Director General of Police Kerala Police Headquarters v A Kanakam and K S Mohammed Saleem

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 17TH DAY OF SEPTEMBER 2020 / 26TH BHADRA, 1942** ## **MACA.No.1834 OF 2013** **AGAINST THE AWARD IN OPMV 58/2009 DATED 17-09-2012 OF DISTRICT COURT & SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KASARAGOD** ## **APPELLANTS:** - **1 THE DIRECTOR GENERAL OF POLICE KERALA POLICE HEAD QUARTERS,THIRUVANANTHAPURAM.** - **2 THE DISTRICT INSURANCE OFFICER KASARAGOD.** - **3 THE STATE REPRESENTED BY DISTRICT COLLECTOR,KASARAGOD.** **BY GOVERNMENT PLEADER SRI.C.K.PRASAD** ## **RESPONDENTS:** - **1 A.KANAKAM W/O.M.K.MOHANAN,R/AT KOTAKKUNNU,PALLIKERE VILLAGE,HOSDURG TALUK,P.O.PALLIKERE,PIN-671316.** **2 K.S.MOHAMMED SALEEM P.C.1261, S/O.MUHIYUDEEN KUTTY,ACAR CAMP,KASARAGOD,PIN-671121.** ## **R1 BY ADV. K.ANAND** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-09-2020, THE COURT ON 17-09-2020 DELIVERED THE FOLLOWING:** MACA.No.1834 OF 2013 2 ## **JUDGMENT** **Dated this the 17th day of September 2020** The appellants were the respondents 2 to 4 in OP(MV) No.58 of 2009 on the file of the Motor Accidents Claims Tribunal, Kasaragod. The 1[st] respondent in the appeal was the claimant before the Tribunal, who filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of a motor accident that took place on 8.12.2005. The parties are, for the sake of convenience, referred to as per their litigate status in the appeal. 2. It was the case of the 1[st] respondent in the claim petition that she was an accused in crime No.445/2005 of Bekal Police Station. She was remanded in judicial custody. On 8.12.2005, while she was taken from the Sub Jail Kasaragod to the Court at Hosdurg, the Police Jeep bearing MACA.No.1834 OF 2013 3 registration No.KL-01/AA-4830, due to the rash and negligent driving by the 2[nd] respondent, met with an accident. The vehicle capsized and the 1[st] respondent sustained serious injuries as mentioned in column no.1 of the claim petition. Accordingly, the 1[st] respondent filed the claim petition before the Tribunal, claiming a compensation of Rs.2,50,000/-. 3. The 2[nd] appellant entered appearance and filed a written statement. It was, inter alia, contended that the accident occurred on account of the rashness and negligence of the 2[nd] respondentdriver. However, the 2[nd] appellant admitted the insurance policy. It was further contended that the 1[st] respondent was a passenger in a private vehicle, who was not covered under the policy. Hence, the 2[nd] appellant is not liable to indemnify the insured or pay compensation to the 1[st] respondent. 4. Neither party adduced any oral evidence. MACA.No.1834 OF 2013 4 The 1[st] respondent produced and marked Exts.A1 to A5 in evidence. The 2[nd] appellant produced the insurance policy, which was marked as Ext.B1 in evidence. 5. After considering the pleadings and materials on record, the Tribunal by the impugned award allowed the claim petition, in part, by directing the 2[nd] appellant to deposit an amount of Rs.64,150/- with interest @ 8% per annum with proportionate costs, to be paid as compensation to the 1[st] respondent. 6. It is aggrieved by the impugned award that this appeal is filed. 7. Heard the learned Government Pleader appearing for the appellants and Sri.K.Anand the learned counsel appearing for the 1[st] respondent. There is no appearance for the 2[nd] respondent. 8. The learned Government Pleader argued that going by the material on record, it is seen that MACA.No.1834 OF 2013 5 the vehicle had developed a mechanical defect. Hence, no negligence can be attributed on the 2[nd] respondent-Driver. Moreover, the onus of proof was on the 1[st] respondent to establish that there was negligence on the part of the 2[nd] respondent. He relied on the decision of the Hon'ble Supreme Court in **Surender Kumar Arora & Anr. Vs. Dr.Manoj Bisla & Ors [AIR 2012 (SC) 1918].** 9. The learned counsel appearing for the 1[st] respondent, on the contrary, argued that the 1[st] respondent had produced Exts.A1-FIR and A2charge sheet in crime No.884 of 2009 of Kasaragod Police Station, which substantiates that there was a motor accident. It is seen from the said records that it was the 2[nd] respondent, who was the driver of the vehicle at the relevant point of time. Moreover, Exts.A3 to A5 medical reports substantiate that the 1[st] respondent had sustained serious injuries in the accident. He relied on the MACA.No.1834 OF 2013 6 decision of the Hon'ble Supreme Court in **Minu B.Mehta and another V. Balkrishna Ramachandra Nayan and antoher [AIR 1977 SCC 1248]** which reads thus:- “12. x x x x x x We find ourselves in agreement with the reasoning of the Claims Tribunal that the evidence on the side of the owners is contradictory and the testimony of the expert destroys the plea of any mechanical defect set up by them. In this **connection we may also point out that in order to succeed in a defence that the accident was due to a mechanical defect the owners will have to prove that they had taken all necessary precautions and kept the lorry in a roadworthy condition.