MACA No. 2575 of 2015

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 6TH DAY OF JULY 2017/15TH ASHADHA, 1939 MACA.No. 2575 of 2015 () ------------------------AGAINST THE AWARD IN OPMV 1146/2009 of MACT, IRINJALAKUDA DATED 24-03-2015 APPELLANT/PETITIONER IN THE O.P: ------------------------------------------------------- RAJESH, AGED 31 YEARS, S/O.SANKARAN, KARIYAPARAMBIL HOUSE, THRIKKUR DESOM AND VILLAGE, THRISSUR DISTRICT. BY ADVS.SRI.A.AHZAR SRI.P.T.AJITH RESPONDENTS/RESPONDENTS IN THE O.P.: ----------------------------------------------------------------1. GEORGE, S/O.FRANCIES, 8/351, KURISUVEETIL, CHERANELLORE, ERNAKULAM DISTRICT - 684 001 2. RAHUL, AGED 21 YEARS, S/O.RAVEENDRAN, RAHUL SADANAM, VALADY DESOM, NILAMPEROOR VILLAGE, ALAPPUZHA DISTRICT - 685 501 3. THE BRANCH MANAGER, THE NEW INDIA ASSURANCE COMPANY LTD., IIND FLOOR, YESORAM VICTORIA TOWERS, BANERJEE ROAD, KACHERIPPADY, ERNAKULAM - 684 003. R3 BY ADV. SRI.M.JACOB MURICKAN R BY ADV.SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ------------------------------------** ## **M.A.C.A.No.2575 of 2015** **----------------------------------Dated this the 6[th] day of July, 2017** ## **JUDGMENT** ## **Anil K. Narendran, J** This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Irinjalakuda dated 24.03.2015 in O.P. (MV)No.1146 of 2009, a claim petition filed by the appellant/ claimant under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained in a motor accident alleged to have occurred on 12.08.2009 while he was travelling as pillion rider in a motorcycle ridden by his first cousin, one Nibin. It was alleged that, at the place of accident, the motorcycle was hit by a truck bearing Reg.No.KL-7/G-7371, owned and driven by respondents 1 and 2 respectively and insured with the third respondent and that, the accident occurred due to the rash and negligent driving of the truck by the second respondent driver. In the claim petition, he claimed a total compensation of ₹6,00,000/- under different heads. 2. Before the Tribunal, the first and second respondents remained absent and they were set _ex-parte_ . The third respondent insurer of the lorry filed a written statement admitting the policy coverage. However, the insurer contended that the said truck was M.A.C.A.No.2575 of 2015 2 never involved in any accident as alleged in the claim petition. As per the First Information Statement given by the rider of the motorcycle bearing Reg.No.KL-8/M-5661, the accident was one involving a motor car bearing Reg.No.KL-8/B-4356. However, in the final report, the offending vehicle was changed as a lorry bearing Reg.No.KL-7/G-7371. The third respondent insurer has also raised various contentions as to the claim made by the appellant/claimant, by disputing the nature of injuries, treatment, etc. 3. Before the Tribunal, PWs.1 to 6 were examined and Exts.A1 to A12 were marked on the side of the appellant/claimant. On the side of the respondents, Exts.B1 to B3 were marked. The respondents have not chosen to adduce any oral evidence. 4. After considering the evidence and materials on record, the Tribunal assessed a total compensation of 99,370/- under₹ different heads. However, in the absence of any evidence to prove that the accident had occurred due to the rash and negligent driving of the second respondent driver of the lorry, the Tribunal dismissed the claim petition, since no liability can be fastened upon the third respondent insurer or the first respondent owner. 5. Feeling aggrieved by the award passed by the Tribunal, dismissing the claim petition filed under Section 166 of the Motor M.A.C.A.No.2575 of 2015 3 Vehicles Act, the appellant/claimant is before this Court in this appeal. 6. We heard the arguments of the learned counsel for the appellant/claimant and also the learned counsel for the third respondent insurer. 7. The sole issue that arises for consideration in this appeal is as to whether the award passed by the Tribunal dismissing the claim petition filed by the appellant/claimant warrants interference by this Court in this appeal. 8. In N **ew India Assurance Co. Ltd., v. Pazhaniammal and others (2011 (3) KHC 595)** a Division Bench of this Court held that, 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. 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 M.A.C.A.No.2575 of 2015 4 sheet can be reckoned as sufficient evidence of negligence, in a claim under Section 166 of the Motor Vehicles Act. 9. In **Khadeeja and others v. Rushdi and another (2016 (3) KLT 400)** , a Division Bench of this Court in which one among us (Anil K. Narendran, J) was a member, held that in a claim under Section 166 of the Motor Vehicle Act, for fixing liability on the respondents, who are the owner, driver and insurer of the offending vehicle, it is imperative for the claimants to prove that the accident was caused by the negligence of the driver or the owner of that vehicle. Thus, negligence on the part of the driver or owner of the offending vehicle is a prime consideration in a claim under Section 166 of the Act. Therefore, where the pleadings and the evidence on record on the side of the claimant are absolutely silent on this crucial aspect of the matter, a claim under Section 166 of the Act cannot be sustained. 