Sulochana P.C. and others v. K.K. Gopalan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 9[TH] DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944 MACA NO. 3076 OF 2015** **IN O.P.(MV)NO.1099/2012 OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL -II (ADDL. DISTRICT JUDGE-II), PATHANAMTHITTA** ## **APPELLANTS:** - **1 SULOCHANA P.C., AGED 59 YEARS, AJITH BHAVAN, MANNARAMALA MURI, PATHANAMTHITTA P.O., OMALLOOR VILLAGE, KOZHENCHERRY TALUK** - **2 AJITH KUMAR K.S., AGED 39 YEARS,** **AJITH BHAVAN, MANNARAMALA MURI, PATHANAMTHITTA P.O., OMALLOOR VILLAGE, KOZHENCHERRY TALUK. 3 SUJITH KUMAR, AGED 36 YEARS, AJITH BHAVAN, MANNARAMALA MURI, PATHANAMTHITTA P.O., OMALLOOR VILLAGE, KOZHENCHERRY TALUK. 4 RENJITH KUMAR K.S., AGED 29 YEARS, AJITH BHAVAN, MANNARAMALA MURI, PATHANAMTHITTA P.O., OMALLOOR VILLAGE, KOZHENCHERRY TALUK BY ADVS. SRI.T.K.KOSHY SRI.ABE RAJAN SRI.SABU I.KOSHY** ## **RESPONDENT:** **K.K.GOPALAN, S/O.KESAVAN, SUBHA NIVAS HOUSE, MAKKANKUNNU P.O, NANNUAKKADU MURI, PATHANAMTHITTA VILLAGE, KOZHENCHERRY TALUK, PIN 689 645. BY ADVS. SRI.ARUN.B.VARGHESE SMT.M.B.DHANYA BABU SRI.ISAAC THOMAS SRI.JAYKAR.K.S.** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP** **FOR ADMISSION ON 28.10.2022, THE COURT ON 09.12.2022 DELIVERED THE FOLLOWING:** ..2.. ## M.A.C.A.No.3076 of 2015 ## **C.JAYACHANDRAN, J.** ----------------------------------------------------------M.A.C.A.No.3076 of 2015 ------------------------------------------------------------Dated this the 9[th] day of December, 2022 ## **JUDGMENT** The claimants in O.P.(M.V.)No.1099/2012 of the Motor Accidents Claims Tribunal No.II, Pathanamthitta, who are the dependent legal representatives of the deceased, are the appellants herein. The deceased met with an accident on 4.8.2012, while he was traveling as a pillion in a scooter driven by the 1[st] respondent. According to the claimants, the 1[st] respondent turned the scooter abruptly and the deceased fell down to the right hand side, sustained serious injuries to his head and succumbed to the same at Pushpagiri Hospital, Thiruvalla. The claim was one under Section 166 of the Motor Vehicles Act. The Tribunal found that neither the incident /accident as alleged, nor negligence as against the 1[st] respondent/driver is proved and dismissed the O.P. The aggrieved claimants are the appellants. M.A.C.A.No.3076 of 2015 **==> picture [22 x 8] intentionally omitted <==** **2.** The evidence in this case consists of Exts.A1 to A7, supported by the oral evidence of PWs.1 and 2 on behalf of the claimants. On the part of the respondents, DW1 was examined and Ext.D1 judgment was marked. **3.** Heard Sri.Sabu.I.Koshy, learned counsel for the appellants and Sri.Arun.B.Varghese, learned counsel for the respondent. Perused the records. **4.** Learned counsel for the appellants contended that the course adopted by the Tribunal in eschewing Ext.A4 final report in the crime registered in connection with the incident cannot be sustained in law. Learned counsel relied upon a Bench of this Court in **New India Assurance Co. Ltd. v. Pazhaniammal** [2011 (3) KLT 648], which held that a final report against the driver/accused is _prima facie_ sufficient proof of negligence on the part of the driver for the purpose of a claim under S.166 of the Motor Vehicles Act (M.V.Act, for short). The dictum was not properly considered and applied by M.A.C.A.No.3076 of 2015 **==> picture [22 x 8] intentionally omitted <==** the Tribunal, is the argument. From the totality of the circumstances, the Tribunal ought to have found that an accident resulting in the death of the deceased had taken place due to the rash and negligent driving of the scooter by the respondent. It should have been noticed by the Tribunal that the respondent/accused was _inter alia_ charged for the offence under Section 304-A of the Penal Code. The Tribunal lost to sight of the fact that culpable negligence need not be proved for maintaining a claim under S.166 of the M.V. Act. Another ground canvassed by the learned counsel for the appellants is that Ext.B1 judgment acquitting the 1[st] respondent/accused by a criminal court is not binding on a civil court, like the Motor Accidents Claims Tribunal. The Tribunal ought to have noticed the difference