** No such attempt was made to establish that all necessary precautions were taken to keep the lorry in a roadworthy condition and that the defect occurred in spite of the reasonable care and caution taken by the owners.” 10. The learned counsel hence contended that the impugned award passed by the Tribunal is in line with the ratio in the above decision. Hence, MACA.No.1834 OF 2013 7 the appeal may be dismissed. 11. The sole question that emerges for consideration in this appeal is whether the appellants are liable to pay the compensation awarded to the 1[st] respondent. 12. It is on record that the 1[st] respondent had produced Ext.A1 FIR which was registered by the Kasaragod Police on 8.12.2005 in connection with the crime No.884 of 2005. Ext.A1 was registered under Section - Motor Occurrence. It is clearly mentioned in the FIR that the vehicle bearing No.KL-01/ A-4830 driven by the 2[nd] respondent met with an accident on 8.12.2005. Subsequently, the police after investigation filed Ext.A2 charge sheet on 24.5.2005, stating that the accident occurred on 8.12.2005 was a “Motor Occurrence” . 13. It is curious that the police have registered the FIR without any offence, but under the title “Motor Occurrence“. There is no MACA.No.1834 OF 2013 8 statutory/charging provision under any enactment of such nature for the said offence. The Police also did not refer the case after investigation, but filed the final report. The Tribunal on the basis of Exts.A1 and A2 came to the conclusion that the accident occurred due to the negligence of the 2[nd] respondent. 14. A Division Bench of this court in **The New India Assurance Co. Ltd V. Pazhaniammal [2011 (3) KLT 648]** has held as follows:- “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 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 MACA.No.1834 OF 2013 9 the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under S.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 cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under S.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.” 15. In view of the emphatic declaration of MACA.No.1834 OF 2013 10 law in **Pazhaniammal** (supra), which has been followed by another Division Bench of this Court in **National Insurance Company Ltd, Thalassery V. Ramla and others [2016 (4) KHC 891]** and Exts.A1 and A2, I am of the considered opinion that the Tribunal has rightly found that it was due to the negligence on the part of the 2[nd] respondent that the accident occurred and the 1[st] respondent sustained injuries. 16. It is also pertinent to note that the 2[nd] appellant had filed the written statement, wherein no defence of a mechanical defect was taken up, as now contended before this court. Without there being a specific plea, that it was due a mechanical defect, that the accident took place, it is too late in the day for the appellants to now contend that the accident occurred not due to the negligence of the 2[nd] respondent, but due to the alleged mechanical defect of the vehicle. Moreover, the respondents MACA.No.1834 OF 2013 11 have mounted the box and let in any evidence to substantiate their defence. Only Ext.B1 insurance policy was produced to prove that the vehicle was insured with the 2[nd] appellant. 17. The Hon'ble Supreme court in **Kaushnuma Begum (Smt) & Ors v The New India Assurance Co.Ltd & Ors [2001 (2) SCC 9]** a case of identical nature, has held that where the vehicle capsized due to the bursting of the front tyre and hit a pedestrian, even if there is no negligence on the part of the driver or owner of the vehicle, but when an accident occurs while using the vehicle, the owner of the vehicle is liable to pay compensation to the person who suffered injuries on account of the accident. 18. It was following the principles in the classic decision in **Rylands v Fletcher** that the Supreme Court went on to laid down the said ratio in **Kaushnuma Begum** . It was observed in MACA.No.1834 OF 2013 12 paragraph 19 of the judgment that like any other common law principle which is acceptable to our jurisprudence, the rule in **Rylands v Fletcher** can be followed at least until any other new principle which excels the former can be evolved or until legislation provides differently. In view of the ratio decidendi in **Kaushnuma Begum** and **Minu B.Mehta** (supra); **Pazhaniammal** and **Ramla** (supra); Exts.A1 and A2 and the reluctance of respondents of letting in any contra evidence, I uphold the award passed by the Tribunal. The appeal is devoid of any merits and is hence dismissed. ## **Sd/-** **C.S.DIAS** **JUDGE** ska