SANTHA and SREELEKHA v. JOSE K.O and National Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 7TH DAY OF JULY 2016/16TH ASHADHA, 1938 MACA.No. 1011 of 2013 () ------------------------AGAINST THE AWARD IN OPMV 1286/2007 of MACT, IRINJALAKUDA DATED 18-01-2013 APPELLANT(S):PETITIONERS/CLAIMANTS --------------------------------------------- 1.SANTHA, W/O.LATE RAVI, VELAPARAMBIL HOUSE, VALIYAPARAMBU DESOM, P.O. KURUVILASSERY, THRISSUR DISTRICT NOW RESIDING AT ERUMMAL HOUSE, MELADOOR (PO) PUTHUNAGAR, VIZHUPPURAM (TK) THAMIL NADU-605105 2.SREELEKHA, D/O.LATE RAVI VELAPARAMBIL HOUSE, VALIYAPARAMBU DESOM, P.O. KURUVILASSERY, THRISSUR DISTRICT NOW RESIDING AT AKARAM (PO), PUTHUNAGAR VIZHUPPURAM (TK), TAMIL NADU-605105 BY ADV. SRI.M.H.HANIL KUMAR RESPONDENT(S):RESPONDENTS ------------------------------------ 1.JOSE K.O, S/O.OUSEPH KUNDUPARAMBIL HOUSE P.O.ARIPALAM THRISSUR DISTRICT-680668 2.NATIONAL INSURANCE CO.LTD, BRANCH OFFICE:MALIEAKAL BUILDING MAIN ROAD, IRINJALAKUDA, THRISSUR DISTRICT. R2 BY ADV. SRI.MATHEWS JACOB (SR.) R2 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.P.B.SAHASRANAMAN R1 BY ADV. SRI.T.S.HARIKUMAR R1 BY ADV. SRI.K.JAGADEESH R1 BY ADV. SRI.RAAJESH S.SUBRAHMANIAN R2 BY ADV. SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR** ## **& K.P.JYOTHINDRANATH, JJ.** **========================== M.A.C.A. No.1011 OF 2013 ==========================** Dated this the 7[th] day of July, 2016 ## **JUDGMENT** Ravikumar, J **.** This appeal is preferred against the judgment and award dated 18.01.2013 in O.P.(MV)No.1286/2007 passed by the Motor Accidents Claims Tribunal, Irinjalakuda. The appellants are the wife and daughter of one Ravi, who met with a motor vehicle accident on 11.04.2007 at 11 a.m. and succumbed to the injuries sustained in the accident. They filed the aforementioned claim petition seeking compensation for his death under Section 166 of the Motor Vehicles Act. In fact, yet another claim petition was also filed before the Tribunal for compensation for his death and the appellant therein claimed that she is the legally wedded wife of deceased Ravi. **M.A.C.A.1011/2013** 2 Evidently, both the claim petitions viz., O.P.(MV)Nos. 813/2007 and 1286/2007 were jointly enquired into and a common judgment and award was passed thereon, whereby and whereunder the Tribunal found that no such motor vehicle accident as alleged had occurred and consequently, both the claim petitions were dismissed with costs. The claimant in O.P.(MV)No.813/2007 has not chosen to prefer any appeal. As stated hereinbefore, this appeal has been preferred by the petitioners in O.P.(MV)No.1286/2007 evidently, aggrieved by the dismissal of the said claim petition. 2. We have heard the learned counsel appearing for the appellants, the learned counsel appearing for the first respondent and also the learned counsel appearing for the second respondent/ Insurance Company. 3. Before considering the rival contentions, it is only apposite to refer to an interim order passed by this Court in **M.A.C.A.1011/2013** 3 I.A.No.1504/2013 in M.A.C.A.No.1011/2013. Evidently, that application was filed by the appellants herein with the prayer to implead the petitioner in O.P.(MV)No.813/2007 before the Tribunal, as the additional third respondent in M.A.C.A.No.1011/2013. In the said interlocutory application, this court passed the following order on 6.8.2015 :- “ The prayer in this application is to implead the third respondent as additional third respondent in M.A.C.A.No.1011 of 2013. The records disclose that additional third respondent who is sought to be impleaded is not a party to O.P.(MV)No.1286 of 2007 from which this appeal arises. She had filed O.P.(MV) No.813 of 2007 joining besides respondents 1 and 2 herein, the second appellant as a party to the claim petition. By a common award passed on 18.1.2003, both the claim petitions were dismissed. The third respondent who is the claimant in O.P.(MV)No.813 of 2007 has not chosen to file an appeal challenging the award dismissing O.P.