M.V. Ashraff v. Mohammad K.V., Rajendran and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930** **MACA.No. 2074 of 2008()** **-------------------------------------OPMV.857/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR** **....................** ## **APPELLANT(S): APPELLANT/PETITIONER** **-----------------------------------------------------------** **M.V.ASHRAFF, AGED 34 YEARS, S/O.SAIDU, MOOLAYIL VALAPPIL HOUSE, P.O.PONNANI, MALAPPURAM DISTRICT.** **BY ADV. SRI.C.CHANDRASEKHARAN** ## **RESPONDENT(S): RESPONDENTS** **-----------------------------------------------** **1. MOHAMMAD K.V., S/O.HASSANKUTTI HAJI, FATHIMA MANZIL, P.O.AYILAKKAD, EDAPPAL, MALAPPURAM DISTRICT.** **2. RAJENDRAN, S/O.BALAN, PALLIYALIL HOUSE, KOLALABHU, P.O.EDAPPAL, MALAPPURAM DISTRICT.** **3. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, WESTERN WING, AMBADI BUILDING, PONNANI, MALAPPURAM DISTRICT.** **ADV. SRI.P.JAYASANKAR FOR R3** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **J.B. KOSHY & THOMAS P.JOSEPH, JJ.** = = = = = = = = = = = = = = = = = = = = = = = = = = **M.A.C.A. No.2074 of 2008** = = = = = = = = = = = = = = = = = = = = = = = = = = = **Dated this the 5[th] day of December, 2008** **J U D G M E N T** ---------------------- ## **Thomas P. Joseph, J.** Dismissal of the application for compensation is under challenge in this appeal. 2. Heard both sides. Perused the records. 3. Appellant filed O.P.(MV) No.857 of 2006 in the Motor Accidents Claims Tribunal, Tirur (for short, “Tribunal”) claiming compensation of Rs.2,03,500/-. He claimed that on 24.4.2004 at about 8.30 p.m. while he was standing near lorry bearing Reg. No.KL10/B-2007 which was loaded with rice bags, second respondent, its driver suddenly took off that vehicle without tying the rice bags and one of the rice bags fell on the appellant resulting in fracture of neck bone. He was taken to Arifa hospital wherefrom he was referred to Metropolitan hospital, Thrissur. He underwent inpatient treatment in that hospital till 5.5.2004. Appellant alleged that the accident occurred due to the rash and negligent driving of the said lorry by the second respondent. Respondents 1 and 3 are the owner and insurer respectively, of the said lorry. Respondents 1 and 2 remained ex parte before the Tribunal. Third respondent while admitting insurance ## **M.A.C.A. No.2074 of 2008** ## **-: 2 :-** coverage for the offending vehicle, denied that appellant suffered injuries in any road traffic accident. Version regarding accident and negligence attributed on the second respondent was also denied. Appellant gave evidence as P.W.1 and proved Exhibits A1 to A9. Tribunal held that appellant did not prove that he suffered injury in the accident involving the offending vehicle and consequently dismissed the application. It is contended by the learned counsel for appellant that finding of the Tribunal cannot be sustained. Counsel for third respondent supported the finding. 4. Since third respondent who was permitted to take all defences available on behalf of the insured under Section 170 of the Motor Vehicles Act denied that appellant suffered injury by the use of the vehicle referred in the application, appellant was bound to prove the same to the satisfaction of the Tribunal. 5. Appellant as P.W.1 stated that the accident occurred as pleaded by him. In the evidence he stated that he was going along the side of the offending vehicle and when that vehicle was abruptly taken off by the second respondent, a rice bag fell on him. He claimed that he underwent inpatient treatment at Metropolitan hospital for 11 days and during that time, police did not record his statement though he had told the medical officer that he sustained injury in a road ## **M.A.C.A. No.2074 of 2008** ## **-: 3 :-** traffic accident. After a few days he preferred a complaint to the Superintendent of Police, Malappuram and based on that complaint, case was registered. Exhibit A1 is the photocopy of the FIR for offences punishable under Section 279 and 338 IPC registered on 24.5.2004. Exhibit A2 is the copy of the scene mahazar dated 25.5.2004. In Exhibit A2, place of alleged incident is stated as the Panchayat road. Exhibit A3 is the true copy of the relevant portion of the charge sheet prepared by the police on 9.6.2004 for offences punishable under Sections 279 and 338 of IPC and Sections 134(b) and 187 of the Motor Vehicles Act. In Exhibit A3, accident spot is stated as 75 cms east of eastern tar end of the Panchayat road. It is also stated in Exhibit A3 that appellant sustained injury due to fall of rice bag from the offending vehicle when appellant was walking along the side of that lorry. It is also alleged that the second respondent did not inform the police