The Oriental Insurance Company Ltd. v. Rupesh, Jiby Paul and Reji Thomas

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 16TH DAY OF FEBRUARY 2016 / 27TH MAGHA, 1937 **MACA.No. 1242 of 2011** AGAINST THE AWARD IN OP(M.V)NO.2007/2003 of ADDL.M.A.C.T., TRICHUR DATED 31-12-2010 ## **APPELLANT** /3RD RESPONDENT IN THE OP THE ORIENTAL INSURANCE COMPANY LTD. ANGAMALY, REPRESENTED BY THE AUTHORIZED SIGNATORY, THE ORIENTAL INSURANCE CO.LTD., REGIONAL OFFICE, METRO PALACE, ERNAKULAM NORTH, KOCHI-18. BY ADV.SRI.A.R.GEORGE RESPONDENTS/CLAIMANT & RESPONDENTS 1&2 IN THE O.P: 1. RUPESH, S/O.VARGHESE, AKKARAPARAMBAN HOUSE, ADATT VILLAGE, - DESOM, THRISSUR TALUK. 2. JIBY PAUL, KOORAMTHAZHATH PARAMBIL HOUSE, PULIYANAM P.O., ANGAMALY. 3. REJI THOMAS, S/O.THOMAS, PALIKUDATH HOUSE, PEECHINIKADU, PULIYANAM, ANGAMALY. R1 BY ADV. SRI.M.B.PRAJITH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ------------------------------- M.A.C.A.No.1242 of 2011 -------------------------------Dated 16[th] February, 2016 ## **JUDGMENT** ## **Ravikumar, J.** This appeal is directed against the award dated 31.12.2010 in O.P.(M.V)No.2007 of 2003 passed by the Additional Motor Accidents Claims Tribunal, Thrissur. The appellant was the 3[rd] respondent and the first respondent herein was the claimant, therein. 2. Before adverting to the facts involved in this case it is relevant to refer to a Constitution Bench decision of the Hon'ble Apex Court in **M. S. Sheriff and another** v. **State of Madras (AIR 1954** **SC 397).** The Supreme Court held therein that no hard and fast rule could be laid down but the possibility of conflicting decisions in the civil and criminal Courts is not a relevant consideration. The Apex Court went on to held as follows:- “The law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other or even relevant, except for certain limited purposes, such as sentence or damages.” The reason for referring to the said decision would be revealed on a glance at the manner in which the Tribunal considered and answered the question of negligence. M.A.C.A.No.1242 of 2011 2 3. The first respondent-claimant met with an accident on 23.6.2002 at about 8.30 a.m. while he was riding a motor cycle through Thrissur -Kunnamkulam road from west to east. When he reached before a firm named `Sha-Diesels' abutting the road, the second respondent took the offending vehicle, the road roller parked on the northern side of the road, on to the road without giving signal. Consequently, there occurred a collision between the motor cycle and the road roller and the first respondent sustained severe injuries. Thus, going by the case of the first respondent, the cause of the accident was the rash and negligent driving of the road roller by the second respondent and alleging as such and making averments to make the second respondent, the owner of the road roller vicariously liable and the third respondent, with whom the said road roller belonging to the second respondent was insured to indemnify the second respondent the first respondent herein/the claimant filed O.P.(M.V)No.2007 of 2003. Before the Tribunal, respondents 1 and 2 therein viz., respondents 2 and 3 herein remained ex-parte. The appellant herein/the 3[rd] respondent therein filed a written statement. In the written statement the appellant had denied the allegation of negligence levelled against the second respondent therein/3[rd] respondent herein and stated that the 2[nd] respondent was not actually driving the road roller at the time of M.A.C.A.No.1242 of 2011 3 the accident. It was specifically stated therein that the road roller was stationary for so many days before the accident on the road side at its mud portion and the accident had occurred due to the rash and negligent driving of the motor cycle by the claimant/the first respondent. But, the appellant had admitted the insurance coverage of the road roller bearing Reg.No.KL-7/AC-4684. As an abundant caution the appellant had also taken up a contention that the compensation claimed by the first respondent/the claimant under different heads are highly exorbitant and unreasonable. They also had disputed the age, occupation, income and the nature of the injuries. It is to be noted that they sought that the claimant should be put to strict proof regarding those aspects. Based on the rival pleadings the Tribunal framed the following issues for consideration:- 1. Whether the accident took place due to rash and negligent driving of the road roller by the 2[nd] respondent ? 