John P.V. v. Basheer S/o Abdul Azeez and The National Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **TUESDAY, THE 14[TH] DAY OF SEPTEMBER 2021 / 23RD BHADRA, 1943** ## **MACA NO. 2054 OF 2014** **AGAINST THE JUDGMENT IN OPMV 2858/2008 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL,ERNAKULAM** ## **APPELLANT/PETITIONER IN OP(MV)2858/08:** **JOHN P.V AGED 40 YEARS S/O.VARGHESE, HOUSE NO 5/492, PAZHAMADATHIL HOUSE, KULAYETTIKKARA, KANJIRAMATTAM VILLAGE, ERNAKULAM** **BY ADV SRI.P.P.JACOB** ## **RESPONDENTS/RESPONDENTS IN OP(MV)2858/08:** - **1 BASHEER S/O.ABDUL AZEEZ,HOUSE NO 2/508,KALLUCHIRA, MANNANCHERY VILLAGE,ALAPPUZHA** - **2 THE NATIONAL INSURANCE COMPANY LIMITED, NELLAI COMPLEX,NORTH OF IRON BRIDGE, ALAPPUZHA** **SRI.ABHIJETT LESSLI-R2** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON** **3.9.2021, THE COURT ON 14.09.2021 DELIVERED THE FOLLOWING:** MACA 2054/2014 ..2.. ## **JUDGMENT** This is an appeal preferred by the claimant impugning the judgment and award in OP(MV) No.2858/2008 passed by the Motor Accidents Claims Tribunal, Ernakulam, dismissing the petition. 2. The case of the claimant/appellant is that on 26.09.2008, at about 01.p.m., while he was riding his scooter bearing Reg. No.KL05/L-1839 along with his wife through Vechoor-Vaikom road, and when he reached near Attara bridge at Thottam Desom, a tipper lorry, bearing Reg.No. KL-04/T-7348, driven by the 1[st] respondent came backward in a rash and negligent manner with high speed and hit on his scooter. As a result, the appellant along with the scooter was thrown out and he sustained injuries. He was taken to Lakeshore Well Care Hospital, Vytila and was treated there. According to the appellant, the accident occurred due to rash and negligent driving of the tipper lorry by the 1[st] respondent, who is none other than its owner. In the petition, the claimant/appellant claimed an amount of Rs.4,50,000/- towards compensation in connection with the personal injuries sustained to him. MACA 2054/2014 ..3.. 3. The 1[st] . respondent, the owner-cum-driver, was set _ex parte_ The 2[nd] respondent Insurance Company filed a written statement admitting that the tipper lorry was insured with the 2[nd] respondent and had a valid policy at the time of the accident, however, disputing the age, occupation and income of the claimant. It was also contended that the accident happened due to his negligence. 4. Later, an additional written statement was filed by the Insurance Company, contending that, as per the charge sheet filed by the police, the accident occurred while the appellant was riding his scooter and it hit behind the lorry and denying the contention of the appellant that the lorry was moving backward and hit on the scooter. 5. Before the Tribunal, the claimant/appellant was examined as PW1 and Exts.A1 to A14 documents were marked on his side. Ext. A8 is the final report in crime No. 659/08 of Vaikom Police Station. Relying on Ext.A8 final report, the Tribunal held that, on investigation, the police found that the appellant has ridden the scooter in a careless manner and dashed behind the parking lorry and sustained injuries and the police has referred the case as 'accidental' MACA 2054/2014 ..4.. and that he sustained injuries due to his own negligence. Though the appellant contended that he has filed Ext.P9 private complaint against Ext.A8, the Tribunal found that it was filed 4½ years after the incident and it shows that the private complaint was filed only to get compensation from the Tribunal. Therefore, the Tribunal, on the basis of Ext. A8 refer report, found that the accident occurred due to the negligence of the appellant and dismissed the petition. Though an issue was framed regarding the appellant’s entitlement to get compensation and the quantum, the Tribunal, without much discussion, held that the medical bills produced were photocopies and there is no evidence to prove the exact amount spent by the appellant for his treatment. Challenging the judgment and award passed by the Motor Accidents Claims Tribunal, Ernakulam, the claimant has preferred this appeal. 