(MV)No.813 of 2007. Though she was arrayed as the third respondent in C.M.Application 1218 of 2013 to condone the delay of 39 days in filing M.A.C.A.No.1011 of 2013 and she was served, she has not entered appearance through counsel. In such circumstances, we find no reason why the third respondent herein should be impleaded as a party to M.A.C.A.No.1011 of 2013. If the third respondent has any interest in the matter, it is for her to **M.A.C.A.1011/2013** 4 independently challenge the award passed in O.P.(MV) No.813 of 2007. We therefore find no reason to implead the third respondent herein as the additional third respondent in the appeal. The application fails and is accordingly dismissed.” 4.Now reverting to the case on hand, which arose from the judgment and award in O.P.(MV)No.1286/2007, it is evident that the Tribunal dismissed the same based on the finding that no such motor vehicle accident as alleged in the claim petition had occurred and therefore, the appellant/petitioners are not entitled to get compensation. 5.A brief narration of the occurrence is essential for a proper disposal of this appeal. According to the appellants/petitioners, on 11.04.2007 at about 11 a.m., deceased Ravi was standing at Pallinada Centre at Karupadanna when the motor cycle bearing Reg.No.KL 453524, driven by the first respondent in a rash and negligent manner along Irinjalakuda-Kodungallur public road from south to north knocked him down. Consequently, he sustained injuries to which he **M.A.C.A.1011/2013** 5 succumbed from Medical College Hospital, Thrissur on 16.07.2007. In the claim petition, it was alleged that the petitioners are respectively the wife and daughter of deceased Ravi and deceased Ravi was a driver by profession. 6.A total compensation of `4,00,000/- was claimed by the appellants herein. It is to be noted that the Tribunal conducted a joint enquiry in the claim petitions and the claimant in O.P.(MV).813/2007 was examined as PW1 besides getting examined one Mohamed Kunji as PW2. On the side of the petitioners, Exts.A1 to A7 were marked. On the side of the respondents, RWs 1 to 3 were examined and Exts.B1 and B2 which are respectively the reports from Deputy Superintendent of Police, Irinjalakkuda and Superintendent of Police, Thrissur were got marked. The Tribunal proceeded to consider both the claim petitions jointly. Ext.A1 is the copy of the FIR in Crime No.266/2007 of Irinjalakkuda Police Station registered for unnatural death. The Tribunal found that the statement of the first informant **M.A.C.A.1011/2013** 6 appended to Ext.A1 did not disclose that it is a road traffic accident and that, according to the first informant, his relative Ravi died due to the injuries sustained on the head and left ear due to a fall. Admittedly, the deceased Ravi was admitted in the hospital on 11.4.2007. The Tribunal also took note of the fact that the appellants/petitioners had not produced wound certificate and no explanation whatsoever was given for its non-production. Ext.A2 is the charge sheet filed against the first respondent herein who was riding the motor cycle alleging commission of offence under sections 279 and 304(A) of the Indian Penal Code. Ext.A6 is the judgment of the Court of Judicial First Class Magistrate, Irinjalakkuda in C.C.No.1523/2007 arising from crime No.266/2007 of Irinjalakkuda Police Station. As per Ext.A6 judgment, the first respondent was acquitted of the offences under sections 279 and 304A, IPC. The Tribunal rightly observed that finding of criminal court is not binding on the Tribunal and the Tribunal is duty bound to arrive at a finding based on evidence let in by the parties before it. After making such an **M.A.C.A.1011/2013** 7 observation, the Tribunal went on to consider the question whether deceased Ravi sustained injuries to which he succumbed, in a motor vehicle accident, as alleged in the claim petition. Obviously, the Tribunal perused Ext.B1 report submitted by RW3, Deputy Superintendent of Police, Irinjalakkuda. The Tribunal found that Ext.B1 and the evidence of RW3 would support the case of respondents 1 and 2 that such an accident had not taken place. The Tribunal observed that there is nothing on record to believe that the Deputy Superintendent of Police who filed the report