between the degree of proof required to prove negligence in both the proceedings. In proof of the accident the Tribunal should have taken note of Ext.A3 report of the Assistant Motor Vehicle Inspector, as also, Ext.A2 vehicle mahazar, which would indicate the damage caused to the scooter, owned by the respondent. The respondent was M.A.C.A.No.3076 of 2015 **==> picture [22 x 8] intentionally omitted <==** examined as DW1, who admitted that he went and saw the deceased at the I.C.U of the Pushpagiri Medical College Hospital, which confirms his guilty consciousness, arising out of his negligence and the consequent accident. The Tribunal erred in placing much reliance upon Ext.A1 F.I.S. preferred by the son of the deceased, wherein he would state that his father sustained injuries in a road accident, in a collision with some vehicle. The son of the deceased admittedly had no direct knowledge of the incident and his statement should not have been relied upon to throw overboard the version of the claimant. Ext.B1 judgment is not of any moment, inasmuch as, the acquittal is only for reason of non-identification of the accused, since the prosecution witnesses turned hostile. Once the accident is amply demonstrated by various documents like Exts.A1 FIR, A2 vehicle mahazar, A3 report of the AMVI and A4 Final Report, the negligence, for the limited purpose of maintaining a claim under Section 166 of the M. V. Act, ought to have been found by the Tribunal, especially when the accident occurred not due to collision between two vehicles, is M.A.C.A.No.3076 of 2015 ..6.. the final argument, based upon which the Counsel seeks the impugned award to be set aside and O.P. allowed. **5.** Per contra, learned counsel for the respondent/owner submitted that the Tribunal is fully justified in its finding that the involvement of the respondent, as also, his negligence is not established by the yardstick of preponderance of probability. Ext.A4 charge sheet lost all its significance, the moment Ext.B1 judgment was delivered, acquitting the respondent/accused. Barring Ext.A4 charge sheet, no evidence, which would suggest any inference as to the negligence of the respondent/driver, was forthcoming. There was no eye witness to the incident; nor was anybody examined, other than the wife of the deceased and the investigating officer. As regards the binding effect of the judgment of the criminal court, in preference to the charge sheet, learned counsel relied upon a Bench decision of this Court in **Mohankumar v. Kuniyel Ibrahim** [2019 (2) KLT 578]. Thus, the counsel seeks to sustain the impugned award. M.A.C.A.No.3076 of 2015 ..7.. **6.** Having heard both the learned counsel, this Court can only endorse the findings of the learned tribunal in the impugned award. More than the legal question as to the effect of a final report, when pitted against the judgment in the criminal case, the fundamental issue involved in this case is regarding the proof of occurrence of the incident/accident as alleged, as also, the involvement of the respondent in the accident. It is relevant to note that the sole respondent in the original petition is the owner of the scooter, who was allegedly driving the same at the time of accident, with the claimant/appellant as a pillion. The insurance company is not impleaded as a respondent, obviously for the reason that the vehicle, at the relevant time, was not covered by an insurance policy, as could be seen from Ext.A2 vehicle mahazar. It is the specific contention of the respondent in paragraph no.16 of the written statement that the scooter in question was never driven by him, with the deceased as the pillion, on 04.08.2012 or on any other date and that he has no knowledge regarding the alleged incident. It could thus be seen that there is total M.A.C.A.No.3076 of 2015 **==> picture [22 x 8] intentionally omitted <==** denial of the incident as such by the respondent, which casts specific burden on the claimant/appellant to prove the above referred facts. **7.