K.P. Mohankumar v. Kuniyel Ibrahim, K.P. Divakaran, ICICI Lombard General Insurance Co. Ltd. and Anil (MACA Nos. 2893 & 2947 of 2016)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH WEDNESDAY, THE 16TH DAY OF NOVEMBER 2016 / 25TH KARTHIKA, 1938 MACA.No. 2893 of 2016 --------------------------AGAINST THE AWARD IN OPMV 332/2009 of MACT VATAKARA DATED 27-04-2016 APPELLANT(S)/1ST RESPONDENT ## K.P. MOHANKUMAR AGED 57 YEARS, S/O. A.V.KUNHIRAMAN NAIR, RAMA NILAYAM, KAVILUMPARA POST, THOTTIPALAM, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADV.SRI.V.BINOY RAM RESPONDENT(S)/PETITIONER/ RESPONDENTS 2 TO 4: ## 1. KUNIYEL IBRAHIM - S/O. MOIDEEN, PALLIYARKANDI HOUSE, KALLAD, KUTTIADY, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673508. 2. K.P.DIVAKARAN S/O. KUNHIRAMAN NAIR, KALLUMPARAMBATH HOUSE, KAVILUMPARA POST, THOTTIPALAM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673513. ## 3. ICICI LOMBARD GENERAL INSURANCE CO. LTD. CITY PLAZA, 2ND FLOOR, YMCA CROSS ROAD, CALICUT, PIN-673001. ## 4. ANIL S/O. NANU, MANALODIYIL HOUSE, MANNAMKAL, THOTTIPALAM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673513. R3 BY ADV. SRI.R.AJITH KUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16-11-2016 ALONG WITH MACA.2947/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **"C.R"** **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ. - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.2893 & 2947 of 2016** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of November, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** The above appeals arise from the judgment and award dated 27.04.2016 in O.P.(M.V.)No.332/2009 passed by the Motor Accidents Claims Tribunal, Vatakara. The former appeal has been preferred by the first respondent who is the owner of the vehicle involved in the accident viz. the bus bearing registration No.KL-18-D-2070, challenging the right to recover the amount to satisfy the award upon its satisfaction, granted to the insurer of the offending vehicle. The latter appeal has been preferred by the injuredpetitioner seeking enhancement of the quantum of compensation awarded. In the said circumstances, the appeals were jointly heard and they are being disposed of by this common judgment. For the sake of convenience hereafter in this judgment the parties are referred to in accordance with their rank and status before the Claims M.A.C.A.2893 & 2947/2016 2 Tribunal in O.P.(M.V.)No.332/2009 unless otherwise specially mentioned. 2. We have heard the learned counsel for the 1[st] respondent-appellant in MACA 2893/2016, the appellant -petitioner in MACA 2947/2016 as also the third respondent, the insurer of the offending vehicle. From the arguments advanced before this court it is evident that there is no dispute regarding the accident and also the insurance coverage of the offending vehicle. Virtually, the dispute is only with respect to the question as to who was driving the vehicle in question at the time of the accident. This assumes relevance as according to the third respondent-insurance company the vehicle was then being driven by the fourth respondent who was not then possessing a valid driving licence. However, the precise case of the claimant and also the first respondent, is that the offending vehicle was then being driven by the second respondent and he was having a valid driving licence at the time of the accident. In fact, the second respondent also endorsed the said contentions of the claimant and the first respondent. M.A.C.A.2893 & 2947/2016 3 3. In view of the nature of the arguments advanced before us and also the manner in which the Tribunal had appreciated the evidence on record and arrived at a conclusion on the aforesaid question a point of law crop up for consideration. In the claim petition as also before the Claims Tribunal the petitioner contended that it was the second respondent who drove the vehicle at the time of the accident. But, the learned counsel appearing for the third respondent submitted that the petitioner had amended the claim petition to incorporate an averment to the effect that the offending vehicle was driven by the fourth respondent at the time of the accident. The learned counsel for the petitioner, on the other hand, submitted it is incorrect to say that the petitioner had amended the claim petition. It is further submitted that it is a misconception that made the third respondent to make such a submission. According to him, I.A.Nos.909/2013 and 910/2013 which formed the basis for such a submission did not carry a prayer as alleged by the third respondent. It is submitted that taking note of the