Sree Padmanabhan v. S.S. Jeeva and The United India Insurance Company Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE TUESDAY, THE 21ST DAY OF NOVEMBER 2017/30TH KARTHIKA, 1939 MACA.No. 1035 of 2014 () ------------------------AGAINST THE AWARD IN OPMV 12/2006 of M.A.C.T., ATTINGAL DATED 26-04-2013 APPELLANT(S)/APPLICANT: ---------------------- SREE PADMANABHAN S/O.VASUDEVAN, PRASANTH, NEAR SAJI HOSPITAL, KAZHAKUTTOM, THIRUVANANTHAPURAM-695582 BY ADVS.SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. SRI.GOVIND PADMANAABHAN ## RESPONDENT(S)/RESPONDENTS: -------------------------- ## 1. S.S.JEEVA, - S/O.SUDHAKARAN, CHITHAMBARA VILAKOM, ATTIPRA, KAZHAKUTTOM, THIRUVANANTHAPURAM-695582 2. THE UNITED INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE, PALAYAM, THIRUVANANTHAPURAM-695033 R2 BY ADV. SMT.R.REMA R2 BY ADV.SRI.JOHN JOSEPH VETTIKAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & A. MUHAMED MUSTAQUE, JJ. ==========================** ## **M.A.C.A. No.1035 OF 2014 ==========================** Dated this the 21[st ] day of November, 2017 ## **JUDGMENT** _Ravikumar, J._ The unsuccessful applicant in O.P.(MV).No.12 of 2006 on the files of the Motor Accidents Claims Tribunal, Attingal filed this appeal on being aggrieved by its dismissal as per the impugned judgment and award dated 26.4.2013. He filed the said claim petition under section 166 of the Motor Vehicles Act seeking compensation of Rs.2,20,000/- alleging that he had sustained injuries in a motor vehicle accident occurred on 27.2.2002. 2. A brief narration of the facts is necessary for the disposal of this appeal. The case of the appellant is that he had sustained injuries in a motor vehicle accident involving collision of the scooter bearing Reg.No.KL-01/L-409 and the motor cycle bearing Reg.No.KL-01/F9456 driven by the first respondent who is also its owner. He was the **M.A.C.A.1035/2014** 2 scootorist. The accident had occurred at a place near Govt. High school, at Kazhakuttom-Kulathoor public road. 3. Though the accident had occurred on 27.2.2002, Ext.A1 FIR was registered only on 29.8.2002 as per which crime No.284/2002 was registered under sections 279, 337 and 338 of the Indian Penal Code against the first respondent, rider of the motor cycle allegedly involved in the accident. It was so registered pursuant to filing of a private complaint by the appellant before the Judicial First Class Magistrate-III, Thiruvananthapuram and its forwarding for investigation and report under section 156(3) of the Cr.P.C. Before the Tribunal, the first respondent had remained ex parte. The second respondent-insurer alone had contested the matter. The second respondent would admit the existence of a valid insurance coverage in respect of the aforesaid motor cycle allegedly involved in the accident. At the same time, the second respondent-insurer had taken up the contention that the petitioner should be put to strict prove regarding the occurrence of the accident. Evidently, the second respondent had also canvassed for the dismissal of the claim petition for non-joinder **M.A.C.A.1035/2014** 3 of necessary parties viz., the insurer of the scooter. In the claim petition, it is contended that in the accident, the appellant had sustained grievous injuries of type III compound fracture both bones of left leg. Based on the rival pleadings, the Tribunal had framed the following points for consideration:- 1. Whether the accident occurred on account of rashness and negligence on the part of the 1[st] respondent owner-cum-rider (Jeeva) of motor cycle KL-01/F-9456? OR whether the petitioner-claimant, the rider of the scooter KL01/L-409, by his negligence contributed to occurrence of the accident? 2. Whether the petitioner-claimant has sustained grievous bodily injuries in the accident? If so, what is the quantum of compensation amount payable to the petitioner-claimant? 3. Reliefs and costs. 4. As against point No.1, the Tribunal had held that prima facie, the accident could not be held to have occurred on account of rashness and negligence on the part of the first respondent, owner-cum-rider of the motor cycle bearing Reg.No.KL-01/F-9456. As regards point No.2, the Tribunal had found that the inordinate delay in reporting occurrence of the accident to the police is suspicious. Furthermore, it **M.A.C.A.1035/2014** 4 was held that he sustained no other injury in the accident and absence of evidence to show that he had rushed to any higher centre for medical treatment nearest to the scene of occurrence would make his version of having sustained injuries in a motor vehicle accident occurred on 27.2.2002 involving motor cycle bearing Reg.No.KL01/F-9456, unbelievable. It is based on such conclusions and findings that the claim petition was dismissed. 