2. Whether the petitioner is entitled to get any compensation, if so what is the quantum ? 3. Who are all liable to pay the compensation ? Relief and cost ? On the side of the first respondent/claimant he got examined one Dr.Antony (PW1) and got marked Exts.A1 to A18(b). It is to be noted that earlier, as per order in I.A.No.1459 of 2008 the appellant/3[rd] M.A.C.A.No.1242 of 2011 4 respondent was allowed to contest the matter under Section 170 of the Motor Vehicles Act. Before the Tribunal the appellant did not adduce any oral evidence, but produced Exts.B1 to B4. The Tribunal, after analysing the evidence on record and appreciating the arguments advanced, passed the impugned award finding that the accident in question had occurred due to the negligence on the part of the 2[nd] respondent therein/3[rd] respondent herein. Upon finding that the road roller which was negligently driven by the 2[nd] respondent therein belonged to the 2[nd] respondent herein and it was insured with the appellant herein the Tribunal ultimately mulcted the second respondent herein with the liability to pay the amount of compensation after holding that the second respondent herein/first respondent therein is vicariously liable. 4. Accordingly, an award granting an amount of ₹2,44,000/- as compensation was passed in favour of the first respondent herein/claimant. He was permitted to recover the same with 7% interest from the date of filing of the petition till realisation. The grievance of the appellant is that the Tribunal had entered in its finding that the accident in question had happened only due to the negligence of the 2[nd] respondent/3[rd] respondent herein, relying on Ext.A6 which is the judgment in C.C.116/2002 of the Court of Judicial M.A.C.A.No.1242 of 2011 5 First Class Magistrate-II, Thrissur and A16, a judgment of the same Court in C.C.No.478 of 2002 but, without considering Exts.B1 to B4 produced by the appellant/the 3[rd] respondent therein. It is contended that a perusal of the impugned award would reveal that the Tribunal had virtually, treated Exts.A6 and A16 as binding judgments for the purpose of arriving at a conclusion regarding the negligence on the part of the 2[nd] respondent. Evidently, the contention is that in the light of the settled position of law the judgment of the criminal court viz., Exts.A6 and A16 could not have been treated as binding and the question regarding the negligence, which is essential for passing an award in a motor accident claim, should be considered based on the evidence available before the Tribunal. To buttress the said contention the learned counsel for the appellant relied on a decision of the Hon'ble Apex Court in **Seth Ramdayal Jat** v. **Laxmi Prasad (AIR 2009 SC 2463).** 5. We have heard the learned counsel for the appellant and also the learned counsel appearing for the first respondent. 6. Virtually, as per order dated 8.8.2011 notice to the 2[nd] and 3[rd] respondents was dispensed with. On going through the grounds raised in this appeal it is evident that challenge against the quantum of compensation awarded is taken only in a vague manner and at the M.A.C.A.No.1242 of 2011 6 same time, the main challenge is made against the judgment and award on the ground that the Tribunal for deciding the question of negligence on the part of the 2[nd] respondent relied solely on Exts.A6 and A16 judgments of the criminal courts. As noticed hereinbefore, it is specifically contended that instead of relying on Exts.A6 and A16 judgments of the criminal court the Tribunal ought to have appreciated the evidence on record before it and ought to have independently arrived at the conclusion on the question of negligence. The appellant has also taken up a contention that based on the evidence on record the Tribunal ought to have found at least contributory negligence on the part of the claimant, based on Exts.B1 to B4. In the said circumstances, it is contended that the impugned judgment is founded on an erroneous appreciation of the evidence and therefore it invites appellate interference. Per contra, the learned counsel for the first respondent/the claimant contended that the Tribunal had properly appreciated the evidence and found that in the light of Exts.A6 and A16 judgments the first respondent/the claimant could not be