averment of the third respondent insurance company M.A.C.A.2893 & 2947/2016 4 in its written statement that at the time of the accident the vehicle in question was being driven by one Anil who was then the cleaner of the said bus, in I.A.No.909/2013 prayer was only to implead the aforesaid Anil as supplemental 4[th] respondent. In I.A.No.910/2013 the prayer was to amend the cause-title by incorporating the name of the aforesaid Anil as supplemental 4[th] respondent and also to amend the claim petition by incorporating the word 'bus' instead of the word 'motorcycle' in the second line of paragraph 4 of the claim petition. It is submitted that these are the only interlocutory applications which were allowed by the Tribunal. The learned counsel, in the said circumstances, submitted that the granting of the aforesaid prayers made as per the aforesaid interlocutory applications, therefore, could not and would not result in deviation from the original pleadings, as alleged by the third respondent. In other words, it is submitted that all along the contention of the petitioner is that the offending vehicle was being driven at the time of the accident by the second respondent. That precisely, is the case of the first M.A.C.A.2893 & 2947/2016 5 respondent - the owner of the bus as also the second respondent. It is pertinent to note that the 2[nd] respondent who was arrayed in the claim petition in his capacity as the driver of the offending bus also admitted the fact that it was he who was driving the vehicle at the time of the accident, in his written statement. However, a perusal of the impugned judgment would reveal that the Tribunal had accepted the contention of the third respondent that the offending vehicle was being driven at the relevant point of time by the fourth respondent, relying on Ext.B3 charge sheet in crime No.406/2008 of Kuttiadi Police Station registered in connection with the accident in question, evidently referring to the dictum laid down by this court in **New India Assurance Co. Ltd. v. Pazhaniammal [2011 (3) KLT 648]** . The contention of the learned counsel appearing for the third respondent is that in the light of the dictum laid down in Pazhaniammal's case it cannot be said that the Tribunal had erred in holding that the 4[th] respondent was the person who was driving the offending bus at the time of the accident. M.A.C.A.2893 & 2947/2016 6 4. Per contra, the learned counsel appearing for the first respondent as also the claimant who are respectively the appellants in the captioned appeals contended that the Tribunal had wrongly applied the decision in Pazhaniammal's case as, on facts obtained in this case, the said decision is totally inapplicable, to hold the 4[th] respondent as the driver of the offending bus at the time of the accident. It is submitted that the Tribunal had lost sight of the fact that the Judicial First Class Magistrate, Nadapuram though took cognizance on Ext.B3 ultimately acquitted the 4[th] respondent as per Ext.B1 judgment in C.C.No.614/2009. In such circumstances, the Tribunal ought not have relied on Ext.B3 to arrive at a conclusion, accepting it as a prima facie evidence evincing that the vehicle in question was being driven by the 4[th] respondent at the time of the accident. In view of the said rival contention the point of law to be resolved in the former appeal is whether the final report filed under Section 173 (2) of the Code of Criminal Procedure Code, described as police charge sheet in Pazhaniammal's case outweigh the judgment M.A.C.A.2893 & 2947/2016 7 ultimately rendered in that case registered upon taking cognisance on that first report? 5. True that in Pazhaniammal's case the Division Bench held that in a claim filed under Section 166 of the M.V.Act production of, police charge sheet laid in the crime registered in respect of the accident in question is sufficient prima facie evidence relating negligence. This position was restated by this court in the decision **National Insurance Co. v. Nirmala Balachandran [(2012) (3) KLJ 214]** . There cannot be any dispute with respect to the said position. In fact the said position is not at all disputed by the learned counsel appearing for the claimant and also the first respondent. The very fact it would only form a prima facie sufficient evidence itself would reveal that it is rebuttable. We will deal with the said aspect a little later. 