Fazaludeen v. Rajendran Pillai and Renju and National Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 11TH DAY OF DECEMBER 2017/20TH AGRAHAYANA, 1939 MACA.No. 185 of 2014 () -----------------------AGAINST THE AWARD IN OPMV 947/2010 of M.A.C.T.,KOLLAM DATED 10-09-2013 ## APPELLANT(S)/PETITIONER: ----------------------- FAZALUDEEN, AGED 40 YEARS S/O IBRAHIMKUTTY, CHARUVILA PUTHEN VEEDU, KULAPPADOM CHERRY, NEDUMPANA P.O, KOLLAM ## BY ADV. SRI.C.RAJENDRAN ## RESPONDENT(S)/RESPONDENTS: ------------------------------------ ## 1. RAJENDRAN PILLAI, S/O. KRISHNA PILLAI, CHARUVILA PUTHEN VEEDU, ALUMMOODU P.O, THRIKKOVILVATTOM, KOLLAM 691577 2. RENJU, CHAKKUVARAKKAL KIZHAKKATHIL, PUNUKKANNOOR, ALUMMOODU, NOW RESIDING AT VIMAL NIVAS, KOTTAMKARA CHERRY, ELAMPALLOOR (P.O), KOLLAM- 691577 3. DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD, HOSPITAL ROAD, KOLLAM 691001 R3 BY ADV. SRI.T.V.AJAYAKUMAR R3 BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ. ==========================** ## **M.A.C.A. No.185 OF 2014** **==========================** Dated this the 11[th] day of December, 2017 ## **JUDGMENT** _Ravikumar, J._ The appellant injured filed O.P.(MV)No.947/2010 under section 166 of the Motor Vehicles Act seeking a compensation of Rs.7,50,000/- for the injuries sustained by him in a motor vehicle accident. 2. The case of the appellant was as follows:- On 31.3.2009, while he was walking alongside KannanalloorKulappadom road, the motor cycle bearing Reg.No.KL-2/AB-8263 driven by the second respondent, knocked him down. On sustaining injuries, he was taken to Holy Cross Hospital, Kottiyam and from there, he was shifted to District Hospital, Kollam. He remained there as inpatient for a period of 45 days. He was again treated as inpatient **M.A.C.A.185/2014** 2 at Travancore Medical College, Kollam for 49 days in three spells. The injuries sustained by him in the accident resulted in permanent disability. After going through the rival pleadings, the Tribunal had formulated the following issues for consideration:- 1. Whether such an accident took place as alleged? If so the claimant sustained injuries in the road traffic accident and who is responsible for that? - 2 Whether R2 was having no valid driving licence? 3. The quantum of the amount entitled to get by way of compensation? 3. After framing issues as extracted above, the Tribunal had permitted the parties to let in evidence. On the side of the appellant, he got himself examined as PW1 besides getting marked Exts.A1 to A18. It is also to be noted that he was referred for examination by the Tribunal and consequently, Ext.C1 disability certificate was issued by the duly constituted medical board. On the side of the respondents, no evidence, either oral or documentary, was adduced. After considering the rival contentions and appreciating the evidence on **M.A.C.A.185/2014** 3 record, the Tribunal had passed the impugned award. As per the same, the claim petition was dismissed. 4. A bare perusal of the impugned judgment would reveal that though the Tribunal had formulated three issues for consideration, judgment was not pronounced on all issues. The Tribunal, even after analysing Ext.A7 FIR and Ext.A12 final report laid in the crime registered in connection with the accident in question, held that the place and time of the accident mentioned in the FIR and the final report are different. Though the Tribunal virtually found that the appellant had sustained injuries and that the documents produced would reveal that the rider of the offending vehicle was responsible for causing the accident, it is held that the appellant-claimant had failed to prove that he sustained injuries as shown by those documents. Based on such conclusion and findings, the claim petition was dismissed. Hence, this appeal. 5. We have heard the learned counsel for the appellant and also the learned counsel for the third respondent insurance company. **M.A.C.A.185/2014** 4 6. Though the appellant has taken out notice to respondents 1 and 2 by paper publication, they have not chosen to enter appearance and contest the matter. It is to be noted that before the Tribunal also, they remained ex parte. The Tribunal, instead of pronouncing judgment on all issues formulated for consideration, considered only one of the issues and based on the answer to that issue, dismissed the claim petition. 7. In the contextual situation, we ween it only proper to refer to the decision of a Division Bench of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal** reported in **2011 (3) KLT 648.** It was held therein thus:- “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 anyone of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is **M.A.C.A.185/2014** 5 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.” The procedure to be adopted in case the Court feels that charge is collusive has also been specifically dealt with. It was held:“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.” In **National Insurance Co.