said to be negligent and in such circumstances, the finding of the Tribunal that the accident had occurred solely due to the negligence on the part of the 2[nd] respondent, the driver of the road roller cannot be said to be illegal or perverse one inviting appellate interference. M.A.C.A.No.1242 of 2011 7 7. A careful scanning of the factual situation obtained in this case would reveal that essentially, the Tribunal awarded compensation after arriving at a clear finding that the 2[nd] respondent therein/3[rd] respondent herein was solely responsible for the accident as he was negligent. The question to be considered is whether the Tribunal arrived at such a conclusion merely by relying on Exts.A6 and A16 or whether it is an outcome of the appreciation of the entire evidence before it. In the contextual situation the position of law has to be looked into. In the light of a plethora of decisions it leaves no doubt a judgment in a criminal case would be admissible only for a limited purpose in civil proceedings. In other words, only on the basis of a judgment in a criminal case, civil proceedings or a proceedings which partake the character of, civil proceedings could not be decided though the judgment in criminal proceedings would be admissible for a limited purpose. It is also true that an acquittal or conviction in a criminal case got no evidentiary value in a subsequent civil litigation except for the limited purpose of showing that there was a trial and it resulted in acquittal or conviction, as the case may be. In other words, going by the settled position, findings of a criminal court are inadmissible in such proceedings and they cannot be relied on or on the sole basis thereof, civil proceedings could not be determined. It is this position which was M.A.C.A.No.1242 of 2011 8 settled by the Hon'ble Apex Court in the decision in **Seth Ramdayal Jat's** case (supra). We have already found that the Constitution Bench in **M. S. Sheriff's** case (supra) held that no hard and fast rule could be laid down regarding the binding nature of judgments of a civil court in a proceedings before criminal court and vice-versa and found that the possibility of conflicting decisions in the civil and criminal Courts is not a relevant consideration. The passage extracted from the said decision hereinbefore would give the reasoning for arriving at such a conclusion. The Apex Court found that a perusal of the Evidence Act would reveal that it expressly refrain from making the decision of one Court binding on the other or even relevant except for limited purposes. Bearing in mind the position thus settled we will appreciate to consider the challenge against the award. 8. There can be no doubt with respect to the position that in an application under Section 166 of the Motor Vehicles Act the entitlement of the compensation by the claimant would depend upon the pleadings and proof with respect to the negligence. We may hasten to add that the strict rules relating pleadings and standard of proof are not required in proceedings from a Claims Tribunal. Evidently, in this case, the first respondent/the claimant pleaded that the accident in which he sustained the injuries and for which he filed the claim petition M.A.C.A.No.1242 of 2011 9 seeking compensation had occurred solely due to the rash and negligent act in the driving by the 2[nd] respondent, the driver of the road roller. It is essentially to prove the same that he produced Exts.A6 and A16. The other documents mainly produced by the first respondent/claimant are not relevant for the purpose of deciding the question of negligence. Evidently, Exts.B2 to B4 were produced by the appellant for the purpose of establishing negligence on the part of the first respondent/claimant. In the circumstances, it is relevant to refer to the said documents. Ext.A6 is the judgment of the Court of Judicial First Class Magistrate-II, Thrissur in C.C.No.116 of 2003. The complaint from which the same had originated was filed by the first respondent/claimant and the accused therein was the 2[nd] respondent before the Tribunal/the 3[rd] respondent herein. The accused therein was accused of commission of offences punishable under Sections 279 & 338 of the Indian Penal Code in respect of the very same incident which led to the institution of this claim petition that occurred on 23.6.2002 at about 8.30 a.m. Evidently, before the criminal