IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 27TH DAY OF JUNE 2017/6TH ASHADHA, 1939
MACA.No. 693 of 2008 ( ) ------------------------AGAINST THE AWARD IN OP(MV)1908/1999 of PRL.M.A.C.T., KOZHIKODE DATED 19-03-2007
APPELLANT/PETITIONER:
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LIJO MATHEW, AGED 21 YEARS, S/O A.S.MATHEW, ETTUMANNOOR HOUSE, KANJIRADAKKOM POST, ANANDASRAMAM(VIA), KASARGOD DISTRICT, NOW RESIDING AT PALAKKAT HOUSE, KUPPAYAKODE POST, KODENCHERRY VIA, KOZHIKODE.
BY ADVS.SRI.R.SUDHISH SMT.M.MANJU
RESPONDENTS/RESPONDENTS:
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1. JOSHY AUGUSTINE (EXPIRED) S/O AUGUSTHY, KAPPIYARAMALAYIL HOUSE, PUDUPPADY POST, THAMARASSERY VIA, KOZHIKODE.
2. THE UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, VELIMANNA BUILDINGS, THAMARASSERY-673357.
Addl. 3. PHILOMINA JOSHY, AGED 45 YEARS, W/O.JOSHY AUGUSTINE, KAPPIYARAMALAYIL HOUSE, PUDUPPADY POST, THAMARASSERY VIA, KOZHIKODE - 673 586.
Addl. 4. MANU JOSHI, AGED 23 YEARS,
S/O.LATE JOSHY AUGUSTINE, KAPPIYARAMALAYIL HOUSE, PUDUPPADY POST, THAMARASSERY VIA, KOZHIKODE - 673 586.
Addl. 5. CLINT JOSHI, AGED 20 YEARS,
S/O.LATE JOSHY AUGUSTINE, KAPPIYARAMALAYIL HOUSE, PUDUPPADY POST, THAMARASSERY VIA, KOZHIKODE - 673 586.
MACA.No. 693 of 2008 2
(THE LEGAL HEIRS OF THE DECEASED 1ST RESPONDENT IS IMPLEADED AS ADDITIONAL R3 TO R5 AS PER ORDER DATED 24.2.2016 IN I.A.NO.1644/2012 IN MACA.693/2008)
R2 BY ADV. SRI.S.ARUN RAJ
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **C.T.RAVIKUMAR & ANIL K. NARENDRAN, JJ.**
------------------------------M.A.C.A.No.693 of 2008 -------------------------------Dated 27[th] June, 2017
## **JUDGMENT**
## **Ravikumar, J.**
The appellant/claimant sustained injuries in a motor vehicle accident occurred on 24.7.1999 while he was returning home after school hours. He was pedalling a bicycle. In the claim petition it was averred that the Jeep bearing Reg.No.KL-12-1762 came from the opposite direction and hit against his bicycle and consequently, he sustained injuries. An amount of ₹2,00,000/was claimed as compensation. The Tribunal after considering the evidence consisting only of the documentary evidence on the side of the appellant viz., Exts.A1 to A5 arrived at the conclusion that the appellant had failed to establish that the accident had occurred due to the negligence on the part of the first respondent, the owner-cum-driver of the alleged offending vehicle. Based on such conclusion the claim petition was dismissed. It is aggrieved by the dismissal of the said claim petition filed under Section 166 of the Motor Vehicles Act, as per judgment dated 19.3.2007 in O.P.(M.V)No.1908 of 1999 that the captioned appeal has been preferred.
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2. We have heard the learned counsel for the appellant and also the learned counsel appearing for the second respondent.
3. Pending this appeal the first respondent, the driver of the alleged offending vehicle died and consequently, his legal heirs were impleaded as additional respondents 3 to 5. While the learned counsel for the appellant contends that the Tribunal went wrong in dismissing the claim petition holding that the appellant had failed to establish the cause of the accident as the negligence from the part of the first respondent, the learned counsel appearing for the third respondent submitted that the Tribunal has rightly dismissed the claim petition as proof of negligence on the part of the driver of the alleged offending vehicle or its owner is _sine qua non_ for maintaining an application under Section 166 of the Motor Vehicles Act.
