MACA.No.1006 OF 2008(C) against the Award in OPMV 975/1997 dated 31-07-2007 of I Additional District Court & Additional Motor Accidents Claims Tribunal, Kollam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 17TH DAY OF SEPTEMBER 2020 / 26TH BHADRA, 1942** ## **MACA.No.1006 OF 2008(C)** **AGAINST THE AWARD IN OPMV 975/1997 DATED 31-07-2007 OF I ADDITIONAL DISTRICT COURT & ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/S:** **S.GOPALAKRISHNAN NORTH EAST, MANAPPALLY NORTH, THAZHAVA** **BY ADVS.** **SMT.ELIZABETH MATHAI IDICULLA SRI.MARTIN D.ALUMKARA SRI.MOHAN IDICULLA ABRAHAM SMT.PUSHPY B.MURICKEN** ## **RESPONDENT/S:** - **1 DR.S.JAGAN MOHAN ERUMATHUVELI, SHERTHALA PO.,, ALLEPPEY.** - **2 K.K.KALANJAYAN SMC-13 SHERTHALA PO. ALLEPPEY.** - **3 NEW INDIA ASSURANCE CO.LTD. REP. BY THE BRANCH MANAGER, EDATHIL BUILDING,, THOPPUMPADI, KOCHI.** **R1 BY ADV. SMT.M.MEENA JOHN R1 BY ADV. SRI.VIJU THOMAS** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MACA.No.1006 OF 2008** ..2.. ## **JUDGMENT** ## **Dated this the 17[th] day of September 2020** The appellant is the claimant in O.P.(M.V.) No.975 of 1997 on the file of the 1[st] Additional Motor Accidents Claims Tribunal, Kollam. 2. The appellant had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of a motor accident that took place on 25.08.1996. The parties are, for the sake of convenience, referred to as their status in the appeal. 3. It is the case of the appellant that, while he was traveling on a scooter bearing Registration No.KL-2/2034 ― on the Kollam Alappuzha National Highway, a car driven by the 2[nd] respondent came from the same direction and hit the scooter on its rear portion. The car was driven by the 2[nd] respondent in a rash and negligent manner. In the accident, the petitioner sustained serious ## **MACA.No.1006 OF 2008** **==> picture [17 x 9] intentionally omitted <==** injuries. He was treated as an inpatient for several days. The vehicle was owned by the 1[st] respondent and was insured with the 3[rd] respondent. The appellant claimed an amount of Rupees Two lakh as compensation. 4. Respondents 1 and 2 were set ex parte. 5. The 3[rd] respondent admitted the insurance policy and the fact of the accident. However, the 3[rd] respondent contended that accident occurred due to the rash and negligent driving of the appellant. According to the 3[rd] respondent, it was the appellant who hit the car on its rear portion. Therefore, the 3[rd] respondent was not liable to pay any amount as compensation. 6. The appellant and a witness were examined as PWs1 and 2 and Exhibits A-1 to A-15 were marked through them. Exhibit X-1 was marked as a court exhibit. The 3[rd] respondent did not adduce any evidence. 7. After considering the pleadings and materials on record, the Tribunal by the impugned Award dismissed ## **MACA.No.1006 OF 2008** **==> picture [18 x 9] intentionally omitted <==** the claim petition, holding that the appellant was not entitled to any amount as compensation. 8. It is assailing the said Award that this appeal is filed. 9. Heard Shri. Mohan Idiculla Abraham, the learned counsel appearing for the appellant and Shri. Viju Thomas, the learned counsel appearing for the 3[rd] respondent. Even though notice was served on respondents 1 and 2, there is no appearance for them. 10. The sole question that emerges for consideration in this appeal is whether there is an illegality or irregularity in the Award passed by the Tribunal. 11. The Tribunal dismissed the claim petition principally on the ground that the appellant had not produced any material to substantiate the findings of the Court, which tried the case pursuant to Exhibits A-1 FIR and A-2 charge sheet. The Tribunal held that, the burden ## **MACA.No.1006 OF 2008** ..5.. of proof was on the appellant to substantiate that there was negligence on the part of the 2[nd] respondent, who drove the car because the accident took place not in the manner pleaded in the claim petition. Moreover, the head light assembly of the scooter had got damaged, which proves that the scooter was the offending vehicle. 