6. Now, a close scrutiny of the provisions under the Code of Criminal Procedure( for short Cr.P.C.) would reveal that the very term charge sheet is a misnomer and in fact, it is nothing but a final report laid in a crime essentially under Section 173 (2) of the Code after the M.A.C.A.2893 & 2947/2016 8 completion of the investigation. In fact, the said position was stated by a Division Bench of this Court in the decision in **Fazal Mahmood v. Rasheed [2015 (2) KLT 266]** . As noticed hereinbefore the question is whether such a final report would outweigh the judgment in the case arising therefrom. 7. Now this case, evidently, in respect of the accident in question, at Kuttiadi Police Station crime was registered and Ext.B3 is the charge sheet laid in that crime. Ext.A1 is the FIR registered in connection with the accident and it is after conducting investigation that Ext.B3 charge sheet was laid. True that it was 4[th] respondent who was arraigned as the accused therein. Cognizance was taken thereon and it was numbered as C.C. 614/2009 and Ext.B1 is the judgment rendered by the Judicial First Class Magistrate, Nadapuram in the said calendar case. While considering the aforesaid question the said indisputable and undisputed facts also assume relevance especially in the light of Pazhaniammal's case. We are not oblivious of the fact that a Claims Tribunal specifically constituted for adjudicating compensation in a M.A.C.A.2893 & 2947/2016 9 motor accident claims are not regulated by the provisions under the Code of Civil Procedure except to the extent specially made applicable under the M.V. Act. The provisions of Code of Civil Procedure also do not proprio vigorie applicable to the proceedings before Claims Tribunals except in respect of matters where the provisions of C.P.C. are made by the provisions of the M.V. Act. When a Claims Tribunal takes into consideration a final report laid in a case for the purpose of deciding whether it should be taken as a sufficient prima facie evidence relating negligence we have no hesitation to hold that the Tribunal cannot lost sight of the basic principle. Evidently when a crime is registered in connection with an offence after registering the FIR an investigation has to be conducted and in terms of Section 173 (2) Cr.P.C. after conducting such investigation an officer in charge of the police station shall have to forward a copy of the said police report to a Magistrate empowered to take cognizance of an offence on that police report. Section 195, Cr.P.C. empowers the said court to take cognizance on the said police report. M.A.C.A.2893 & 2947/2016 10 Evidently in this case Ext.B3 was laid before Judicial First Class Magistrate, Nadapuram and that the learned Magistrate took cognizance on it in terms of the provisions under Cr.P.C. It was taken on file as C.C.No. 614/2009. Evidently, it was the 4[th] respondent who was arraigned as the accused therein and after conducting the investigation a final report was laid against him. Ext.B1 would reveal that after the trial the learned Magistrate acquitted the 4[th] respondent under Section 255(1) Cr.P.C. holding him not guilty of the offences punishable under Sections 279 and 338 IPC. A perusal of Ext.B1 would reveal that three witnesses were examined on behalf of the prosecution and none of them deposed regarding the involvement of the accused i.e. 4[th] respondent herein. It would further reveal that their oral testimony is to the effect that the accused therein, viz., the 4[th] respondent herein was not the driver of the bus at the time of the accident in question. It is appreciating the evidence of PWs1 to 3 that the learned Magistrate arrived at a finding that the prosecution has failed to establish the case against the accused i.e. 4[th] respondent and consequently M.A.C.A.2893 & 2947/2016 11 held him not guilty of the offences punishable under Sections 279 and 338 of IPC and acquitted him under Section 255 (1) Cr.P.C. 8. In the circumstances, how can it be said Ext.B1 judgment would have no significance in any proceedings wherein he is accused of being the driver of the offending bus at the time of the accident in question merely based on Ext.B3 charge sheet? We may hasten to add that we shall not be understood to have held that a judgment of a criminal court is binding or conclusive as relates proceedings before a Claims Tribunal. But, at the same time it is an indisputable position that a judgment like Ext.B1, of a criminal court is relevant even before a Claims Tribunal in a proceeding for compensation based on the accident in question which led also to the case in which such a judgment was rendered. We are giving emphasize to the position that when a Claims Tribunal considers a final report laid in a crime after an investigation for the purpose of deciding whether it could be taken as a sufficient prima