about the accident within 24 hours. Exhibit A4 is the copy of wound certificate issued from Metropolitan hospital, Thrissur. Appellant was examined in that hospital on 24.4.2004 at 10.45 p.m., history being alleged fall of sack from height. Exhibit A5 is the copy of complaint dated 18.5.2004 made to the Superintendent of Police, Malappuram. In Exhibit A5, it is stated that appellant had parked his lorry bearing Reg. No.KED-2692 for loading goods and was ## **M.A.C.A. No.2074 of 2008** ## **-: 4 :-** standing out. At that time, rice bags were being loaded in the offending vehicle. Thereafter driver of that vehicle, without tying the load of rice bags took off the lorry and one of the rice bags fell on the appellant who was proceeding to take his lorry (to load rice bags). The exact place of occurrence, whether it is the compound of the company or road is not specifically stated in Exhibit A5. Exhibit A6 is the discharge summary showing inpatient treatment of the appellant from 24.4.2004 to 5.5.2004. There, the history of accident is stated as “fall of heavy weight on the back today”. Examination of X-ray revealed fracture on T12. Exhibit A9 is the disability certificate issued by the Medical Board attached to the Government Hospital, Manjeri. There, it is stated that there was comminuted fracture of T12 with posterior displacement of fragment. None of the respondents adduced contra evidence. We are left with the above evidence to decide whether the appellant sustained injury in the course of use of motor vehicle. 6. It is seen that Exhibits A1 to A4 are photocopies of relevant documents certified as true copy by the counsel for the appellant. Exhibits A1 to A4 are not certified copies prepared from the original. So far as certified copies are concerned, there is a presumption available under Section 79 of the Evidence Act. That presumption is not available to a copy certified by the counsel as true copy. At the ## **M.A.C.A. No.2074 of 2008** ## **-: 5 :-** same time we also note that Exhibits A2 to A4 were marked before the Tribunal without any objection. It has been held time and again that strict rules of the Evidence Act are not applicable to proceedings before the Tribunal. Therefore there is no reason why we should discard Exhibits A1 to A4. We make it clear that in appropriate cases it is open to the Tribunal if it feels doubt about the genuineness of the photocopies produced before it, to direct the parties to produce certified copies. 7. It is pointed out by counsel for third respondent that in Exhibit A1, place of alleged incident is stated as the compound of the company whereas in Exhibits A2 and A3, it is the Panchayat road. Case was registered on the basis of the complaint (Exhibit A5) preferred by the appellant to the Superintendent of Police, Malappuram on 18.5.2004. When the discrepancy regarding place of occurrence was pointed out to the appellant when he was in the box, he stated that some of his friends preferred that complaint though he signed the same. It is to be borne in mind that appellant sustained injury on 24.4.2004 and underwent inpatient treatment in the Metropolitan hospital, Thrissur till 5.5.2004. Exhibit A5 is dated 18.5.2004. True, there is some delay. At the same time it has also to be noted that the possibility of the appellant convalescing at home on ## **M.A.C.A. No.2074 of 2008** ## **-: 6 :-** account of the serious injury on the neck cannot be ruled out. Therefore there is the possibility of the friends of the appellant helping him in preparing Exhibit A5, complaint. We also note from Exhibit A4 that appellant was admitted in the Metropolitan hospital, Thrissur on 24.4.2004 with fracture of neck bone. Though involvement of the offending vehicle is not stated in Exhibit A4, appellant stated that he suffered injury due to falling of sack from height. That statement in Exhibit A4 to a great extent corroborates the version of the appellant. Third respondent has no case that appellant suffered injury in any other manner whatsoever. Third respondent merely denied involvement of the motor vehicle in the incident. Third respondent also did not adduce any contra evidence. 