5. We have heard the learned counsel for the appellant as also the learned counsel for the second respondent. Though notice was served on the first respondent, he has not chosen to enter appearance and contest the appeal. It is thus obvious that before the Tribunal as also before this Court, the first respondent who is the owner-cum-rider of the motor cycle bearing Reg.No.KL-01/F-9456 kept aloof from participating in the proceedings. As regards the second point framed by the Tribunal for consideration viz., whether the appellant had sustained grievous bodily injuries in the accident, as noticed hereinbefore, the Tribunal held that the version of the appellant could not be believed. The First respondent did not contest the claim **M.A.C.A.1035/2014** 5 petition and he has also not chosen to contest this appeal. The specific contention of the appellant is that he sustained injuries when motor cycle bearing Reg.No.KL-01/F-9456 driven by the first respondent in a rash and negligent manner hit against the scooter ridden by him at the relevant point of time. As noticed hereinbefore, the second respondent insurance company would admit the existence of a valid insurance coverage of the aforesaid motor cycle at the relevant period. Ext.A10 is the referral O.P card dated 13.5.2002 of Medical College Hospital, Thiruvananthapuram. Ext.A11 is the referral card dated 27.2.2002 and Ext.A12 is the referral O.P card dated 4.11.2000. After referring to those documents, the Tribunal had observed that they would show that the appellant had sustained type III compound fracture of both bone of left leg and undergone treatment therefor. The Tribunal had further observed that in those documents, nothing was mentioned as to whether he had sustained any other injury. Ext.A7 is the treatment certificate dated 10.2.2003. The Tribunal had also taken note of the fact that going by Ext.A8 leave certificate dated 9.12.2002, he was on leave from 1.3.2002 to 9.7.2002. According to **M.A.C.A.1035/2014** 6 the Tribunal, the sustainment of such a grievous injury of Type III compound fracture of both bones of left leg without sustaining even a single abrasion, in a motor vehicle accident is highly impossible. Taking into account such aspects, it was held that the appellant had suppressed the real genesis of the incident or accident whereof he sustained single grievous injury. We do not find any reason to sustain such finding of the Tribunal. 6. Ext.A11 referral O.P. card is dated 27.2.2002. It would reveal that the appellant was referred to Medical College Hospital, Thiruvananthapuram. Exts.A10 and A12 would also reveal the factum of sustainment of the aforesaid injury by the appellant. Ext.A7 treatment certificate would also reveal that he sustained such an injury. As noticed hereinbefore, the factum of involvement of the motor cycle bearing Reg.No.KL-01/F-9456 in such an accident that resulted in the aforementioned injury to the appellant, was not disputed by the first respondent. Though the second respondent disputed occurrence of the accident, no evidence whatsoever to rebut the case of the appellant was adduced by the second respondent. **M.A.C.A.1035/2014** 7 Ext.A8 leave certificate would also reveal that the appellant was on leave from 1.3.2002 to 9.7.2002. The fact that the appellant had not produced any other evidence viz., wound certificate, treatment certificate from any other hospital could not have been taken as a ground for holding that he had failed to establish that he sustained injuries the accident or that he had suppressed the real genesis of the incident or accident. 7. We will now deal with the finding of the Tribunal as relates the first point. True that, the accident in question had allegedly occurred on 27.2.2002 at 7.45 am. and Ext.A1 FIR was registered only on 29.8.2002. At the same time, the evidence on record would reveal that the petitioner had lodged a private complaint before the JFCM- III, Thiruvananthapuram and it was forwarded for investigation under section 156(3) of the Cr.P.C. It was on its receipt for investigation that crime No.284/2002 was registered as per Ext.A1, in connection with the accident against the first respondent for having committed offences under sections 279, 337 and 338, IPC. Ext.A6 would reveal that after the investigation in the said crime, **M.A.C.A.1035/2014** 8 charge sheet was laid against the first respondent