facie evidence regarding negligence then the Tribunal cannot lost sight of a M.A.C.A.2893 & 2947/2016 12 judgment which was rendered in the case arising from the very same final report when it is produced before it. If the final report is relied on even after an acquittal under Section 255(1) it is as good as holding that a final report will outlive a judgment and outweigh the latter in a proceeding before the Claims Tribunal. In such circumstances while agreeing with the dictum laid down in Pazhaniammal's case to the effect that in a claim petition filed under Section 166 of the M.V. Act production of a final report in the crime registered in connection with the accident in question can be taken as a sufficient prima facie evidence against the indictee we are of the view that it cannot be said that the said decision laid down a proposition that even after the judgment in the case concerned arising from the final report, the final report will outlive and outweigh the judgment. The very expression employed in Pazhaniammal's case assumes relevance in this context. The dictum laid down therein is that in such a case production of charge sheet would be 'a sufficient prima facie evidence of negligence'. It would indeed reveal that rebuttal evidence could be let in. M.A.C.A.2893 & 2947/2016 13 Necessarily, in situations like the case on hand, production of judgment acquitting the accused concerned who is also a party in the proceedings before the Claims Tribunal, under Section 255 (1) has to be taken as rebuttal evidence and thereafter, it cannot be taken that the production of a charge sheet will continue to be a sufficient prima facie evidence ignoring the judgment. It is also to be noted that it is nobody's case that as against Ext.B1 judgment an appeal had been preferred and Ext.B1 judgment had not attained the finality. In such circumstances and in view of the discussion as above we are of the considered view that the Tribunal ought not to have held that Ext.B3 charge sheet is sufficient prima facie evidence of negligence of the indictee therein viz., the 4[th] respondent before the Tribunal in driving the offending vehicle ignoring Ext.B1 judgment. In such circumstances we are of the view that the understanding of the ratio of the decision in Pazhaniammal's case by the Tribunal is nothing but a misconception of the same. 9. In the contextual situation another aspect also assumes relevance. The petitioner was examined before M.A.C.A.2893 & 2947/2016 14 the Tribunal as PW1. It is only appropriate to note that in the written statement filed by the second respondent he himself admitted the fact that it was he who was driving the vehicle at the time of the accident. In fact, the petitioner had deposed only to that effect while being cross-examined. While cross examined on behalf of the respondents 1 & 2 he had deposed to the effect that it was the second respondent who was driving the vehicle at the time of the accident. Despite such evidence let in by the claimant the third respondent did not adduce any evidence and evidently the third respondent had only relied only on Ext.B3 charge sheet. At this juncture the learned counsel for the third respondent submitted that though an application has been filed before the Tribunal for summoning the C.D. in respect of the aforesaid crime and to examine the investigating officer who conducted the investigation in the said crime the Tribunal had declined to allow the said application. We are at a loss of to understand what improvement to the case of the third respondent could have been made by examining the investigating officer in the aforesaid circumstances. It is M.A.C.A.2893 & 2947/2016 15 to be noted that despite cross-examining the petitioner the respondent Nos.1 and 2 could not elicit anything to discredit his version. 10. The learned counsel for the third respondent relied on the decision of the Hon'ble Apex Court in **Premshankar v. I.G. Of Police [2002(3) KLT 389 (SC)]** and a Division Bench judgment of this court in **Francis v. Jessy [2005 (1) KLJ 336]** . In fact, **Premshankar's** decision was relied on by the Division Bench while rendering the decision in **Francis** ' case (supra). It was held therein thus:- "................in the light of the established proposition of law that the judgment in the criminal case is admissible only to the extend of factum of charge and conviction and that the conclusions drawn are not binding vide Section 43 of the Evidence Act. It is a settled position that so far as the civil court is concerned, the judgment of the criminal court convicting a person of the crime is not proof of the