got enmity towards the petitioners or got any special interest towards the respondents. We may hasten to add here that what matters is not the question whether the Deputy Superintendent of Police got enmity towards the appellants-petitioners but the validity and evidentiary value of his report viz., Ext.B1 report in the proceedings before the Tribunal. We will consider it a little later. In view of the aforementioned observations, the Tribunal found that the version of RW3 is believable and at the same time, found that PW2 who **M.A.C.A.1011/2013** 8 supported the case of the petitioners/appellants failed to give details regarding the accident. The Tribunal further noted that PW2 would also admit the fact that the first respondent herein was along with him in the hospital. The Tribunal ultimately found that non-production of wound certificate would cut the root of the case of the appellants and went on to conclude that PW2 is a hired witness. 7.A scanning of the impugned judgment would reveal that the counsel for the appellants-petitioners contended before the Tribunal that RW3 had conducted investigation in the case without obtaining permission from the court. The Tribunal found that going by the evidence, RW2 filed a complaint before the Superintendent of Police and Exts.B1 and B2 would clearly show that investigation was ordered only based on the said complaint. They are respectively the report of the Deputy Superintendent of Police, Irinjalakkuda and an information given to RW2 from the office of the Superintendent of Police, Thrissur. The Tribunal found that from Exts.B1 and B2, it **M.A.C.A.1011/2013** 9 could be seen that the Additional S.I, M.T.Pauly was responsible for filing charge sheet against the first respondent on false grounds and further, the Tribunal went on to hold:- “The learned counsel for R2 has submitted that erring officer should be taken to task. It is reported that he was retired and therefore, no useful purpose would be served. Ext.B1 shows that deceased Ravi sustained injuries on his head due to a fall. Ext.A1, FI statement and FIR, Ext.B1, B2 and the circumstances will only lead to the inference that it is not a road traffic accident. There is preponderance of probability for the case that deceased Ravi sustained injuries due to a fall during working. It is due to the cerebral haemorrhage. The issues therefore answered against the petitioners.” It is based on the evidence of RW3 and the documents referred hereinbefore that the Tribunal arrived at a conclusion that the appellants/petitioners failed to establish that Ravi died in a motor vehicle accident as alleged and therefore, they are not entitled to get compensation. **M.A.C.A.1011/2013** 10 8.A scrutiny of the impugned judgment would reveal that the Tribunal took into consideration Exts.B1 and B2 and the oral testimony of RW3. A perusal of Ext.B1 would reveal that it is a report submitted by RW3 pursuant to an investigation (whether it was an conducted him in his as enquiry) by capacity Deputy Superintendent of Police, Irinjalakkuda. True that filing of a report before the court of competent jurisdiction would not be an impediment in conducting a further investigation and evidently, in this case, RW3, the Deputy Superintendent of Police, Irinjalakkuda conducted investigation/enquiry after the filing of Ext.A2 charge sheet against the first respondent before the Court of Judicial First Class Magistrate, Irinjalakkuda, by the investigating officer. There is nothing on record to show whether RW3 filed Ext.B1 report, either by himself or through the Superintendent of Police, Thrissur, before any court of competent jurisdiction. If either of them had conducted a further investigation in terms of S.173(8) of the Code of Criminal Procedure (for short 'Cr.P.C), the report should have been filed before **M.A.C.A.1011/2013** 11 the court where the final report was already laid so as to give the report concerned legal validity in the eye of law. At any rate, there is nothing on record which would establish that Ext.B1 was filed before the court concerned to treat it as a report under section 173(8), Cr.P.C. Going by