** However, as contended for by the learned counsel for the respondent, PW1 and PW2, who were examined on the part of the claimant/appellant, are not eye witnesses to the incident and have no direct knowledge about the same. PW1 is the wife of the deceased, who was admittedly not present in the spot and the facts stated in the proof affidavit are nothing but hearsay. PW2 is the investigating officer in Crime No.909/2012, registered in connection with the alleged accident, who also has no direct knowledge, except in his official capacity. His evidence cannot be acted upon for two reasons. First of all, his version will be the facts collected during the course of investigation, to which law does not attach much credibility, except to the extent it is substantiated by other credible evidence. Secondly, the judgment of acquittal (B1) would efface off the credibility, if any, of PW2's version. M.A.C.A.No.3076 of 2015 ..9.. **8.** Here, it is also significant to note that three alleged eye witnesses to the incident, whose names are referred to in Ext.A4 final report, were not examined before the Tribunal, for which there is an obvious reason. These witnesses were examined in C.C. No. 185/2012 (Cr.No.909/12) of the Chief Judicial Magistrate's Court, Pathanamthitta, where they have disowned having witnessed the incident, which led to Ext.B1 judgment of acquittal, finding that neither the accident nor the identity of the accused is established. Thus, insofar as the case at hand is concerned, the persons who were examined have not witnessed the incident; and those who have allegedly witnessed the incident were not examined at all. **9.** This Court will now consider the impact of the documentary evidence produced on the part of the claimants. Ext.A1 is the first information report in the subject crime (Cr. No.909/2012). The accident occurred on 04.08.2012 and the injured passed away on 05.08.2012. Ext.A1 FIR is registered M.A.C.A.No.3076 of 2015 ..10.. on 05.08.2012 at 7.30 p.m., based upon the FIS preferred by the son of the deceased. In the column indicating the name and particulars of the accused in Ext.A1 FIR, what is seen stated is “driver not known”. Besides the F.I.S, forming part of Ext.A1 F.I.R, would indicate that the deceased was hit by some other vehicle. Ext.A2 is the vehicle mahazar of the scooter, which is allegedly involved in the crime/accident. This document was heavily relied upon by the counsel for the appellant, on the premise that it establishes the accused as the owner of the scooter and that certain damage is reported in the scooter, indicative of the accident. It is true that Ext.A2 refers to the accused as the registered owner of the scooter, as also, his driving license. The scooter in question has been reported to have some damage as per the mahazar. However, the question as to whether the deceased had suffered fatal injuries pursuant to an accident, while he was traveling as a pillion in the subject scooter driven by the respondent herein, is not vouched by Ext. A2 document. Ext. A3 is a report of the inspection of the scooter made by the RTO, Pathanamthitta M.A.C.A.No.3076 of 2015 **==> picture [28 x 8] intentionally omitted <==** which also would not serve any purpose, more than that of Ext.A2. Ext.A4 is the final report, the relevance of which will be discussed in a separate paragraph herebelow. Ext. A5 is the postmortem certificate of the deceased indicating that he died due to intra cranial haemorrhage. Ext. A6 is the accident-cumwound certificate, which also does not refer to the name of the accused, but only that the deceased was found lying after being hit by some vehicle. Ext. A7 is the death report issued by the Pushpagiri Medical College, where he breathed his last. **10.** The fact that the deceased died due to the injuries sustained in an accident is fairly established. Ext. A2 would refer to the respondent as the owner of a scooter, which is allegedly involved in Crime No.909/2012 and that the scooter had some damage reported. These two evidences cannot be bridged/correlated to find that the deceased had traveled in the said scooter and met with an accident. The requirement of law is not merely to establish that fact, but also to prove that the accident occurred due to the negligence of the M.A.C.A.No.3076 of 2015 **==> picture [28 x 8] intentionally omitted <==** driver/respondent, in respect of which, there is complete dearth of evidence, except Ext.A4 final report, the impact of which will be discussed straight away. **11.