12. A Division Bench of this Court in **New India Assurance Company Ltd. v. Pazhaniammal** [2011 (3) KLT 648] has categorically laid down the law in paragraphs 7 and 8 as follows:- “7.In this context we feel it appropriate to refer to the practice adopted by many Tribunals in the State. Wherever a crime has been registered in respect of the accident and the investigation has culminated in the filing of a charge sheet by the police, such charge sheet is filed and the same is reckoned as sufficient to establish negligence on the part of the indictee. The practice has not received formal judicial approval and hence some Tribunals insist on oral evidence in support of negligence invariably. This consumes a lot of judicial time and the heavily ## **MACA.No.1006 OF 2008** ..6.. over worked Tribunal spends its time on unnecessary oral evidence of negligence. We would certainly not want the Tribunals to be prisoners of the conclusions of police officers. If the Tribunal finds it suspicious, it can insist for better evidence. **But 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 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 sheet can be reckoned as sufficient evidence of negligence in a claim** ## **MACA.No.1006 OF 2008** ..7.. **under Section 166 of the Motor Vehicles Act.** We mean to say that on production of such charge sheet the shifting of burden must take place. It is not as though we are not conscious of the dangers and pit falls involved in such an approach. But we feel that adoption and recognition of such practice would help to reduce the length of the long queue for justice before the Tribunals. The judicial recognition of the practice will help the Tribunals to ensure the optimum use of judicial time at their disposal for productive ventures. 8. We do not intend to say that collusive charge sheets need be accepted. 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. “ 13. It is seen that the appellant had produced Exhibit A-1 FIR and Exhibit A-2 charge sheet before the Tribunal. Exhibits A-1 and A-2 categorically establish ## **MACA.No.1006 OF 2008** ..8.. that it was the negligence on the part of the 2[nd] respondent, which was the root cause for the accident. There is no discussion in the Award to discredit the investigation held by the Police which led to filing of Exhibit A-2 charge sheet. In light of the ratio in **Pazhaniammal** (Supra), it was the duty of the Tribunal to have given reasons for disbelieving the version of the investigating agency. Moreover, the respondents have not given any contra evidence, as per the principle in **Pazhaniammal** (Supra), to discredit Exhibit A-2 charge sheet. 14. Furthermore, the appellant had mounted the box and testified that it was the 2[nd] respondent who drove the vehicle in a rash and negligent manner, which was the cause for the accident. The said evidence was also not discussed by the Tribunal. 15. In view of the production of Exhibits A-1 and A- 2, the Tribunal ought to have evaluated the same and **MACA.No.1006 OF 2008** **==> picture [18 x 9] intentionally omitted <==** then arrived at a conclusion whether the 2[nd] respondent was negligent in causing the accident in view of law laid down in **Pazhaniammal** (Supra). The Tribunal, if it wanted to peruse the judgment passed in S.T. No.1407 of 1996, which was registered pursuant to Exhibit A-2 charge sheet, ought to have afforded the appellant an opportunity to produce the judgment, though the same is unwarranted, especially when no contra-evidence was let in. Without making any such endeavour, the Tribunal has in a perfunctory manner, based on surmises and conjunctures dismissed the claim petition, which is improper and unsustainable in law. 16. In light of the above findings, I set aside the Award passed by the Tribunal and remit O.P.(M.V.) No.975 of 1997 back to the Tribunal for fresh consideration. Considering that the claim petition was filed in the year 1997, I direct the Tribunal to dispose of the case, as expeditiously as possible and at any rate within a period ## **MACA.No.1006 OF 2008** **==> picture [22 x 7] intentionally omitted <==** of four months from the date of appearance of the parties, after affording them an opportunity of adducing additional evidence, if they choose so. The parties are directed to appear before the Tribunal on 05.10.2020. **Sd/-** kkj **C.S.DIAS JUDGE**