the recital in Ext.B1, it is evident that the said report was prepared pursuant to a complaint filed by RW2 regarding the investigation conducted in crime No.266 of 2007 of Irinjalakkuda Police Station. Ext.B1 would further reveal that it is dated 12.11.2008 and on receipt of further complaint from RW2, the Superintendent of Police, Thrissur instructed RW3 who was then working as Deputy Superintendent of Police, Irinjalakkuda to conduct an investigation (whether it is an enquiry?) and to submit a report. It is to be noted that RW2 was an insurance investigator attached to the National Insurance Company, the second respondent. True that going by Ext.B1 report, RW3 enquired into the complaint preferred by RW2 and filed it before the Superintendent of Police, Thrissur. He has stated therein that on his investigation, it was found that no such **M.A.C.A.1011/2013** 12 motor accident as alleged in the claim petition had occurred and in fact, the first respondent had only arrived at the place in question on his motor cycle and upon seeing deceased Ravi lying on road, he took him firstly to Kodungallur Taluk Hospital and thereafter to Medical College Hospital, Mulakunnathukavu. In Ext.B1, it is further stated that it is such a person who took the deceased to hospital, got implicated as an accused in the final report submitted in crime No.266 of 2007 of Irinjalakkuda Police Station. RW3 further stated therein that such a lapse had occurred solely due to the defective investigation conducted by the Additional S.I., M.T.Pauly. However, a perusal of Ext.B1 itself would further reveal that, on the final report filed in crime No.266 of 2007 of Irinjalakkuda Police Station, the Court of Judicial First Class Magistrate, Irinjalakkuda took cognizance and consequently, it was taken on file as C.C.1523 of 2007. Though the said fact was also intimated by RW3 to the Superintendent of Police, Thrissur, there is nothing on record to show that appropriate action based on such investigation/enquiry was taken by any such **M.A.C.A.1011/2013** 13 authorities. Ext.B2 is virtually an information passed from the office of the District Superintendent of Police, Thrissur to RW2 pursuant to his letter requiring information about the steps taken on his complaint, under the Right to Information Act. The learned counsel appearing for respondents 1 and 2 submitted that Ext.B1 is essentially a report pursuant to a re-investigation. We are at a loss to understand as to how could the same be described as the report on re-investigation. The said contention cannot be accepted as after filing a final report pursuant to investigation, under section 173(2), Cr.P.C, further investigation is permissible as provided under section 173(8), Cr.P.C; but the said section does not empower to conduct a re-investigation (see the direction in K.Chandrasekhar v. State of Kerala [AIR 1998 SC 2001]. There can be no doubt with respect to the position that a further investigation and re-investigation are different and distinct and further investigation is permissible and it can be done even without permission from the Court and it can be done even after filing of charge sheet. But at the same time, there can be no doubt that position **M.A.C.A.1011/2013** 14 is different in the case of re-investigation. In **K.M.Natarajan v. Sasidharan [2002 Cri.L.J. 1672 (Ker)** ], this Court held that where police had filed a final report and Magistrate had taken cognizance by issuing process on appearance of the accused in pursuance of process issued, police could conduct only further investigation in terms of section 173(8) Cr.P.C and not re-investigation. In the decision in **Ramachandran v. R. Udayakumar** reported in **AIR 2008 SC 3102** , the Hon'ble Apex Court held that though even after completion of investigation under section 173(2), Cr.P.C, the police got a right to further investigation under section 173(8), but not for fresh investigation or re-investigation. There is no case for the respondents that a re-investigation was done in this case based on court order after setting aside the final report or that the said report is one based on further