fact as such. So also the judgment of acquittal is irrelevant in a civil suit based on the same cause of action. The decision of the Supreme Court in Premshankar v. I.G of Police, (2002 (3) KLT 389 (SC) restates the law in this regard. Thus, it is obvious that the evidence before the Tribunal M.A.C.A.2893 & 2947/2016 16 on the fact in issue was the oral evidence of the petitioner as PW1 made in tune with the admission of the factum of having driven the offending vehicle at the time of the accident by the second respondent, in the written statement. It is also to be noted that the same is the precise case of the first respondent, the owner of the vehicle. No evidence was let in by the third respondentinsurer before the Tribunal and obviously, the third respondent was relying only on Ext.B3 charge sheet. The decision in **Premshankar** 's case as also the decision **Francis** ' case (supra) were relied on by the third respondent in a bid to sustain the finding of the Tribunal regarding the negligence of the fourth respondent relying on Ext.B3 charge sheet. We have already found that the decision of a criminal court will not be binding or conclusive and would be only relevant while considering a claim for compensation filed under the provisions of the M.V.Act. The sum and substance of the decisions referred (supra) relied on by the learned counsel for the third respondent is also virtually to the said effect. But at the same time, we have held that when the Tribunal looks into M.A.C.A.2893 & 2947/2016 17 the charge sheet in a crime registered in connection with a case for the purpose of deciding the question of negligence and treat it as a sufficient prima facie evidence when the judgment in the case arising from the final report is also available before the Tribunal i.e., a relevant document and its relevancy cannot be effaced by the existence of charge sheet. In that context, it is also to be noted that the words 'sufficient prima facie evidence' itself would reveal that it is capable of being rebutted. In fact, that position is also made clear in **Pazhaniammal** 's case (supra). There can be no doubt with respect to the position that in a case where any particular document is marked, the said marked document can be relied only by any of the parties to the extent it is legally permissible. Therefore, it is evident that the rebuttal evidence was virtually available before the Tribunal in the form of the judgment and the oral evidence of the petitioner as PW1. In such circumstances, the Tribunal ought to have properly considered all such aspects. Taking into account all those aspects, we are of the considered view that the Tribunal had committed error which warrants an M.A.C.A.2893 & 2947/2016 18 appellate interference to set it right. The Tribunal ought to have relied on Ext.B3 charge sheet alone to decide the issue of negligence in such circumstances expatiated above in the light of Ext.B1 judgment. In such circumstances, finding of negligence on the part of the fourth respondent is vacated and in the light of the evidence available before the Tribunal i.e., the evidence of PW1 which is consistent with the admission made by the second respondent in his written statement and also taking note of the fact that Ext.B1 will not go in conflict with the said case, we hold that it had occurred due to the negligence of the second respondent. We are of the view that finding of the Tribunal that the claimant is entitled to compensation as the accident had occurred due to the negligence of the driver of the offending vehicle has to be sustained. We have already noted that the accident and the insurance coverage of the offending vehicle are not in dispute. There is no dispute regarding possession of a valid driving licence by the second respondent at the time of the accident. In such circumstances, since the offending vehicle was having a valid insurance coverage M.A.C.A.2893 & 2947/2016 19 and there was no violation of conditions of policy, the third respondent is liable to indemnify the first respondent, insured-owner of the vehicle. In such circumstances, the findings of the Tribunal that the third respondent is not liable to indemnify the first respondent and consequently, the right to recover the awarded amount from the first respondent granted to the third respondent are vacated. It is held that the third respondent is liable to indemnify the first respondent, insured-owner of the offending vehicle. In such circumstances, the appellant in the former appeal is entitled to succeed. Consequently, it is allowed as above. 