Court the driver of the road roller/the 3[rd] respondent herein pleaded guilty and consequently, the Court held him guilty, convicted and sentenced to pay a fine of ₹1,000/- each and in default to undergo simple imprisonment for 30 days each, under Sections 279 and 338, IPC. Ext.A16 is also another M.A.C.A.No.1242 of 2011 10 judgment of the same court, in C.C.No.478 of 2002. Evidently, that was also registered in respect of the same occurrence that is, the accident which occurred on 23.6.2002 at 8.30 a.m. Obviously, in that case, the accused was the first respondent herein/the claimant before the Tribunal and he was accused of commission of offences punishable under sections 279 and 338, IPC. A perusal of Ext.A16 would reveal that the scene mahazar which is Ext.B3 herein was produced therein as Ext.P1 besides Ext.P2 petition. On the side of the complainant/State PW1 to PW3 were examined. Vrtually, they turned hostile to the case of the prosecution. A perusal of Ext.A16 would reveal that the trial court dispensed with the questioning under Section 313 Cr.P.C. as no incriminating materials were brought out against the accused therein by the prosecution. Consequently, the claimant/first respondent herein was found not guilty and acquitted under Section 255(1) Cr.P.C. A scanning of the impugned award would reveal that for entering into a finding against issue No.1 the Tribunal had considered Exts.B2 to B4 as also Exts.A6 and A16. But, at the same time, a close scrutiny of the same would reveal that no detailed discussion with respect to the evidentiary value of Exts.B2 to B4 was made in the impugned award and essentially, the Tribunal had arrived at the finding of negligence on the part of the driver of the road roller/the 3[rd] respondent herein relying M.A.C.A.No.1242 of 2011 11 on Exts.A6 and A16. In the light of the decisions referred to hereinbefore there can be little doubt with respect to the fact that a Claims Tribunal when required to determine the question of negligence for the purpose of deciding entitlement of the claimant in a petition filed under Section 166 of the Motor Vehicles Act cannot arrive at a finding on that issue only on the basis of a judgment of the criminal Court. In other words, in the light of the decisions referred above, apart from taking into account the fact that the 3[rd] respondent herein, the driver of the road roller stood the trial in a case accusing him of commission of offence, punishable under Sections 279 and 338, IPC in respect of the same occurrence and that it resulted in his conviction the findings thereon ought not to have been relied on by the Tribunal any further. In other words, from Ext.A6 the Tribunal ought to have taken note of the fact that the 2[nd] respondent before it/3[rd] respondent herein, stood a trial for the charge of commission of offences punishable under Sections 279 and 338, IPC arising from the same occurrence and that it ended in his conviction. From Ext.A16 the Tribunal could have taken note of the fact that the claimant/first respondent herein also stood the trial for the charge of commission of offences punishable under Sections 279 and 338, IPC that too, in respect of the same occurrence, but it ended in his acquittal. In the light of the aforementioned decisions the Tribunal M.A.C.A.No.1242 of 2011 12 ought not to have arrived at a finding on the question of negligence solely because as per Ext.A6 the driver of the road roller was convicted and as per Ext.A16 the claimant was acquitted. Going by the settled position instead of entering into finding merely based on Ext.A6 the Tribunal ought to have considered that question on appreciation of the evidence on record before it independently. But then, it is a fact apart from those two documents viz., Exts.A6 and A16 judgments of the criminal Court the other materials available on record for arriving at a finding regarding the negligence are respectively the F.I.R. in Crime No.332 of 2002 of Traffic Police Station Thrissur (Ext.B2), the scene mahazar prepared in the said crime (Ext.B3) and the charge laid in the said crime (Ext.B4). 