6. During the pendency of this appeal, the appellant has filed I.A No.4843/2017 to accept certain documents _viz.,_ certified copy of Ext.A9 protest complaint, A1 FIR, A2 FI statement, A3 scene mahazar, A6 inspection report of AMVI, A4 wound certificate and the MACA 2054/2014 ..5.. judgment in S.T. No.4255/2013 of the Judicial First Class Court, Vaikom dated 28.04.2016, which are marked as Annexures A1 to A7 respectively in the interlocutory application. In the affidavit dated 27.11.2017 filed in support of the said application, the appellant has stated that Ext.A9 protest complaint was taken cognizance of by the Judicial First Class Magistrate Court, Vaikom and culminated in Annexure-A7 judgment. It is evident from Annexure-A7 that, the 1[st] respondent herein, the driver, who is the accused in S.T. No.4255/2013 appeared and pleaded guilty of the offences under Sections 279 and 338 of the Indian Penal Code (IPC). The plea was accepted and the 1[st] respondent/ the accused was convicted and sentenced to fine of Rs.1,000/- for the offence under Section 279 of the IPC and sentenced to fine of Rs.1,000/- for the offence under Section 338 of IPC. The 1[st ] respondent/accused was also sentenced to undergo imprisonment till the rising of the Court. From the judgment of the Tribunal, it is seen that the Tribunal has solely relied on Ext.A8 refer report to conclude that the accident happened due to the negligence of the claimant/appellant. This Court, MACA 2054/2014 ..6.. in **Rajesh C.B.** _**v.**_ **Justin M.G. and others [2020(4) KHC 708: ILR 2020 (4) Ker. 65: 2020 (4) KLJ 352: 2020 (6) KLT 641],** has held that the final report of the police and the conclusion thereof would not constitute legal evidence and a substitute for evidence and proof of negligence, unless translated the same into legal evidence. Though Ext.P9 protest complaint was then pending before the Judicial First Class Magistrate Court, Vaikom, the Tribunal observed that the same was filed 4½ years after the incident only to get compensation from the Tribunal. Now, from the documents produced by the appellant, it is evident that the learned Magistrate has taken cognizance of the protest complaint which culminated in Annexure-A7 judgment leading to the conviction of the 1[st ] respondent, who pleaded guilty for the commission of offences under Sections 279 and 338 of the IPC. Though the final outcome of the proceedings pursuant to Ext.P9 protest complaint was unknown at the time of trial of the claim petition before the Tribunal, the reliance placed on Ext.P8 refer report lost its relevance upon the judgment of conviction. In **Mohankumar K.P.** _**v**_ **. Kuniyel Ibrahim and others [2019 KHC 59]** , a Division MACA 2054/2014 ..7.. Bench of this Court has taken the view that a final report will not outlive and outweigh the judgment in the case arising therefrom. Accordingly, the judgment and award in OP(MV)No.2858/2008 passed by the Motor Accidents Claims Tribunal, Ernakulam is set aside. The matter is remanded to the Tribunal for fresh consideration on all issues with opportunity to the parties to adduce further evidence. Since the accident occurred in the year 2008, it will be in the interest of justice if Tribunal takes up the matter and disposes of the same not later than six months from the date of receipt of copy of this judgment. Records be sent back to the Motor Accidents Claims Tribunal, Ernakulam. There will be no order as to costs. Sd/- ## **MURALI PURUSHOTHAMAN JUDGE** MACA 2054/2014 ..8.. ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** - **I:CERTIFIED COPY OF THE COMPLAINT FILED BY THE PETITIONER DATED 1.5.2013.** - **II:CERTIFIED COPY OF THE FIR IN CRIME NO.659/08 REGISTERED BY THE VAIKOM POLICE BEFORE THE MAGISTRATE COURT DATED 28.9.2008.** - **III:CERTIFIED COPY OF THE FIRST INFORMATION STATEMENT RECORDED BY THE POLICE DATED 28.9.2008.** ## **IV:CERTIFIED COPY OF THE MAHAZAR PREPARED BY THE POLICE.** - **V:CERTIFIED COPY OF THE INSPECTION REPORT OF THE SCOOTER AS WELL AS TEMPO VAN DATED 3.10.2008 PREPARED BY THE MOTOR VEHICLE INSPECTOR.** - **VI:CERTIFIED COPY OF THE WOUND CERTIFICATE ISSUED FROM THE WELL CARE HOSPITAL, VYTTILA DATED 26.9.2008 & 16.10.2008.** - **VII:CERTIFIED COPY OF THE JUDGMENT IN S.T.4255/13 ISSUED FROM THE JUDICIAL FIRST CLASS MAGISTRATE COURT, VAIKOM DATED 28.4.2016.** ## **spc/**