** v. **Nirmala Balachandran [2012** **(3) KLJ 214],** the dictum in **Pazhaniammal** 's case was restated **.** We will now deal with the relevancy of those decisions in the context of this case with reference to the evidence on record. 8. As noticed hereinbefore, in this case, the appellant-claimant **M.A.C.A.185/2014** 6 in a bid to establish the fact that he had sustained injuries in a motor vehicle accident and the injuries resulted in permanent disability, adduced oral as also documentary evidence. He got himself examined as PW1. That apart, he had produced Ext.A7 which is the copy of FIR in the crime registered in connection with the accident in question. Evidently, the crime was investigated and thenceforth, a final report was laid by the police. Ext.A12 is the final report laid in the said crime under section 173(2) of the Code of Criminal Procedure. As per Ext.A12, the second respondent is the indictee and the very case of the appellant is that he sustained injuries in the motor vehicle accident involving the motorcycle ridden by the second respondent negligently. It is in this context that the decision in **Pazhaniammal** 's case and **Nirmala Balachandran** 's case assume relevance. Going by these decisions, production of police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under section 166 of the M.V.Act against the indictee. When it forms prima facie sufficient evidence, it was for the respondents to adduce **M.A.C.A.185/2014** 7 rebuttal evidence. As noticed hereinbefore, on the side of the respondents, no evidence, either oral or documentary, was adduced. A careful scanning of the impugned award would reveal that the Tribunal had not doubted the genuineness of Ext.A12 final report (police charge sheet) and it is believing the same as also Ext.A7 FIR registered in connection with the crime involving the second respondent for having committed the offences under sections 279 and 338 of the Indian Penal Code, using the motorcycle bearing Reg.No.KL-2/AB-8263 that the Tribunal concluded that the appellant had failed to establish that he had sustained injuries at the time and place mentioned in Exts.A7 and A12. It is based on the said conclusion that the claim petition was dismissed. 9. In the light of the decision in **Pazhaniammal** 's case and **Nirmala Balachandran** 's case, even without oral evidence from the part of the appellant, the Tribunal ought to have held that the appellant had succeeded in proving negligence on the part of the second respondent prima facie as he was the indictee in Ext.A12 **M.A.C.A.185/2014** 8 police charge sheet. Indisputably, the person who sustained injuries as a result of the commission of offences under sections 279 and 338 of IPC, going by Exts.A7 and A12 is the appellant. Evidently, there is no contra case for any of the parties. Then, the question is whether the respondents had adduced any rebuttal evidence despite the establishment of prima facie case by the appellant. We may hasten to add that the question whether the difference in time and place given in Ext.A10 wound certificate differs from the time and place shown in Exts.A7 and A12 could have been reason to hold that the appellant had failed to establish his case prima facie. Reverting back to the question whether the respondents had discharged their onus by adducing rebuttal evidence it can be seen that no rebuttal evidence was adduced by the respondents. In such circumstances, going by the aforesaid decisions, if any one of the parties do not accept such a charge sheet, the burden must on such party to adduce oral evidence. As noticed hereinbefore, none of the respondents adduce any evidence, either oral or documentary in the case on hand. Ext.A12 **M.A.C.A.185/2014** 9 would reveal that the appellant sustained injuries in a motor vehicle accident involving motor cycle bearing Reg.No.KL-2/AB-8263 driven by the second respondent. In this context, it is to be noted that it is only the variance in time and place that persuaded the Tribunal to hold that the appellant had failed to establish that he had sustained injuries in the accident as shown by the aforesaid documents. In the circumstances obtained in this case, it is to be noticed that even after establishing the said aspects prima facie by producing the police charge sheet, the appellant herein had adduced further oral evidence by getting himself examined as PW1. A perusal of the impugned judgment would reveal that it is only the variance in time and place noted in Exts.A10 wound certificate and Exts.A7 and A12 that made the Tribunal to arrive at the finding adverse to the appellant, as mentioned hereinbefore. We will now deal with the said issue. 