8. Exhibit A3 shows that police investigated the case and came to the conclusion that appellant suffered injury as claimed by him with the involvement of the offending vehicle and rashness and negligence of its driver, second respondent. First information report and final report are public documents and the same could be proved even without examining the officers who prepared the same. 9. It has been held in **Ramappa v. Bojappa** (AIR 1963 SC 1633) that certified copy of the public document is admissible in evidence without being proved by calling any witness and when no ## **M.A.C.A. No.2074 of 2008** ## **-: 7 :-** objection is raised to the mode of its proof, same could be acted upon. We have stated that marking of documents was not objected to by the third respondent before the Tribunal. Third respondent also did not take any steps to summon the officer who investigated the case and reached the conclusion in Exhibit A3, to show that his conclusion is wrong. Thus, Exhibits A1 to A5 corroborate the version of the appellant that he suffered injury in the manner claimed by him. 10. According to the appellant and as stated by him which we have accepted, rice bags were not properly tied and one of the rice bags fell on him when the vehicle was moved abruptly. Even if the vehicle was not moved but one of the rice bags fell on the appellant, that amounted to “use of motor vehicle”. A Division Bench of this Court in **M.& G. F. (India) Ltd. v. Mary Mony** (1990 (2) KLT 971) observed thus: “The word “use” in S.110(1) of the Act has been used in a wider sense. It covers all engagements of the motor vehicle, including driving, parking, keeping stationary, repairing, leaving unattended on the road for any other purposes. In the case when a a vehicle is being driven and is stopped or parked for being repaired it cannot be said that the vehicle is not ## **M.A.C.A. No.2074 of 2008** ## **-: 8 :-** being used. If the vehicle is parked in a dangerous slope, and the accident is cause, S.110 of the Act would be attracted. When by the opening of the door of a motor vehicle parked on a public road an accident arises, giving rise to a claim for compensation, it could not be said that the accident did not arise out of the use of the motor vehicle concerned. The words “use of the vehicle” in Section 110(1) of the Act are wide enough to comprehend such cases also”. In this case there is the added fact that according to the appellant second respondent had abruptly taken off the vehicle with rice bags un-tided and that resulted in one of the rice bags falling on him. A similar case was considered by a Division Bench of this Court in **New India Assurance Co. Ltd. v. Lakshmi** (2000 (3) KLT 80). In that case the victim concerned sustained injury on account of a fertilizer bag falling upon him in the process of unloading it from a stationary lorry. It was held that the accident arose out of the use of motor vehicle and jurisdiction of the Tribunal under Section 165 of the Motor Vehicles Act is attracted. That decision squarely applies to the facts of this case. 11. It is not as if the appellant was bound to prove his case ## **M.A.C.A. No.2074 of 2008** ## **-: 9 :-** conclusively. What is required is only preponderance of probability. We have considered the entire evidence and are persuaded to think that preponderance of probability is in favour of the case pleaded by the appellant. On the evidence, Tribunal ought to have found that appellant sustained injury in the course of use of the offending lorry and that accident occurred due to the rashness and negligence of the second respondent. In reversal of the finding entered by the Tribunal, we hold so. 12. On the amount of compensation payable to the appellant, Tribunal has not entered any finding and as such a remand of the case has become unavoidable. This is not a case where the application was rejected at the threshold on account of it not being maintainable due to any bar of jurisdiction or other cause of like nature. Tribunal had framed issues among other things whether appellant is entitled to get compensation and if so, what is the quantum? In such a situation Tribunal was obliged to answer all the issues raised notwithstanding that the issue regarding accident was decided against the appellant. If the Tribunal had answered the issue regarding compensation payable to the appellant, we would have been able to dispose of the application finally. In the facts and circumstances of the case we think it appropriate to remand the case to the Tribunal for decision on issue ## **M.A.C.A. No.2074 of 2008** ## **-: 10 :-** Nos.2 and 3 raised by it. Resultantly, this appeal is allowed in the following lines: (i) Dismissal of the application is set aside. (ii) Finding of Tribunal on issue No.1 is set aside and we hold that the appellant sustained injury in the course of use of the motor vehicle and that the accident occurred due to the rashness and negligence of the second respondent. (ii) Case is remanded to the Tribunal with a direction to decide issue Nos.2 and 3 after giving both sides opportunity to adduce evidence on those issues. Parties shall appear before the Motor Accidents Claims Tribunal, Tirur on 30.1.2009. ## **J.B. KOSHY, JUDGE.** ## **THOMAS P.JOSEPH, JUDGE.** vsv ## **M.A.C.A. No.2074 of 2008** **-: 11 :-**