Chandran Pillai.R. v. Rajeev and Oriental Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 07TH DAY OF JANUARY 2020 / 17TH POUSHA, 1941** ## **MACA.No.794 OF 2008** **AGAINST THE AWARD DATED 14.12.2007 IN OP(MV)NO.1042/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM** ## **APPELLANT/PETITIONER :** **CHANDRAN PILLAI.R., KILASAM, MUZHANGODI, THODIYO,, KARUNAGAPPALLY.** **BY ADV. SRI.K.G.PAVITHRAN** ## **RESPONDENTS/RESPONDENTS:** - **1 RAJEEV,S/O.RAJEENDRAN KOMALATH VEEDU, ADINADU SOUTH, KATTILKADAVU P.O., KARUNAGAPPALLY.** - **2 THE BRANCH MANAGER ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, KOLLAM.** **R2 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** - **R2 BY SMT K.S.SANTHI-RESPONDENT** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.794 of 2008 2 ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1042 of 2002 on the file of the Motor Accidents Claims Tribunal, Kollam, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, alleged to have occurred on 26.03.2002, while he was travelling as a pillion rider on a motorcycle bearing registration No.KL-2/M-5203. Going by the averments in the claim petition, at the place of accident, the said motorcycle was hit by another motorcycle bearing registration No.KL-2/H-4968, owned and ridden by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, he sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle bearing registration No.KL-2/H-4968 by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/- under various heads. 2. Before the Tribunal, the 1[st] respondent ownercum-rider of the motorcycle bearing registration No.KL02/H-4968 did not appear. MACA No.794 of 2008 3 3. The 2[nd] respondent insurer filed written statement admitting the insurance coverage of motorcycle bearing registration No.KL-2/H-4968; however, denying the occurrence as well as the involvement of the said vehicle in the alleged accident. The insurer pointed out that, as per the private complaint filed by the brother of the claimant, the vehicle involved in the accident was one bearing registration No.KL-2/A-1424. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A12 were marked and PWs.1 and 2 were examined, on the side of the claimant. On the side of the respondents, the registration particulars of motorcycle bearing registration No.KL-2/K1424 was marked as Ext.R1. The document marked as Ext.X1 is the case diary in the criminal case. 5. After considering the pleadings and materials on record, the Tribunal dismissed the claim petition on the ground that the 1[st] respondent owner of the motorcycle some how succeeded in planting motorcycle bearing registration No.KL-02/H-4968 (in the place of motorcycle bearing registration No.KL-02/K-1424) which was having MACA No.794 of 2008 **==> picture [7 x 8] intentionally omitted <==** insurance coverage, in order to fix the liability on the 2[nd] respondent insurer. Since the claimant set up a false case, it is not possible to fasten negligence as against the 1[st] respondent. The Tribunal held that, there is no evidence to prove that motorcycle bearing registration No.KL-02/K1424 or that bearing registration No.KL-02/H-4968 was involved in the accident. The accident was also not proved. In the absence of proof, the Tribunal dismissed the claim petition. 6. Feeling aggrieved by the judgment of the Tribunal in dismissing the claim petition, the appellant/ claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 2[nd] respondent insurer. Despite service of notice, none appears for the 1[st] respondent. 8. By the impugned judgment, the Tribunal dismissed the claim petition on the ground that the appellant failed to prove the accident and also the involvement of the motorcycle bearing registration No.KL2/K-1424 or that of motorcycle bearing registration No.KL- MACA No.794 of 2008 5 ## 2/H-4968 in the accident. 9. The document marked as Ext.A4 is the final report in Crime No.287/02 of Karunagappally Police Station, registered in connection with the motor accident alleged to have occurred on 14.05.2002, in which the 1[st] respondent is charge sheeted for an offence punishable under Section 279, 337 and 338 of Indian Penal Code, 1860 read with Section 134(b) of the Motor Vehicles Act, 1988. In Ext.A4 charge sheet, the registration number of the offending motorcycle is shown as KL-02/H-4968. Crime was registered by Karunagappally Police based on a private complaint filed by one Madhusoodanan Pillai (brother of the appellant) before the Judicial First Class Magistrate Court, Karunagappally, on 14.05.2002. As evident from Ext.A1 FIR, in the complaint filed by Madhusoodanan Pillai, the registration number of the offending motorcycle was shown as KL-02/K-1424, which is also owned by the 1[st] respondent. The document marked as Ext.A3 is the mahazer of motorcycle bearing registration No.KL-02/H4968, in which the damages caused to its headlight, crash guard, etc., are noted. MACA No.794 of 2008 6 10. Before the Tribunal, the appellant was examined as PW1 and one Satheesan, who alleged to have witnessed the accident which occurred on 26.03.2002, was examined as PW2. The Tribunal without adverting to the oral testimonies of Pws.1 and 2 and also the materials placed on record dismissed the claim petition with an observation that, most probably, motorcycle bearing registration No.KL02/K-1424 was not having a valid insurance coverage, as on the date of accident, and hence the 1[st] respondent owner some how succeeded in planting another motorcycle owned by him, bearing registration No.KL-02/H-4968, which was having insurance coverage with the 2[nd] respondent insurer, in order to fix the liability on the insurer. 