 2013 3** “The reliance of the trial Judge on the result of investigation to base his finding is again patently wrong. If the observation of the trial Judge in this regard is taken to its logical conclusion it would mean that a finding of guilt can be recorded against an accused without a trial, relying solely upon the police report submitted under Section 173 Cr.P.C. which is the outcome of an investigation. The result of investigation under Chapter XII of the Criminal Procedure Code is a conclusion that an investigating officer draws on the basis of materials collected during investigation and such conclusion can only form the basis of a competent court to take cognizance thereupon under Section 190(1)(b) Cr.P.C. and to proceed with the case for trial, where the materials collected during investigation are to be translated into legal evidence. The trial court is then required to base its conclusion solely on the evidence adduced during the trial, and it cannot rely on the investigation or the result thereof. Since this is an elementary principle of criminal law, we need not dilate on this point any further.” 3. The said legal position was reiterated by the **MACA.No.55 OF 2013 4** Apex Court in **Kaptan Singh v. State of Madhya Pradesh** **[( 1997) 6 SCC 211]** . Does it mean that the entire final report would be out of legal consideration when it was not translated into evidence ? The answer is 'no' simply on the reason that the final report may contain documents and evidence which would otherwise be admissible in evidence apart from the final report submitted under Section 173(2) Cr.P.C. or supplementary report under Section 173(8) Cr.P.C. and the conclusion thereof made by the investigating officer besides the statement recorded under Section 161 Cr.P.C. 4. It is the basic principle that a report under Section 173 (2) or 173 (8) of Cr.P.C. cannot by itself is a substitute for legal proof. But, it may be wrong to eschew the entire final report in the matter of tortious liability, unless translated the same into legal evidence. A final report under Sections 173(2) Cr.P.C. must be in compliance with the requirement under Clauses (a) to (h) thereof, such as name of parties, nature of information, the witness involved, nature of offence committed, ## **MACA.No.55 OF 2013 5** whether the accused was arrested, whether he was forwarded to the Magistrate under Section 170 Cr.P.C. or released on bail, medical examination of victim when investigation relates to offence of rape under Section 176 and 176 A to 176 C of IPC. It must also satisfy the requirement under sub-sections (3) to (7) to Section 173 Cr.P.C., which includes submission of all documents or relevant extract thereof on which the prosecution propose to rely besides the statement recorded under Section 161 Cr.P.C. of the persons whom the prosecution propose to examine as its witnesses. In the matter of supplementary report under Section 173 (8) Cr.P.C. also, the same requirement under sub-sections (3) to (7) has to be complied with by submitting additional document or relevant extract thereof on which the prosecution propose to rely besides any additional statement or new statement recorded under Section 161 Cr.P.C.. In fact, the final report will include the materials and documents collected by the investigating officer besides the statement recorded under Section 161 Cr.P.C. and the conclusions made by him regarding the **MACA.No.55 OF 2013 6** commission of offence. That portion of conclusion and the statement recorded under Section 161 Cr.P.C. unless translated into legal evidence cannot be acted upon, but the legal position would be different regarding the documents and materials which were collected during the course of investigation and annexed to the final report. The materials collected by the Investigating Officer during the course of investigation may sometimes include primary evidence admissible under Section 64 of the Evidence Act or secondary evidence which would fall under Section 65, 65A and 65B of the Evidence Act. A document, which is otherwise admissible in evidence independently by its nature will not lose its character as a legal evidence merely because the same was made part of final report. This makes the difference in the probative value of a final report under Section 173(2) or (8) of Cr.P.C from that of materials collected during the course of investigation. Though the final report as such is not a legal evidence, those materials which were collected during the course of investigation, when found to be admissible **MACA.No.55 OF 2013 7** independently apart from the final report, can be accepted and acted upon. 5. There is no material difference in the legal position regarding the probative value of a final report submitted under Section 173(2) or 173(8) Cr.P.C. between criminal law and civil law. But for the application of “ _res ipsa loquitur_ ” (“the things speak for itself” or “the affair speaks for itself”), the maxim frequently used to determine the question of negligence based on tortious liability including motor vehicle accident, great importance is attached with the evidence collected by the investigating officer (forwarded under sub-section (5) of Section 173 Cr.P.C.), though made as part of final report. In the matter of determination of negligence, it is too dangerous to rely on the conclusion made by the investigating officer in his report under Section 173(2) or 173(8) Cr.P.C. and it cannot be relied on as the basis for an inference regarding negligence or sole negligence attributed. But, for the application of the maxim “ _res ipsa loquitur_ ”, the materials collected by the ## **MACA.No.55 OF 2013 8** investigating officer which would otherwise be admissible in evidence by its independent nature, can safely be accepted. 6. The very basis of a final report and its scope was not properly understood by the Claims Tribunal. It is so unfortunate that the Claims Tribunal entered into a finding that the accident was happened due to the sole negligence of the petitioner solely relying on the final report submitted under Section 173(2) Cr.P.C. and the conclusion arrived at by the investigation officer. Inspection report of the motor vehicles, scene mahazar prepared at the location wherein the accident was happened and other materials collected and the oral evidence of PW1 were not taken into account even for the application of the maxim ' _res ipsa loquitur_ '. It is neither permissible nor advisable to accept the final report, unless translated into legal evidence for the application of the maxim _'res ipsa loquitur'_ or to find out negligence, if any, contributed by any of the parties to the proceedings to fix tortious liability. The direct evidence tendered through PW1 and the ## **MACA.No.55 OF 2013 9** documentary evidence, the respective motor vehicle inspection reports on the vehicles were not even discussed or taken into consideration by the Tribunal. The Tribunal proceeded on the wrong impression that the final report of the police and the conclusion thereof would constitute legal evidence and a substitute for evidence and proof of negligence. The order of the Tribunal is hence set aside. The matter is remanded back to the Tribunal for fresh disposal in accordance with law. The parties shall appear before the Tribunal on 14.09.2020. The Tribunal shall dispose of the matter within a period of six months from the date of appearance of parties. The appeal is allowed accordingly. No costs. ## **Sd/-** ## **P.SOMARAJAN** ## **JUDGE** sv