** Relying on **Pazhaniammal** supra, it was strenuously contended for by the learned counsel for the appellant that a final report in the crime registered in connection with the accident constitutes adequate proof regarding negligence of the driver/respondent. There cannot be any dispute that the Division Bench accepted as a general rule that a charge sheet is _prima facie_ sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act, thus shifting the burden to the other side to adduce evidence against the charge sheet. However, the caveat is contained in the same judgment, by stating that a charge sheet will pale into insignificance and the dispute will have to be decided on that basis of evidence adduced, if oral evidence is adduced by a party, who do not accept such charge sheet. The Division Bench further held in Paragraph No.8 as follows: M.A.C.A.No.3076 of 2015 ..13.. “ _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.** The issue again fell for consideration of another Division Bench in **Mohankumar** (supra), which specifically considered the the significance of a final report, once the trial culminated in a judgment of acquittal. The relevant findings in Paragraph No.8 are extracted herewith: _“We are giving emphasize to the position that when a Claims Tribunal considers a final report laid in a crime after an investigation for the purpose of deciding whether it could be taken as a sufficient prima facie evidence regarding negligence then the Tribunal cannot lost sight of a judgment which was rendered in the case_ M.A.C.A.No.3076 of 2015 ..14.. _arising from the very same final report when it is produced before it. If the final report is relied on even after an acquittal under S.255(1) it is as good as holding that a final report will outlive a judgment and outweigh the latter in a proceeding before the Claims Tribunal. In such circumstances while agreeing with the dictum laid down in Pazhaniammal's case to the effect that in a claim petition filed under S.166 of the M.V. Act production of a final report in the crime registered in connection with the accident in question can be taken as a sufficient prima facie evidence against the indictee we are of the view that it cannot be said that the said decision laid down a proposition that even after the judgment in the case concerned arising from the final report, the final report will outlive and outweigh the judgment. The very expression employed in Pazhaniammal's case assumes relevance in this context. The dictum laid down therein is that in such a case production of charge sheet would be 'a sufficient prima facie evidence of negligence'. It would indeed reveal that rebuttal evidence could be let in. Necessarily,_ M.A.C.A.No.3076 of 2015 ..15.. _in situations like the case on hand, production of judgment acquitting the accused concerned who is also a party in the proceedings before the Claims Tribunal, under S.255(1) has to be taken as rebuttal evidence and thereafter, it cannot be taken that the production of a charge sheet will continue to be a sufficient prima facie evidence ignoring the judgment. It is also to be noted that it is nobody's case that as against Ext.B1 judgment an appeal had been preferred and Ext.B1 judgment had not attained the finality. In such circumstances and in view of the discussion as above we are of the considered view that the Tribunal ought not to have held that Ext.B3 charge sheet is sufficient prima facie evidence of negligence of the indictee therein viz., the 4[th] respondent before the Tribunal in driving the offending vehicle ignoring Ext.B1 judgment.”_ **13.** Therefore, relying upon Pazhaniammal (supra) itself and garnering support from Mohankumar (supra), it is safe to conclude that a final report would not vouch the negligence of the driver/respondent, if the trial ends in acquittal and the M.A.C.A.No.3076 of 2015 **==> picture [28 x 8] intentionally omitted <==** judgment of acquittal – in this case Ext.B1 – is produced and marked. In the result, this appeal fails for the reason of not establishing the accident having occurred as claimed in the original petition and also, the negligence of the respondent/driver. The appeal will stand dismissed. **Sd/C.JAYACHANDRAN, JUDGE** ak