## 4. In the decision in **National Insurance Co. Ltd.** v.
**Sinitha (2011 (4) KLT 821 (SC))** the Hon'ble Apex Court held: `a person may be “responsible” for an act, yet he may not be “negligent”. Negligence is a factual issue and can only be established through cogent
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evidence'. There cannot be any doubt with respect to the position that in an application for compensation filed under Section 166 of the Motor Vehicles Act, it is incumbent on the claimant to prove negligence on the part of the driver/rider of the alleged vehicle or its owner to get compensated for the injuries or death caused in the motor vehicle accident. In **New India Assurance Co. Ltd.** v. **Pazhaniammal (2011 (3) KLT648)** a Division Bench of this Court held that as a general rule, production of police charge sheet is _prima facie_ sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. Bearing in mind the aforesaid decisions, we will consider the question whether the Tribunal went wrong in dismissing the claim petition.
5. As noticed hereinbefore, the claim petition was filed under Section 166 of the Motor Vehicles Act. In such circumstances, there can be no doubt that the appellant should have established negligence on the part of the first respondent, the driver of the alleged offending vehicle or its owner to get compensation. No oral evidence was adduced by both sides before the Tribunal and obviously no documentary evidence was adduced by the respondents. On the side of
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the appellant, the injured, Exts.A1 to A5 were got marked. Ext.A1 is the copy of FIR in Crime No.241 of 1999 of Thamarassery Police Station registered in connection with the accident in question. Ext.A2 is the scene mahazar prepared in the said crime. Exts.A3, A4 and A5 are respectively the wound certificate, photocopy of reference card and also the reference card. The question is whether the mere production of such documents would be sufficient to establish negligence. No doubt, mere production of documents like FIR registered in connection with a crime or a scene mahazar prepared in such crime cannot be taken as sufficient _prima facie_ evidence to prove negligence, in a claim petition filed under Section 166 of the Motor Vehicles Act. No oral evidence was adduced to prove the contents therein. Ext.A1 would at the best reveal the fact that in connection with a motor vehicle accident a crime was registered. But, the contents of the same cannot be taken as proved by its mere production. There is nothing on record which would reveal that the scene mahazar was prepared in the said crime based on the information furnished by an occurrence witness. As noticed hereinbefore, the appellant had not adduced any oral evidence before the Tribunal. In short, a scanning of the evidence in this case would reveal that the appellant had failed to establish that the accident in
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which he sustained the injuries was caused due to the negligence on the part of the first respondent, who was driving the alleged offending vehicle at the time of the accident. It is also to be noted that even _prima facie_ sufficient evidence in cases of this nature viz., the final report laid in terms of Section 173(2) of the Code of Criminal Procedure in the crime registered in connection with the accident was also not produced by the appellant. The claim petition was dismissed on 19.3.2004 and the appeal was filed in the year 2008. Though the appeal was filed in the year 2008 the appellant had not chosen to adduce any evidence at least to establish what exactly was the outcome of the investigation conducted in Crime No.241 of 1999 registered at Thamarassery Police Station. When that be the materials on record available, we do not find any reason to hold that the Tribunal committed an illegality or an error warranting appellate interference. Since the _sine qua non_ for getting compensation in a petition under Section 166 of the Motor Vehicles Act is production of proof to the effect that the injuries/death occurred due to the tortuous action of another and when it is evident that no such evidence was adduced by the appellant/claimant, the inevitable consequence is nothing but dismissal of such a claim petition. That alone was done by the Tribunal. We do
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not find any reason to interfere with the impugned judgment passed by the Tribunal dismissing the claim petition, in the aforesaid circumstances. The upshot of the discussion is that this appeal is liable to fail and accordingly, it is dismissed. There will be no order as to costs.
Sd/- **Judge**
**C.T.RAVIKUMAR**
Sd/- **ANIL K. NARENDRAN Judge**
TKS
