Surendran v. C. Paul Raj & Ors. (MACA No. 2412 of 2012)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 20TH DAY OF MARCH 2018 / 29TH PHALGUNA, 1939** **MACA.NO. 2412 OF 2012** **AGAINST THE AWARD IN O.P.(M.V.) NO.2001/2005 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, NEYYATTINKARA DATED 21-04-2012** **----------------------** ## **APPELLANT(S)/APPLICANT :** **---------------------** **SURENDRAN,S/O.KESAVAN, M.S.BHAVAN, MUKKOLA, VENGANOOR DESOM, VIZHINJAM VILLAGE, THIRUVANANTHAPURAM.** **BY ADV.SRI.G.SUDHEER** **RESPONDENT(S):** **--------------** **1. C.PAUL RAJ, S/O.CHELLAN, PATTATHUVILA VADAKKEY PULIKKOTHUVILA VEEDU, VILAVANCODE, KANYAKUMARI DISTRICT, TAMILNADU.** **2. S.ALBERT, S/O.SABARIAR KUTTY, MANNONIVILA VADAKKEPUTHEN VEEDU, KARODE P.O., THIRUVANANTHAPURAM DISTRICT-695001.** **3. THE NEW INDIA ASSURANCE COMPANY 2ND FLOOR, SWADESHABHIMANI COMPLEX, NEAR KSRTC BUS STAND, NEYYATTINKARA, REPRESENTED BY IT'S DIVISIONAL MANAGER-695001.** **R1 & R2 BY ADV. SMT.K.SUJA KUMARI R3 BY ADVS. SRI.LAL K.JOSEPH** **SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J.** **-----------------------M.A.C.A. No.2412 of 2012 ---------------------------------Dated this the 20[th] day of March, 2018** ## **J U D G M E N T** This appeal is preferred against the award in O.P.(M.V.) No.2001 of 2005 of the Motor Accidents Claims Tribunal, Neyyattinkara by the injured. Appellant sustained injuries in a motor accident and the learned tribunal dismissed the claim petition. Being aggrieved by that, the injured preferred this appeal. Appellant's case in the lower court was that on 25.05.2004 while he was walking along the Puthuval-Seashore Panchayat road, a coastal road south to Paruthiyoor- Pozhikkara Public road, a lorry KL-02/A-144 driven in a rash and negligent manner from north to south direction and the side body of the lorry hit on the head of the appellant. As a result, he sustained serious injuries. Immediately he was removed to Taluk Hospital, Neyyattinkara and treated there. Hence he approached the tribunal for getting compensation. 2. In the lower court, the driver and owner of ## M.A.C.A. No.2412 of 2012 2 the vehicle were set exparte. The insurer admitted the insurance of the vehicle but disputed the accident. Appellant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A11. Copy of the policy was marked as Ext.B1. 3. Learned counsel appearing for the appellant contended that the appellant sustained serious injuries in the accident and he is permanently disabled. The injuries were sustained due to the hitting of the body of the lorry on the head of the appellant. Pozhiyoor Police registered a crime and after completing investigation laid charge before the Court. Considering the probability of the injury the appellant is entitled to get just amount as compensation. 4. Learned counsel appearing for the insurer contended that the rash and negligent driving of the driver of the vehicle was not proved and the injuries were sustained not in a road accident. The burden of proof is upon the claimant to prove the rash and negligent act of the driver of the vehicle. When there is no evidence to ## M.A.C.A. No.2412 of 2012 3 prove that point, the mode of happening of the accident and the discrepancy in the wound certificate and the charge sheet itself is a prima facie document to disbelieve the appellant. ## 5. This Court in **New India Assurance Co. Ltd. v. Pazhaniammal [2012 ACJ 1370]** held as follows: 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 section 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 does 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 Tribunal 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 section 166 of the Motor Vehicles Act,1988. ## 6. Even though, Ext.A3 charge sheet is ## produced before this Court, the other evidence with M.A.C.A. No.2412 of 2012 4 regard to the occurrence is not supporting A3, final report. It is an admitted fact that the appellant filed a complaint before the Judicial First Class Magistrate Court, Neyyattinkara which was forwarded to Pozhiyoor Police for investigation on the basis of information received from the Judicial First Class Magistrate Court, Neyyatinkara Pozhiyoor Police registered Crime No.178/2004 under Sections 279 and 337 of IPC. Ext.A1 is the FIR and Ext.A3 is the certified copy of the Final Report. In this case, respondent/insurer contended that no such accident was occurred as alleged by the claimant. When the accident is disputed by the respondent, it is the primary duty of the appellant to prove the rash and negligent driving of the vehicle. 7. Burden of proof in a case has two distinct meanings, namely, (i) as a matter of law and pleadings, and (ii) as a matter of adducing evidence. According to Section 101 of the Evidence Act it deals with Law and pleading but Sec.102 about adducing evidence. The first remains constant but the second shifts. In a claim M.A.C.A. No.2412 of 2012 5 application, under Section 166 of the Motor Vehicles Act, 1988, the burden of proof, in the first sense, certainly lies on the claimant. If he examines himself and his witness, if any, and the evidence is found acceptable, then onus shifts on the tortfeasor to prove those circumstances, which dislodge the assertions of the claimant. If the tortfeasor fails to prove before the Court any fact or circumstance which tends to affect the evidence led by the claimant, the claimant would be entitled to ask the Court to hold that he has established the case and on that basis to award just compensation. It would, thus, appear that the legal burden, as a matter of law and pleadings remains constant on the claimant, but the burden as a matter of adducing evidence changes from claimant to tortfeasor during trial. 8. There was no oral evidence from the side of the appellant. Ext.A2 is the certified copy of the Mahazar. It shows that the road has a width of 2.50 metres which lies north to south. The lie of the road is straight 40 metres towards north and towards 10 metres towards ## M.A.C.A. No.2412 of 2012 6 south. The width of the lorry was 2.5 metres. There is some probability in the alleged incident but the medical report is not supporting the claim of the petitioner. Ext.A4 is the wound certificate issued from Taluk Hosptial, Neyyattinakara. It shows that the claimant was examined on 09.06.2004 but the time of accident is not mentioned. The alleged cause of injury shown is that on 25.05.2004 at 7.45 a.m, the door of the lorry hit on his head and he sustained injury. The Medical Officer incharge of the hospital recorded the injury Scalp near forehead 20x10 c.m bone deep. In this context, I have examined the discharge card issued from Taluk Hospital, Neyyanttinkara which shows that the appellant was admitted in the Taluk Hospital on 25.05.2004 and discharged on 07.06.2004. The injury noticed is on the scalp. The wound was found sutured. If that be the position, how he obtained Ext.A4 was not stated by the appellant. The alleged cause of injury in Exts.A4 and A7 are inconsistent and contradictory to each other. A perusal of the averments in the claim petition and the M.A.C.A. No.2412 of 2012 7 injury mentioned in the wound certificate and discharge card are inconsistent and not corroborating the story stated by the claimant. If that be the position, even though other documents were produced in the lower court, the learned tribunal rightly analysed the evidence and dismissed the claim petition. I find no illegality in the above finding. There is no merit in this appeal and it is dismissed accordingly. Sd/- **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge NS