10. In Ext.A10 wound certificate, the place of occurrence is noted as Nedumpana and the time of the accident was noted as 6 p.m. In the FIR as also in the final report, they are respectively noted as **M.A.C.A.185/2014** 10 Manjakkara in Nedumpana and 7 p.m. In this context, taking into account the nature of the dispute, we have called for the records. Ext.A12 would reveal that the place of accident has been noted therein thus:- “æÈ¿áOÈ ÕßçÜï¼ßW µá{MÞ¿¢ çºøßÏßW ÎEAø ®K ØíÅÜJí µßÝAá_É¿ßEÞùÞÏßGáU ¿ß çùÞÁßæa æÄAáÕÖ¢ ØíÅÞÉߺîßøßAáK ÎEAø èÄAÞÕßæa Õµ µÞÃßAÕFßÏáæ¿ ºáÕGßW ÈßKᢠ10 ÎàxV 85 æØ.ÎàxV Õ¿Aí µßÝAí ÎÞùßÏá¢..............................” 11. The place of accident is shown in Ext.A12 as above in tune with such recordings in Ext.A7 FIR. The place of accident was shown in Ext.A10 wound certificate as Nedumpana. Thus, it is evident that in the wound certificate, the name of the village alone was shown whereas in Ext.A7 FIR and Ext.A12 final report, the exact place was shown with detailed description. True that there appears to be an incongruity with respect to the time of the accident. In the wound certificate, the time of the accident was noted as 6 p.m and in the FIR, it is noted as 7 p.m. The date and hour of **M.A.C.A.185/2014** 11 examination was recorded in Ext.A10 wound certificate as 31.3.2009 and 6 p.m. It can only be taken that it was so recorded by the doctor who attended the claimant at that point of time. In the said document in Ext.A10, history and alleged cause of injury had been given as RTA “bike hit him”. Ext.A7 FIR would reveal that the crime was registered based on the information given by the injured himself when the police had turned up there, on getting information from the hospital. Ext.A10 would reveal that the appellant was brought to the hospital by one Mugeeb and it would also reveal that apart from the injuries sustained on leg, he had also sustained injuries on the head. Ext.A1 is the discharge card issued from District Hospital, Kollam. It would reveal that on being admitted as inpatient on 1.4.2009, he was discharged from there only on 15.5.2009. As noticed earlier, Ext.P10 would clearly show that immediately after the accident, he was taken to District Hospital, Kollam and he was examined from there. As part of the treatment k-nailing was done. Ext.A10 would also reveal that he had sustained fracture on right tibia and shaft of left femur. Ext.C1 **M.A.C.A.185/2014** 12 would reveal that immediately on sustaining injuries in the accident, he was taken to Holy Cross Hospital, Kottiyam on 31.3.2009 at 6 p.m. As noticed hereinbefore, it is the information given by the petitioner who sustained serious injuries not only on his leg but also on the head which led to the registration of Ext.A7 FIR. In the circumstances, the facts that the appellant had sustained injuries in a motor vehicle accident and that the vehicle involved in the accident was the motorcycle ridden by the second respondent could only be taken as established by the appellant. We have already found that in the wound certificate, the name of the village was shown and in Exts.A7 and A12, the precise place of incident was given with detailed description. The incongruity in regard to the time of the accident in question ought not to have taken, in the facts and circumstances of this case, as fatal enough to entail dismissal of the claim petition. In this context, it is apposite to note that the Tribunal had not referred to Ext.A11 which is the copy of the AMVI report dated 20.4.2009. It pertains to the vehicle allegedly involved in the accident. Serial No.7 **M.A.C.A.185/2014** 13 contains the details regarding the damages sustained by the vehicle. It would reveal that head lamp was broken and crash guard was bent. Foot rest centre and foot brake pedal were also bent. Rear view mirror was missing and such other damages. Ext.A11 would also thus reveal that the said vehicle had involved in an accident and further that the accident had not occurred due to any mechanical defect. Ext.A11 report is undoubtedly a report prepared in respect of the vehicle in question after its involvement in an accident. The precise case of the appellant is that he sustained injuries in the accident involving the said vehicle. It is to be noted that the appellant while being examined as PW1 deposed to the effect that he had sustained injuries in the motor vehicle accident occurred on 31.3.2009 involving the motor cycle bearing Reg.No.KL-2/AB-8263 driven by the second respondent. Evidently, despite being cross examined, nothing to discredit his version was elicited. True that respondents 1 and 2 had remained ex parte before the Tribunal and they have also not entered appearance in this proceedings. At the same time, the **M.A.C.A.185/2014** 14 third respondent with whom the aforesaid vehicle was insured did not have a proven case that Ext.A11 AMVI report in respect of the said vehicle relates to an accident occurred on a day other than on 31.3.2009. Taking into account all such