11. We will now consider the claim for enhancement of compensation made by the petitioner in the latter appeal viz., M.A.C.A.No.2947/2016. The learned counsel for the petitioner contended that the compensation granted by the Tribunal under the heads 'permanent disability', 'loss of amenities' etc. are on the lower side. It is submitted that a perusal of Ext.A4 discharge summary would reveal the fact that the petitioner had sustained APC type II pelvic fracture with SI joint disruption and M.A.C.A.2893 & 2947/2016 20 was also having chronic hip pain. SI joint screw fixation was also done. He had been an inpatient for a period of 120 days. Having heard the learned senior counsel for the appellant-petitioner and the learned counsel for the respondents, we are of the view that there is some substance in the contention of the petitioner that the compensation granted under the head 'permanent disability' is inadequate inasmuch as the monthly income was not properly fixed by the Tribunal. Obviously, the Tribunal had fixed the monthly income at Rs.3,500/notionally. The petitioner was then aged 50 years. True that when the appellant had failed to establish his averments taken up in the claim petition regarding occupation and income. However, taking into account the fact that the accident had occurred on 18.8.2008 and also bearing in mind the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [ **(2011) 13 SCC 236]** , we are are of the view that it would only be just and proper to fix the monthly income of the appellant as Rs.5,500/-, for calculation purpose. On re-assessing the M.A.C.A.2893 & 2947/2016 21 compensation under the the head 'permanent disability' with substitution of the monthly income, the appellant would be entitled to get an amount of Rs.77,220/(5500x12x13x9/100). After deducting Rs.49,140/- already granted by the Tribunal, the petitioner is entitled to get Rs.28,080/- additionally. It is granted. The Tribunal took 12 months as the period of loss of earning. Retaining the said period and computing the compensation payable based on the re-fixed monthly income, the appellant would be entitled to get an amount of Rs.24,000/- (5500x1242000) additionally. Taking note of the nature of the injuries sustained by the appellant and the period of convalescence, it is certain that the appellant might have been deprived the enjoyment of life during the said period. In such circumstances, we are inclined to grant an amount of Rs.10,000/- additionally toward loss of amenities. Taking note of the nature of the injuries, we are inclined to grant Rs.500/- more towards damage to clothing. At the same time, on going through the schedule of compensation given in the impugned award, it is evident that the Tribunal had committed an error in M.A.C.A.2893 & 2947/2016 22 granting Rs.30,000/- towards loss of earning power after granting Rs.49,140/- towards compensation for permanent disability. Granting compensation under both the said heads is impermissible. Since the appellant had sustained permanent disability and there is nothing on record to establish his averments regarding avocation, it would not be possible to assess the loss of earning capacity. In such circumstances, we are of the view that the compensation paid to the appellant under the head 'permanent disability' can be maintained. We are of the view that the amount granted by the Tribunal towards mental agony viz., Rs.15,000/- also has to be deducted. In that context, it is to be noted that the appellant was granted an amount of Rs.40,000/- towards pain and suffering. The term 'pain' relates to physical aspect and 'suffering' relates to the mental agonies. In such circumstances, the said amount granted by the Tribunal has to be deducted. By virtue of the additional compensation granted by us, the appellant is entitled to get a total amount of Rs.62,580/-. But in view of our findings, an amount of Rs.45,000/- has to be deducted from Rs.62,580/-. On such deduction, the M.A.C.A.2893 & 2947/2016 23 appellant would be entitled to get an additional sum of Rs.17,580/- which is rounded off to Rs.17,600/-. Hence, the latter appeal is disposed of with a direction to the third respondent to deposit an amount of Rs.17,600/- with interest at the rate of 8% from the date of the petition till realisation within two months from the date of receipt of a copy of this judgment. The third respondent shall deposit the amount awarded by the Tribunal along with interest thereon based on our finding that the third respondent is liable to indemnify the first respondent. There will be no order as to costs in both the appeals. **Sd/-** **(JUDGE)** ## **Sd/-** ## **K.P.JYOTHINDRANATH (JUDGE)** ## **spc/shg**