11. In **New India Assurance Company Ltd. v. Pazhaniammal and others [2011 (3) KHC 595]** a Division Bench of this Court held that, 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. If any one of the parties do not accept such MACA No.794 of 2008 7 charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunal should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act. Wherever, on the facts of a given case, the Tribunal feels that the police charge sheet does not satisfy its judicial conscience, the Tribunal can record that the charge sheet cannot be accepted and can call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged negligence. In such a case, the issue of negligence must be decided on the other evidence, ignoring the charge sheet. Paragraphs 7 and 8 of the said decision read thus; “7. In this context we feel it appropriate to refer to the practice adopted by many Tribunals in the State. Wherever a crime has been registered in respect of MACA No.794 of 2008 8 the accident and the investigation has culminated in the filing of a charge sheet by the police, such charge sheet is filed and the same is reckoned as sufficient to establish negligence on the part of the indictee. The practice has not received formal judicial approval and 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. A system cannot feed itself on a regular diet of distrust of the police. Prima facie, charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunals should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other MACA No.794 of 2008 9 cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act. We mean to say that on production of such charge sheet the shifting of burden must take place. It is not as though we are not conscious of the dangers and pit falls involved in such an approach. But we feel that adoption and recognition of such practice would help to reduce the length of the long queue for justice before the Tribunals. The judicial recognition of the practice will help the Tribunals to ensure the optimum use of judicial time at their disposal for productive ventures. 8. We do not intend to say that collusive charge sheets need be accepted. Wherever on the facts of a given case the Tribunals feel that the police charge sheet does not satisfy their judicial conscience, the Tribunals can record that the charge sheet cannot be accepted and can call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged negligence. In such a case, the issue of negligence must be decided on the other evidence, ignoring the charge sheet.” 12. In view of the law laid down in **Pazhaniammal** , the production of Ext.A4 charge sheet filed in Crime No.287/02 of Karunagappally Police Station, registered in connection with the motor accident in question, in which the 1[st] respondent rider of the offending motorcycle was MACA No.794 of 2008 10 charge sheeted for an offence punishable under Section 279, 337 and 338 of Indian Penal Code, 1860 read with Section 134(b) of the Motor Vehicles Act, 1988, is prima facie sufficient evidence of negligence on his part, for the purpose of a claim under Section 166 of the Motor Vehicles Act. In case the 2[nd] respondent insurer do not accept Ext.A4 charge sheet, the burden must be on the insurer to adduce oral evidence. In view of the oral testimony of PWs 1 and 2 on the side of the claimant, the Tribunal should have given a further opportunity to the 2[nd] respondent insurer to adduce oral evidence. In the absence of any evidence to the contra, Ext.A4 charge sheet can be reckoned as sufficient evidence of negligence. In case the Tribunal feels that the charge sheet does not satisfy its judicial consensus, it can record that the charge sheet cannot be accepted and call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged negligence and then decide the issue of negligence on those evidence, ignoring the charge sheet. 13. In **N.K.V. Bros. (P) Ltd. v. Karumai Ammal** MACA No.794 of 2008 11 **[(1980) (3) SCC 457]** the Apex Court held that Motor Accidents Claims Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The Tribunals should not succumb to niceties, technicalities and mystic maybes. 14. In **Kusum Lata v. Satbir [(2011) 3 SCC 646]** the Apex Court held that, in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. 15. In **Parameshwari v. Amir Chand [(2011) 11 SCC 635]** the Apex Court reiterated that, in a road accident claim, the strict principles of proof in a criminal case are not attracted. In **Parameshwari** , the Apex Court had taken note of the observation made in its earlier decision in **Bimla Devi v. Himachal Road Transport Corporation [(2009) 13 SCC 530]** that, the claimants were merely to establish their case on the touchstone of MACA No.794 of 2008 12 preponderance of probability and that standard of proof beyond reasonable doubt could not have been applied. 16. In **Sherin J. Thankom v. Thankom and others [2014 (3) KLT 44]** a Division Bench of this Court held that, in deciding matters arising out of accident cases the Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a claim before the Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive at or decide things necessary to be decided for awarding compensation. 17. Viewed in the light of the law laid down in the decisions referred to supra, the reasoning of the Tribunal in the impugned judgment for dismissing the claim petition cannot be sustained. 18. In the result, this appeal is disposed of by setting aside the judgment dated 14.12.2007 in O.P.(MV) No.1042 of 2002 and the claim petition is remanded to the MACA No.794 of 2008 13 Motor Accidents Claims Tribunal, Kollam for reconsideration, taking note of the law laid down in the decisions referred to supra, after affording both sides an opportunity to adduce further evidence, both oral and documentary. 19. Since the claim petition is of the year 2008, the Tribunal shall finally dispose of the matter, as expeditiously as possible, at any rate, within a period of three months from the date of production of a certified copy of this judgment. Registry shall return the LCR forthwith. Sd/- ## **ANIL K.NARENDRAN, JUDGE** AV/10/1