9. The principal object of the FIR, from the point of view of the informant, is that it will set the criminal law in motion and from the point of view of the investigating officer, is to obtain information about the alleged criminal activities so as to enable him to take suitable steps to trace and book the guilt. With respect to the evidentiary value there can be little doubt with respect to the position that it is not a substantive peace of evidence. Certainly, it can be used to contradict or corroborate the maker thereof in the manner provided under the Evidence Act, 1982. (See the decision of the Hon'ble Apex Court in M.A.C.A.No.1242 of 2011 13 ## **Madhusudan Singh** v. **State of Bihar** reported in **((1996) 11 SCC** **248)** . Apart from Ext.B2 FIR, the other documents produced on the side of the appellant are the scene mahazar (Ext.B3) and the final report (Ext.B4). Certainly Ext.B4 is the report filed in Crime No.332/2002 of Traffic Police station, Thrissur in terms of the provisions under Section 173(2) of the Code of Criminal Procedure. Ext.B3 is only a scene mahazar prepared in the same crime. It is to be noted that Ext.A16 would reveal that after laying of the final report cognizance was taken and after culmination of the trial in C.C.No.478 of 2002 the claimant was acquitted of the offences under Sections 279 and 313 IPC. This is what is obtained from Ext.A16. What is discernible from Ext.A6 is that in respect of the very same occurrence on the private complaint filed by the claimant cognizance was taken thereon and it was taken on file as C.C.No.116 of 2002 against the driver of the road roller, the third respondent herein. Ext.A6 would reveal that the particulars of the offences were read over and explained to him and thereupon he pleaded guilty. Based on his plea he was convicted and sentenced to pay a fine of Rs.1,000/- each and in default to undergo simple imprisonment for 30 days each under Sections 279 and 313 IPC. The question is in such circumstances whether the FIR and the final report in the said crime could be treated as sufficient evidence for considering the question of negligence. Ext.B2 would reveal that in the FIR the M.A.C.A.No.1242 of 2011 14 claimant was shown as the accused and Ext.B4 would reveal that after the investigation the final report was laid against him in terms of the provisions of 172(3) of Cr.P.C. But, at the same time, when once it is found that in respect of the said crime after the trial the accused concerned was acquitted necessarily the effect and impact of those two documents would pale insignificance and they cannot be used against him to hold him negligent. In this case, another crucial aspect is to be looked into. It is discernible from the claim petition itself that negligence was specifically attributed by the claimant/the first respondent herein against the driver of the road roller, who is the third respondent herein/the second respondent before the Tribunal. He has not chosen to enter appearance and to resist the application. Though the appellant herein had obtained permission under Section 170 of the M.V. Act apart from producing the FIR, scene mahazar and the final report in Crime No.332/2002 of Traffic Police station, Thrissur, no evidence whatsoever, either oral or documentary, was produced by the appellants to establish their pleadings on negligence on the part of the claimant/first respondent herein. In such circumstances, though we are of the considered opinion that the Tribunal had not gone into the matter and appreciated the evidence in an appropriate manner ultimately we are to agree with the conclusion arrived at, by the Tribunal for the foregoing reasons. In other words, we do not find any reason to overrule the M.A.C.A.No.1242 of 2011 15 finding of the Tribunal that the accident had occurred due to the negligence on the part of the second respondent therein/third respondent herein. 10. In the said circumstances, what survives for consideration is whether the appellant has made out sufficient grounds for interfering with the quantum of compensation awarded by the Tribunal. A scrutiny of the grounds raised by the appellant would reveal that virtually, no specific grounds are raised by the appellant to mount challenge against the compensation granted under different heads. We are afraid in the absence of specific sustainable grounds no interference with the quantum of compensation is permissible. In the light of the specific findings with respect to the aforesaid questions this appeal has to fail. In the result, this appeal is dismissed. There will be no order as to costs. Sd/- **C.T.RAVIKUMAR** **Judge** Sd/- **MARY JOSEPH Judge** TKS/VS // true copy // Sd/P.S. To Judge