on 26.9.2002. It is not in dispute that in Ext.A6 charge sheet, the first respondent is the indictee. In a claim petition filed under section 166 of the M.V.Act, production of police charge sheet viz., final report under section 173(2) in respect of the crime registered in connection with the accident in question, is a prima facie sufficient evidence of negligence against the indictee therein. In the light of the decision of a Division Bench of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal** reported in **2011 (3) KLT 648,** production of a police charge sheet is a prima facie sufficient evidence of negligence for the purpose of a claim under section 166, M.V.Act. It was held therein that as a general rule, it could 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 M.V Act. If any one of the parties do not accept the charge sheet, the burden must be on such party to adduce evidence, going by the said decision. If the Tribunal concerned feels that charge sheet is collusive, it can record that charge sheet cannot be accepted and call upon the parties, at any **M.A.C.A.1035/2014** 9 stage, to adduce oral evidence of the accident and alleged negligence, in terms of the said decision. In such eventuality, the issue of negligence must be decided on other evidence, ignoring charge sheet. In this case, admittedly, there is nothing on record which would indicate that the Tribunal had entered into a finding that the charge sheet is collusive. Even on forming such an opinion Claims Tribunal is bound to follow the further procedures mentioned in the said decision. In such circumstances, in the light of the dictum in **Pazhaniammal** 's case, Ext.A6 charge sheet indicting the first respondent ought to have been taken as prima facie sufficient evidence of negligence against him for the purpose of the claim petition filed under section 166, M.V.Act. The said view was restated by another Division Bench in **National Insurance Co.** v. **Nirmala Balachandran [ 2012 (3) KLJ 214]** . When production of the final report in the crime registered in connection with the accident in question is a sufficient prima facie evidence, certainly, it would be open to the other side who disputes the contents in the charge sheet, to adduce rebuttal evidence. In this case, the first respondent who is the **M.A.C.A.1035/2014** 10 indictee in Ext.A6 charge sheet did not contest the claim petition. The second respondent insurance company did not adduce any oral or documentary evidence to rebut the evidence of the appellant. The Tribunal has referred to Ext.A2 scene mahazar. It is also to be noted that Ext.A2 scene mahazar was also taken into consideration by the Tribunal, as is evident from paragraph 5 of the impugned judgment. The Tribunal took note of the fact that going by the same, the width of the road at the place of occurrence was 5 metres and there was a straight view to a distance of 75 metres on either direction. The Tribunal also took note of the fact that going by the police records including Ext.A2 scene mahazar, vehicles involved in the accident were proceeding from opposite direction. The Tribunal also took note of the fact that going by the records, the accident had occurred at a place 75 metres away from the eastern tarred portion of the public road and thus making it appear that motor cycle ridden by the first respondent strayed into its wrong side rather swerved on to its wrong side and hit against scooter ridden by the petitioner-appellant. Thus, it is evident that virtually, the Tribunal had arrived at a finding that the **M.A.C.A.1035/2014** 11 vehicle ridden by the first respondent went to its offside and hit against the vehicle ridden by the appellant. In the light of the fact that the police records produced by the appellant including the final report revealed such a position which was not at all rebutted by the other side, we are at a loss to understand as to how the Tribunal could come to the conclusion that the appellant had failed to establish the involvement of the motorcycle bearing Reg.No.KL-01/F-9456 in the accident in question and also the fact that it is the negligence on the part of the first respondent, owner-cum-rider of the motor cycle that caused the accident. We see no reason to concur with the reasonings of the Tribunal made in paragraph 5 of the award, as hereunder:- But, it is to be seen that, even if the 1[st] respondent owner-cum-rider had the motor cycle KL-01/F-9456 ridden by him strayed to wrong side, the petitioner-claimant could have deftly avoided the accident as it would not have taken much