Sai Prasad s/o Chellappan Pillai v. A.V. Sivaprasad, Hari Prasad and The New India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 17TH DAY OF FEBRUARY 2020 / 28TH MAGHA, 1941** ## **MACA.No.1040 OF 2006** **AGAINST THE AWARD IN OP(MV)No.3375/1997 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/PETITIONER IN THE TRIBUNAL:** **SAI PRASAD S/O.CHELLAPPAN PILLA, PRASANTHI NILAYAM, PRASANTHI NAGAR, MANIMALA ROAD, EDAPPALLY P.O., ERNAKULAM DISTRICT.** **BY ADV. SRI.K.A.SEBASTIAN** ## **RESPONDENTS/RESPONDENTS IN THE TRIBUNAL:** |**1**|**A.V.SIVAPRASAD**| |---|---| ||**A.V. NILAYAM,**| ||**PRASANTHI NAGAR, EDAPPALLY P.O.,**| ||**COCHIN-21.**| |**2**|**HARI PRASAD**| ||**A.V. NILAYAM,**| ||**PRASANTHI NAGAR, EDAPPALLY P.O.,**| ||**COCHIN-21.**| |**3**|**THE NEW INDIA ASSURANCE CO. LTD.**| ||**RAVIPURAM.**| ||**R3 BY ADV. SRI.A.C.DEVY**| ||**R1 & R2 BY ADV. SRI.R.DIVAKARAN**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A. No.1040/06 -:2:- ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.3375 of 1997 on the file of the Motor Accidents Claims Tribunal, Ernakulam, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, alleged to have occurred on 07.07.1997, while he was travelling as a pillion rider on a motorcycle bearing registration No.KL-7/F-8915, owned by the 1[st] respondent, ridden by the 2[nd] respondent and insured with the 3[rd] respondent. Going by the averments in the claim petition, at the place of accident, the motorcycle hit on the concrete median. The appellant fell down and sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 2[nd] respondent rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.3,00,000/- under various heads. 2. Before the Tribunal, respondents 1 and 2 did not appear. The 3[rd] respondent insurer filed written statement contending that the appellant himself was riding the motorcycle and it was a 'self accident'. One Ganesh had taken the appellant M.A.C.A. No.1040/06 -:3:- to the hospital, who is not cited as witness in the charge sheet. The police charge sheeted the 2[nd] respondent only to help the appellant. Respondents 1 and 2 are the direct brothers of the claimant. The claim petition and police charge are the result of collusion among the appellant, respondents 1 and 2 and the police. 3. Before the Tribunal, Exts.A1 to A6 were marked on the side of the appellant and he was examined as PW1. The treatment records was marked as Ext.X1. None of the respondents have chosen to adduce any oral or documentary evidence. 4. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the appellant himself was riding the motorcycle at the time of accident. The Tribunal noted that the appellant has not chosen to produce the discharge summary issued from the hospital for obvious reasons. Merely because the police has charge sheeted the 2[nd] respondent, the aforesaid circumstances cannot be ignored. Though the Tribunal noticed that the appellant sustained severe injuries, since the conclusion of the Tribunal is that the accident M.A.C.A. No.1040/06 -:4:- in question is a 'self accident', the Tribunal dismissed the claim petition. Feeling aggrieved by the award passed by the Tribunal, the appellant/claimant is before this Court in this appeal. 5. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 3[rd] respondent insurer. Despite service of notice, none appears for the respondents 1 and 2, who are none other than the brothers of the appellant. 6. The issue that arises for consideration in this appeal is as to whether the award passed by the Tribunal whereby the claim petition stands dismissed for the reasons stated therein can be sustained in law. 7. In **Venugopala Panicker v. Unnikrishna Panicker and others [2015 (2) KHC 621]** , a Division Bench of this Court held that standard of proof required to prove negligence in a claim petition is different from the standard of proof required in a criminal case. In a claim petition before the Tribunal, the standard of proof is much below than what is required in a criminal case as well as in a civil case. Paragraph 18 of the said decision reads thus; M.A.C.A. No.1040/06 -:5:- “18. The Apex Court as well as this Court has held in umpteen number of cases that, the standard of proof required to prove negligence in a claims petition filed under Section 166 of the Motor Vehicles Act, 1988 is different from the standard of proof required in a criminal case. In **Sherin J. Thankom v. Thankom and others (2014 (3) KLT 44)** a Division Bench of this Court, to which one among us (Anil K. Narendran, J.) was a party, held that, in deciding matters arising out of accident cases the Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a claim before the Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. Paragraphs 14 and 15 of the judgment read thus; “ **14.** In Kusum Lata and others v. Satbir and others (2011 (3) SCC 646) the Apex Court held as follows; It is well known that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. Later, in Parameshwari v. Amir Chand and others (2011 (11) SCC 635) the Apex Court reiterated that, in a road accident claim, the strict principles of proof in a criminal case are not attracted. In Parameshwari's case (supra), the Apex Court had taken note of the observation made in its earlier judgment in Bimla Devi and others v. Himachal Road Transport Corporation and others M.A.C.A. No.1040/06 -:6:- (2009 (13) SCC 530) that, the claimants were merely to establish their case on the touchstone of preponderance of probability and that standard of proof beyond reasonable doubt could not have been applied. **15.