investigation and it was filed before the court. Even if it is a report on further investigation, it ought to have been filed before the Court of Judicial First Class Magistrate, Irinjalakkuda where the final report was already laid, in terms of S.173(8), Cr.P.C, to have any legal **M.A.C.A.1011/2013** 15 impact or effect. Merely because it is one prepared by a higher/superior officer, it would supercede or outweigh a final report laid before the competent court as long as it was filed before the competent court, in accordance with law. In this context, it is to be noted that Ext.A6 judgment in C.C.No.1523 of 2007 of the Court of Judicial First Class Magistrate, Irinjalakkuda would reveal that a final report in crime No.266 of 2007 was received by the court on 16.4.2007 and on 17.4.2008, the accused appeared before that court and was released on bail. Evidently, in C.C.No.1523 of 2007, the trial commenced on 17.4.2008 and it was closed on 28.8.2009 and the judgment was rendered on 18.1.2013. We have already taken note of the fact that Ext.B1 is dated 12.11.2008. RW3 did not depose before the Tribunal that Ext.B1 is a report based on a further investigation conducted by him or after preparing Ext.B1 invoking the power under section 173(8) **,** it was filed before the court of competent jurisdiction to be treated as a report under section 173(2), Cr.P.C. On the contrary, Ext.B1 would reveal that it is only a report submitted by RW3 in his **M.A.C.A.1011/2013** 16 capacity as Deputy Superintendent of Police, Irinjalakkuda to the Superintendent of Police, Thrissur after conducting the investigation/ enquiry on a complaint filed by RW2 who was an insurance investigator of the National Insurance Company. As noticed hereinbefore, there is no case that Ext.B1 is a report pursuant to an order for re-investigation. There is no case for RW3 that such an enquiry was conducted based on any observation in Ext.B6 judgment against the officer who laid the charge in crime No.266 of 2007 of Irinjalakkuda Police Station as part of departmental proceedings and it ended in its logical conclusion. Though as per section 169 of the M.V.Act, the Tribunal acts generally as 'civil court' and vested with necessary powers of Civil Procedure Code and in respect of matters where provisions of the Code are not to be followed by virtue of the said section or any other provisions under the Act and Rules, it could follow procedure consistent with the principle of fair play, propriety and natural justice, it could not topple the recognised positions, relevant provisions of law and principles while dealing with such **M.A.C.A.1011/2013** 17 matters. Therefore, while considering the case of the appellants based on Ext.A2 final report and Exts.B1 and B2 produced by the respondents, the Tribunal ought not to have been swayed away by the fact that Exts.B1 and B2 are prepared by higher officers as in the eye of law as they could not outweigh Ext.A2 final report. In such circumstances, what is the evidentiary value of Ext.B1 before a court of law? We have already found that the Tribunal is correct in holding that the finding by a criminal court is not binding on the Tribunal. But at the same time, we have no hesitation to hold that a judgment of a criminal court after conducting a trial acquitting a person based on a final report under section 173(2) Cr.P.C cannot be outweighed by documents which are of the nature of Exts.B1 and B2 reports not filed before court but relating to the case in which such a final report was laid. Going by the nature of Exts.B1 and B2, we have no hesitation to hold that Exts.B1 or B2 cannot have any evidentiary value to outweigh Ext.A6 judgment. In this context, it is also to be noted that neither RW2 nor RW3 got any direct knowledge with respect to the **M.A.C.A.1011/2013** 18 occurrence and in fact, they did not have any such case as well. It is also to be noted that a perusal of Ext.A6 would reveal that, earlier, Ext.A1 FIR in crime No.266 of 2007 was forwarded to the Court of Judicial First Class Magistrate, Irinjalakkuda and later, a final report was laid therein and it is based on that the trial