space for the scooter KL-01/L-409 to move out of the way of the motor cycle KL01/F-9456 ridden by the 1[st] respondent ownercum-rider. Ext.A3 is vehicle mahazar dated 18-9-2002 in respect of scooter KL-01/L-409, whereof the vehicle is seen to have sustained some damage suggestive of it having been involved in a collision with another vehicle; whereas, vide Ext.A4 report of AMVI dated **M.A.C.A.1035/2014** 12 18-9-2002, the motor cycle KL-01/F-9456 is shown to have sustained only minor, or trifle damage of one of its indicator lights being seen broken. However, the scooter KL-01/L-409 admittedly ridden by the petitioner-claimant is shown to have sustained rather extensive damage vide Ext.A5 report of AMVI dated 189-2002. It is true that, the 1[st] respondent owner-cum-rider (Jeeva) of motor cycle KL01/F-9456 is accused of having committed offences punishable under secs.279, 337 and 338 IPC vide Ext.A6 charge sheet dated 26-92002 finding him to have been solely responsible for the accident. The evidence on record is totally insufficient to show that, the scooter KL-01/L-409 sustained damage being hit against by motor cycle KL-01/F-9456. If the case of the petitioner-claimant was true, the motor cycle KL-01/F-9456 ought to have been found to have sustained far more damage, when the damage sustained by it was viewed against the damage sustained by scooter KL-01/L-409 ridden by the petitioner-claimant. That being so, the accident cannot be found prima facie to have occurred on account of rashness and negligence on the part of the 1[st] respondent owner-cum-rider of motor cycle KL-01/F9456. Point No.1 found accordingly. According to us, in the light of the evidence on record, as discussed hereinbefore, the Tribunal was not justified in repelling the contentions of the appellant and to hold that the accident could not be taken as one occurred on account of rashness and negligence on the **M.A.C.A.1035/2014** 13 part of the first respondent. We have already noted the fact that the respondent did not adduce any evidence to discredit the evidence flowing from Exts.A7 and A10 to A12 which would reveal the fact that in the accident in question, the appellant sustained type III compound fracture of both bone of left leg. The long and short of the discussions is that the findings of the Tribunal as aforesaid calls for interference and they are liable to be set aside. In view of the discussion of evidence and in the light of the position of the law referred above, we hold that the accident had occurred due to the negligence of the first accused. We may hasten to add in the circumstances explained hereinbefore that if the Tribunal had followed the procedure in terms of the provisions under Rule 2 of Order XIV of the Code of Civil Procedure, the present situation could have been avoided. It is also to be noted that as point No.2, the Tribunal had formulated the point as to what should be the quantum of compensation payable to the petitioner-appellant. Certainly, the question whether the first respondent was negligent or whether the appellant was also guilty of contributory negligence are not matters **M.A.C.A.1035/2014** 14 which would fall under the purview of Rule 2 CPC as provided under sub-rule (2) thereunder. In the circumstances, it would have been only appropriate for the Tribunal to pronounce the judgment on all issues in terms of the provisions under Order XIV Rule 2(1), CPC. 8. In the light of the aforesaid discussions, we set aside the findings of the Tribunal as against point Nos.1 to 3 and hold that the appellant had succeeded in establishing that he sustained injuries in a motor vehicle accident involving motorcycle bearing Reg.No.KL01/F-9456 and scooter bearing Reg.No.KL-01/L-409 and that he sustained injuries referred in Ext.A7, A10 to A12 which were not refuted by the respondents. Having set aside the aforesaid findings and taking note of the failure on the part of the Tribunal in assessing the compensation payable, it is only proper for us to remand the matter to the Tribunal for assessing just compensation payable to the appellant-petitioner for the injuries sustained by him in the accident in question. For the said purpose, this matter is remanded. In the interest of justice, such an assessment has to be made as expeditiously possible, after putting the parties on notice, at any rate, within a period **M.A.C.A.1035/2014** 15 of three months from the date of receipt of a copy of this judgment. No order as to costs. **Sd/-** **C.T. RAVIKUMAR (JUDGE)** **Sd/A. MUHAMED MUSTAQUE (JUDGE)** **spc/** # **M.A.C.A.1035/2014** 16