10. In the instant case, going by the averments in the claim petition filed under Section 166 of the Motor Vehicles Act, the appellant sustained injuries on 12.08.2009, while travelling in a motorcycle. At the place of accident, the motorcycle was hit by a truck bearing Reg.No.KL-7/G-7371 owned and driven by respondents 1 and 2 respectively and insured with the third M.A.C.A.No.2575 of 2015 5 respondent. Though, it was stated in the claim petition that, the accident occurred while the appellant was travelling as a pillion rider in a motorcycle, the registration number and other particulars of the said motorcycle were not disclosed in the said petition. However, as evident from Exts.A1 FIR registered by the Sub Inspector of Police, Irinjalakkuda, a document relied on by the appellant himself, the registration number of the said motorcycle is KL-8/M-5661. The said FIR was registered based on the FIS given by one Nibin (marked as Ext.B2), as per which, the accident occurred while the appellant was riding the said motorcycle with the said Nibin in the pillion. As per the statement given by the pillion rider, at the place of accident, while the appellant was attempting to overtake a car proceeding in front of the motorcycle, the car hit on the motorcycle and the appellant sustained injuries. 11. After conducting investigation, the Police filed Ext.A2 final report, wherein it was found that at the time of accident, Nibin was riding the motorcycle without a valid driving licence and the appellant has permitted him to do so. As per Ext.A2 final report, the offending vehicle is a lorry bearing Reg.No.KL-7/G-7371 owned and driven by respondents 1 and 2 respectively and insured with the third respondent, and not a motor car as stated by Nibin in Ext.B2 6 M.A.C.A.No.2575 of 2015 FIS, which forms part of Ext.A1 FIR, a document relied on by the appellant himself. 12. The document marked as Ext.A2 is not the entire final report with its enclosures, but only the face sheet of the final report. The statement of witnesses and other documents collected during investigation, in order to connect lorry bearing Reg.No.KL-7/G-7371 with the accident alleged to have occurred on 12.8.2009 are not placed on record. The appellant has also not chosen to examine the Investigating Officer, in order to prove that the conclusions made in Ext.A2 final report regarding involvement of the aforesaid lorry are based on real facts, since going by Ext.B2 FIS, the offending vehicle was a motor car. 13. As we have already noticed, the appellant has not disclosed in the claim petition, the registration number and other particulars of the motorcycle involved in the accident. However, as evident from Exts.A1 FIR, the registration number of the said motorcycle is KL-8/M-5661. The materials on record would show that, the registered owner of the said motorcycle is one “Rajesh K.S., S/o.K.N.Sankaran, Kariyaparambil House, P.O.Thrikkur, Ollur, Thrissur”, who is none other than the appellant himself. It is pertinent to note that, in the cause title of the claim petition, the M.A.C.A.No.2575 of 2015 7 name of the claimant is shown as “Rajesh” instead of “Rajesh K.S”. 14. In order to prove the alleged accident, the appellant was examined as PW1 and one Ittichan was examined as PW5. PW1 has not stated anything about the rider of the motorcycle, who was riding the said vehicle at the time of accident. No materials are on record to show that Ittichan, who was examined as PW5, was cited as an occurrence witness in the final report. For reasons best known to the appellant, the statement of witnesses and other documents collected during investigation, which form part of the final report, are not placed on record, instead only the face sheet of the final report has been produced and marked as Ext.A2. Further, Nibin, who gave Ext.B2 FIS was also not examined before the Tribunal. 15. As borne out from Ext.A2 final report, on investigation the Police found that, with a mala fide intention to get compensation by filing a claim against the third respondent insurer, false information was furnished at the time of registration of crime. It was also found that, at the time of accident, Nibin was riding the motorcycle without a valid license. Accordingly, he was charge sheeted in Ext.A2 final report for driving motorcycle without license and for furnishing false information, and the said report has already been forwarded to the concerned Magistrate Court for initiating M.A.C.A.No.2575 of 2015 8 proceedings against him under the Section 177 of the Indian Penal Code, 1860 as well. Since proceedings are contemplated under Section 177 of the Code for furnishing false information, we refrain ourselves from expressing anything further on the conduct of the appellant in approaching the Tribunal in O.P.(MV)No.1146 of 2009. 16. In **Dhananjay Sharma v. State of Haryana [(1995) 3 SCC 757]** the Apex Court held that filing of false affidavits or making false statement on oath in Courts aims at striking a blow at the Rule of Law and no Court can ignore such conduct, which has the tendency to shake public confidence in the judicial institutions, because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by anyone resorting to filing of false affidavits or giving of false statements and fabricating false evidence in a Court of law. 17. In **Muthu Karuppan v. Parithi Ilamvazhuthi [(2011) 5 SCC 496]** the Apex Court expressed the view that filing of a false affidavit should be effectively curbed with a strong hand. In **Sciemed Overseas Inc. v. BOC India Ltd. [(2016) 3 SCC 70]** the Apex Court observed that though the observation in Muthu Karuppan's case (supra) was made in the context of contempt of M.A.C.A.No.2575 of 2015 9 Court proceedings, the view expressed must be generally endorsed to preserve purity of judicial proceedings. 18. By the impugned award, in the absence of any evidence to prove that the accident had occurred due to the rash and negligent driving of the second respondent driver of the lorry, the Tribunal dismissed the claim petition, since no liability can be fastened upon the third respondent insurer or the first respondent owner. The said finding of the Tribunal is perfectly legal and proper, which warrants no interference in this appeal. In the result, the appeal fails and the same is accordingly dismissed. No order as to costs. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- ## **ANIL K. NARENDRAN, JUDGE** AV /True Copy/ P.A to Judge