** Prima facie we find that the reasoning given by the Tribunal in the impugned common award is in conflict with the principle laid down in the judgments of the Apex Court referred to above. In deciding matters arising out of accident cases the Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a claim before the Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive at or decide things necessary to be decided for awarding compensation. In such circumstances, we hold that the reasoning given by Tribunal in the impugned common award, in order to reject the claim petitions filed by the appellants are unsustainable and the said common award is liable to be set aside in these appeals.” ## 8. In **N.K.V. Bros. (P) Ltd v. Karumai Ammal [(1980) 3** **SCC 457]** , the Apex Court held that, in accident cases, the Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. It was held M.A.C.A. No.1040/06 -:7:- that save in pain cases, culpability must be inferred from the circumstances, where it is fairly reasonable and that, the Court should not succumb to niceties, technicalities and mystic maybes. 9. In **Sunita v. Rajasthan State Road Transport Corporation [AIR 2019 SC 994]** , the Apex Court held that strict principles of rules in a criminal case will not be applicable in a claim for compensation under Section 166 of the Motor Vehicles Act, 1988. The standard to be followed in such a case is one of preponderance of probability rather than one of proof beyond reasonable doubt. There is nothing in the Motor Vehicles Act to preclude citing of witness in a motor accident claim, who has not been named in the list of witnesses in the criminal case. What is essential is that the opposite party should get a fair opportunity to cross examine the concerned witness. Once that is done, it will not be open to them to complain about any prejudice caused to them. If there was any doubt to be cast on the veracity of witness, the same should have come out in cross examination. 10. The document marked as Ext.A1 is the First M.A.C.A. No.1040/06 -:8:- Information Report in Crime No.1272 of 1997 of City Traffic Police Station registered on 08.07.1997 in connection with the motor accident in question. 11. In **New India Assurance Company Ltd. v. Pazhaniammal and others [2011 (3) KHC 595]** a Division Bench of this Court held that as a general rule, 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 police charge sheet does not satisfy their judicial conscience, Tribunals can reject it and can call upon the parties to adduce oral evidence to establish the alleged negligence. Paragraphs 7 and 8 of the judgment read thus: “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 over worked Tribunal spends its time on unnecessary oral evidence of negligence. We would certainly not want the Tribunals to be M.A.C.A. No.1040/06 -:9:- 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 S.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 under S.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 M.A.C.A. No.1040/06 ## -:10:- 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.” ## 12. In **Shajahan U.S. v. Sundaresh G. Pai and another** **[2019 (3) KHC 412]** , this Court held that, in a proceeding under Section 166 of the Motor Vehicles Act, it is not necessary for the claimant to plead and proof the manner in which the accident took place, for sustaining the claim for compensation. In terms of the amended provisions, contained in Section 166 of the Motor Vehicles Act, the Tribunal is empowered to treat the information received under Section 158 of the Act as an application for compensation under the Act and to grant compensation to the victims on that basis. In other words, the claim petition filed under the Act is not an adversarial lis in its traditional sense, but only a proceedings in terms of, and regulated by the provisions of the Act, which is a complete code M.A.C.A. No.1040/06 -:11:- by itself. The approach of the Tribunal in dealing with the application for compensation under Section 166 of the Act shall be with a view to discover the true facts, namely, whether there was a motor accident and also whether the accident occurred on account of the negligence of the driver of the vehicle, for it is the obligation of the Tribunal in terms of the Act to give compensation to the victims of motor accidents, notwithstanding whether there is even an application for the said purpose. If materials available on record are not sufficient for the Tribunal to discover the true facts, the Tribunal cannot stop the proceedings there, but shall make an endevour to discover the facts by calling for additional materials from parties. 13. During the course of arguments, the learned counsel for the appellant has made available for perusal of this Court a duplicate copy of the driving licence bearing No.7/2916/1989 dated 10.06.2015 issued to the appellant, whereby he is authorised to ride motorcycle with gear from 29.09.1989 and light motor vehicle from 29.09.1989 and the validity of the said licence is renewed from 27.05.2015 to 26.05.2020. The said licence is issued by the Licensing Authority, Ernakulam. M.A.C.A. No.1040/06 -:12:- 14. Having considered the submissions made by the learned counsel on both sides, this court finds that the appellant, who sustained serious injuries can be granted an opportunity to prove the alleged accident, as stated in the claim petition, by adducing additional evidence, both oral and documentary. 15. In the result, this appeal is disposed of by setting aside the award passed by the Tribunal in O.P.(MV) No.3375 of 1997 and remanding the matter to the Tribunal for fresh consideration. The Tribunal shall reconsider the matter after affording both sides an opportunity to adduce further evidence. 16. Since the claim petition is of the year 1997, the Tribunal shall dispose of the same, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of this judgment. Both sides shall appear before the Tribunal on **18.03.2020** . Registry shall immediately return LCR to the Tribunal. ## **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** vps