circumstances and also the decision referred (supra), we are of the considered view that the Tribunal had committed palpable mistake, rather, illegality in appreciating the evidence. In other words, the findings of the Tribunal is totally against the weight of evidence. We are also constrained to say that the Tribunal ought not to have ignored the binding precedents, referred to hereinbefore, while appreciating the evidence on record. When once it is found that the finding of the Tribunal is against the weight of evidence as also against the binding precedents of this Court, it is liable to be set right. Consequently, the finding of the Tribunal that the appellant had failed to establish that he sustained injuries in a motor vehicle accident involving motor cycle bearing Reg.No.KL-2/AB-8263 is vacated. In the light of the evidence on record, we hold that the appellant has succeeded in **M.A.C.A.185/2014** 15 proving that the accident in question in which the appellant sustained injuries as revealed from the medical records had occurred on 31.3.2009 and it involved motor vehicle bearing Reg.No.KL-2/AB8263 ridden by the second respondent. In the light of the decisions in **Pazhaniammal** 's case and **Nirmala Balachandran** 's case as also in the light of the evidence adduced by the appellant as PW1 as also Ext.A12, it is further held that the appellant has succeeded in establishing that the accident in question had occurred due to the negligence on the part of the second respondent. The issue No.1 formulated by the Tribunal is found accordingly. 12. We have already mentioned that the Tribunal had failed to pronounce the judgment on all issues in consonance with the provisions under Order 14 Rule 2 of the Code of Civil Procedure. Though the said provision is not specifically made applicable to Claims Tribunals, it is only proper for the Claims Tribunal to pronounce the judgment on all issues unless in a given case the matter could be disposed solely based on a question of law and not based on **M.A.C.A.185/2014** 16 a mixed question of law and facts. In respect of a matter like the one on hand, it is only desirable to pronounce the judgment on all issues so that in case of interference by the appellate court on the question decided against the claimant a contingency to remand the matter would not occur, in the normal circumstances. In the circumstances obtained in this case, though the accident had occurred more than 8 years back, we have no option, but to remand the matter to the Tribunal. In view of our finding on the question of negligence certainly, there cannot be an open remand. 13. There is no case for the third respondent-insurance company that the vehicle in question was not having a valid insurance coverage at the time of the accident. At the same time, evidently, the third respondent has taken up a contention in the written statement that the second respondent was not having valid driving licence at the time of the accident. The third respondent did not establish the same. At the same time, it is to be noted that the said contention was not at all refuted by the first respondent or the second respondent. Hence, **M.A.C.A.185/2014** 17 we are of the view that the said question can be left open to be decided by the Tribunal. 14. As noticed hereinbefore, the documents would reveal that the appellant had sustained injuries in a motor vehicle accident. Evidently, he had sustained such injuries due to the tortious action of another, in this case, negligence on the part of the second respondent. He is certainly entitled to get compensation for the injuries including compensation for the loss of bodily integrity as can be seen from Ext.C1 disability certificate issued by duly constituted medical board. It is the failure on the part of the Tribunal to pronounce the judgment on all issues adhering to Order 14 Rule 2, C.P.C, that disabled us from deciding the questions covered by issue No.2 and 3 framed by the Tribunal, as extracted hereinbefore. In such circumstances, this appeal is allowed to the above extent. The matter is remanded to the M.A.C.T, Kollam for the purpose of quantifying the compensation payable to the appellant-claimant. It is also made clear that the Tribunal shall also issue notice to respondents 1 and 2 and shall also **M.A.C.A.185/2014** 18 decide whether there is any violation of policy condition so as to decide the question as to question of liability. Since the claim petition is of the year 2010, the Tribunal shall dispose of the matter finally as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of this judgment. Registry shall transmit the records to the Tribunal. There will be no order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **MARY JOSEPH** **(JUDGE)** **spc/** //True copy// Sd/- P.A.to Judge **M.A.C.A.185/2014** 19 **C.T. RAVIKUMAR, J.** **M.A.C.A.185/2014** 20 **JUDGMENT September, 2010**