Sunil Kumar v. Maya B and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941** ## **MACA.No.1268 OF 2014** **AGAINST THE AWARD IN OP(MV)NO.1771/2003 DATED 30-11-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL** ## **APPELLANT/PETITIONER :** **SUNIL KUMAR, AGED 38 YEARS,S/O.PURUSHOTHAMAN, RESIDING AT SUBHASHINI MANDIRAM, (PADAYAMNAVILA), KAKKODU KURAKKANNI DESOM, VARKALA VILLAGE, THIRUVANANTHAPURAM.** ## **BY ADV. SRI.P.S.RAMU** ## **RESPONDENTS/RESPONDENTS:** - **1 MAYA B, W/O.BABU, RESIDING AT RAMANVILA VEEDU, PUTHENCHANTHA VARKALA P.O., PIN - 695 141, THIRUVANANTHAPURAM.** - **2 D.VIJAYAN,S/O.DAMODARAN, RESIDING AT KODEKKAKAM VEEDU, THACHANKONAM, VARKALA P.O., PIN - 695 141, THIRUVANANTHAPURAM. (DIED)** - **3 M/S.NEW INDIA ASSURANCE CO.LTD BRANCH OFFICE, NEAR MUNICIPAL BUS STAND, ATTINGAL, THIRUVANANTHAPURAM - 695 101.** - ***ADDL. R4 LATHIKA, W/O.DAMODARAN, KODEKKAKAM VEEDU, THACHANKONAM, VARKALA P.O. THIRUVANANTHAPURAM PIN - 695 141** - ***ADDL. R5 VIJESH, S/O.D.VIJAYAN, KODEKKAKAM VEEDU, THACHANKONAM, VARKALA P.O. THIRUVANANTHAPURAM, PIN - 695 141** - ***ADDL. R6 VIDYA, D/O.D.VIJAYAN, KODEKKAKAM VEEDU, THACHANKONAM, VARKALA P.O. THIRUVANANTHAPURAM PIN - 695 141** - **ADDL.R4 TO R6 IMPLEADED VIDE ORDER DATED 18/2/20 IN I.A.NO.1/2019.** **R3 BY ADV. SRI.LAL GEORGE R4 TO R6 BY ADV.SMT.LIJI J VADAKKEDAM** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.1268 OF 2014** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.1771 of 2003 on the file of the Motor Accidents Claims Tribunal, Attingal, 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 30.08.2003, while he was riding a motorcycle bearing registration No.KL16/247. Going by the averments in the claim petition, while the appellant was riding the motorcycle along the public road between Janardhanapuram-Kurakkanni from east-west, a lorry bearing registration No.KL-01/F-6282 owned by the 1[st] respondent, driven by the 2[nd] respondent and insured with the 3[rd] respondent, which came from the opposite direction in excessive speed, in a rash and negligent manner, hit against the motorcycle. In the accident, the appellant sustained grievous injuries. 2. Before the Tribunal, the 1[st] respondent owner and the 2[nd] respondent driver did not appear. 3. The 3[rd] respondent insurer filed written statement **MACA.No.1268 OF 2014** **3** admitting insurance coverage of the lorry involved in the accident; however, denying the negligence alleged against its driver. The insurer contended that the appellant has to prove the accident by adducing reliable evidence and that, the claim petition is bad for non-joinder of necessary parties, since the registered owner and insurer of the motorcycle were not made parties to the proceedings. The insurer further contended that the accident occurred due to the rash and negligent riding of motorcycle by the appellant, who sustained only minor injuries. 4. Before the Tribunal, Exts.A1 to A17 were marked on the side of the appellant/claimant and the doctor, who treated the appellant, was examined as PW1. The respondents have not chosen to adduce any oral or documentary evidence. Exts.X1 and X2 medical records were marked as court exhibits. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent riding of motorcycle by the appellant and not on account of the rash and negligent driving of lorry by the 2[nd] respondent driver, **MACA.No.1268 OF 2014** **4** as alleged in the claim petition. The Tribunal was also doubtful as to whether lorry bearing registration No.KL01/F-6282 was involved in the accident. Accordingly, the claim petition was dismissed. 6. Feeling aggrieved by the dismissal of the claim petition, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant and also the learned Standing Counsel for the 3[rd] respondent insurer. Despite service on notice, none appears for the 1[st] respondent and additional respondents 4 to 6. 8. The issue that arises for consideration in this appeal is as to whether any interference is warranted on the impugned award, whereby the claim petition stands dismissed on a finding that the appellant sustained injuries not in the motor accident involving lorry bearing Registration No.KL-01/F-6282. 9. 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 **MACA.No.1268 OF 2014** **5** 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; “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. **MACA.No.1268 OF 2014** **6** 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 (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 **MACA.No.1268 OF 2014** **7** 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.” ## 10. 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 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. 11. 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 and further that, the standard to be followed in such case is one of preponderance of probability rather than one of proof **MACA.No.1268 OF 2014** **8** 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. 12. The document marked as Ext.A2 is a copy of the FIR in Crime No.394/2003 of Varkala Police Station and Ext.A3 is a copy of scene mahazar. Ext.A4 is the AMVI report and Ext.A5 is the charge sheet in which the driver of the lorry was charge sheeted by police for offences punishable under Sections 279, 333 and 337 of the Indian Penal code. 13. 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 **MACA.No.1268 OF 2014** **9** 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 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 **MACA.No.1268 OF 2014** **10** 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 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 **MACA.No.1268 OF 2014** **11** 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.” 14. 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 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 **MACA.No.1268 OF 2014** **12** 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 fact, the Tribunal cannot stop the proceedings there, but shall make an endevour to discover the fact by calling for additional materials from parties. 15. In view of the law laid down in **Pazhaniammal's case supra** , production of Ext.A5 charge sheet is prima facie sufficient evidence of negligence on the part of the driver of the lorry for the purpose of a claim under Section 166 of the Motor Vehicles Act. If police charge sheet does not satisfy the judicial conscience, the Tribunal should have called upon the claimant to adduce oral evidence to establish the alleged accident and also the negligence of the driver of the offending vehicle. 16. In view of the law laid down in the decisions referred to supra, the reasoning of the Tribunal in **MACA.No.1268 OF 2014** **13** dismissing the claim petition filed by the appellant/claimant cannot be sustained. In such circumstances, this appeal is disposed of by setting aside the impugned award of the Tribunal and the matter is remanded to the Tribunal for reconsideration, after affording an opportunity to both sides to adduce further evidence. 17. The appellant and the 3[rd] respondent insurer shall appear before the Tribunal on **25.03.2020** . Since the claim petition is of the year 2003, the Tribunal shall finally dispose of the matter, as expeditiously as possible, at any rate, within a period of three months from the date of appearance of the parties. Registry shall immediately return LCR to the Tribunal. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/27/2