court took cognizance and took on file and registered it as C.C.1523 of 2007. In Ext.A6 judgment thereon, the learned Magistrate found that from the evidence given by PWs 2 and 3 before that court who are respectively one Sudhi and Mohammed Kunji that the accused therein viz., first respondent herein was driving a motor vehicle and it was that motor cycle which knocked down Ravi for whose death the aforesaid claim petition was filed. It is to be noted that PW2 in C.C.No.1523 of 2007 is PW2 before the Tribunal as well. It is also a fact that none among RWs 1 to 3 before the Tribunal were examined in C.C.No.1523 of 2007. There is nothing on record to show that they were even cited as charge witnesses. Ext.A6 would reveal that even after arriving at the finding that the evidence of PWs 2 and 3 therein revealed that the **M.A.C.A.1011/2013** 19 motor cycle was driven by the accused/first respondent herein which knocked down Ravi, the accused was acquitted as there was no conclusive evidence to satisfy the ingredients to attract the offence under sections 279 and 304A, IPC. In such circumstances, we are constrained to hold that neither Ext.B1 nor Ext.B2 and in that regard the oral testimonies of RWs 1 to 3 could outweigh the evidence of PW2 and also prima facie sufficient evidence of negligence revealed from Exts.A1, A2 and A6 for the purpose of a claim under section 166 of the M.V.Act. Exts.A1, A2 and A6 would prima facie go to show that the accident occurred due to the negligence from the part of the first respondent and that, Ravi sustained an injury in a motor vehicle accident. As regards RW1, it has to be noted that going by AnnexureA2, it was he who had ridden the vehicle at the time of the accident and indisputably, he faced the trial and ultimately under Ext.A6 judgment he was acquitted on the aforesaid grounds. Taking into account all the above expatiated circumstances, we have no hesitation to hold that it is the perverse appreciation of the evidence on record **M.A.C.A.1011/2013** 20 that resulted in the impugned award. The upshot of the discussions is that the impugned award calls for an appellate interference and it is liable to be interfered with. The fact that the petitioner in O.P.(MV). 813/07 had not chosen to file an appeal against the impugned common judgment dated 18.1.2013 cannot be a reason adversely affecting the right of appeal of the petitioner in O.P.(MV).No.1286/2007. There cannot be any doubt with respect to the position that since it is a common award in O.P.(MV).Nos.813 and 1286 of 2007, the judgment cannot be allowed to stand to the extent it pertains to O.P.(MV). No.813/2007 after setting aside the same in relation to O.P.(MV). No.1286 of 2007 as all the points were considered jointly after conducting a joint enquiry in the claim petitions and evidence was also common in both the cases. This appeal is allowed and in the circumstances, the impugned common judgment is set aside. Consequently, O.P.(MV).Nos. 813 and 1286 of 2007 will stand restored into the files of M.A.C.T, Irinjalakkuda and the Tribunal shall consider the claim petitions, in accordance with law and taking into **M.A.C.A.1011/2013** 21 account the observations and findings in this judgment. We have already taken note of the fact that the petitioner in O.P.(MV).813 of 2007 and the first petitioner in O.P.(MV).No.1286 of 2007 claimed the status of wife of the deceased Ravi. It is made clear that we have not decided the question who among them is the legally wedded wife of deceased Ravi and therefore, who is entitled to compensation for his death. Such questions cannot be decided in one claim petition without hearing the petitioner in the other claim petition. Hence, all such matters are to be dealt with in accordance with law, by the Tribunal with notice to all parties. The Tribunal shall take endeavour to dispose of the matters expeditiously. There will be no order as to costs. Sd/- ## **C.T. RAVIKUMAR (JUDGE)** **Sd/-** ## **K.P.JYOTHINDRANATH (JUDGE)** ## **spc/** **M.A.C.A.1011/2013** 22 **M.A.C.A.1011/2013** 23 ## **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **M.A.C.A.1011/2013** 24