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Kerala High Court
N.V.Manu vs K.T.Pappachan on 20 May, 2024
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
MACA NO. 4103 OF 2017
AGAINST THE AWARD DATED 07.03.2017 IN O.P(M.V) NO.1858 OF
2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM
APPELLANT/RESPONDENT:
N.V.MANU,
S/O VASU N.K, AGED 35 YEARS, NEDUCHIRAYIL HOUSE,
NEAR ALPHONE BHAVAN, ARPPOKARA, VILLONNI P.O,
KOTTAYAM, PIN-686 008
BY ADV SRI.R.SANTHOSH BABU
RESPONDENTS/RESPONDENTS:
1 K.T.PAPPACHAN,
AGED 63 YEARS, S/O THOMAS, KANJIRATHINGAL HOUSE,
CHETHY P.O, CHERTHALA, PIN-688 553
2 MOLLY PAPPACHAN,
AGED 57 YEARS, W/O.PAPPACHAN,
RESIDING AT KANJIRATHINGAL HOUSE, CHETHY P.O,
CHERTHALA, PIN-688 533
3 BENNY K.P @ THOMAS BENNY
AGED 34 YEARS, S/O.PAPPACHAN,
KANJIRATHINGAL HOUSE, CHETHY PO,
CHERTHALA, PIN-688533
BY ADV SRI.RAHUL SASI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 01.03.2024, THE COURT ON 20.05.2024
DELIVERED THE FOLLOWING:
MACA No. 4103 of 2017
-:2:-
MARY JOSEPH, J.
-----------------------
MACA No. 4103 of 2017
-----------------------
Dated this the 20th day of May, 2024
JUDGMENT
An award passed by Motor Accidents Claims Tribunal, Ernakulam (for short, 'the Tribunal') on 07.03.2017 in O.P(M.V) No.1858/2013 is assailed in the appeal on hand by the sole respondent therein, who is none other than the owner cum driver of a car bearing Registration No.KL 06 E
42.
2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioners 1 to 3 and the respondent in accordance with their status in the Original Petition.
3. The Original Petition referred to above was filed by the parents and the sole sibling of one Mr.Sandhyavu MACA No. 4103 of 2017 -:3:- seeking compensation for his death in the motor accident. According to them the motor accident was occurred when a car bearing Registration No.KL-06 E 42 dashed against the Motorcycle bearing Registration No. KL 32A 2194 ridden by him on 03.06.2013 through Chellanam-Pandikudi road due to the rash and negligent driving by it's driver. They claimed a sum of `15,00,000/- as compensation from the owner cum driver.
4. Sole respondent in his written statement denied the allegation of the petitioners that he has caused the motor accident by his rash and negligent driving of the car bearing Registration No. KL-06 E 42. The victim of the motor accident was contended as responsible for causing the motor accident by his rash and negligent driving. It was contended that the car was parked on the side of the road and that Mr.Sandhyavu was riding the motorcycle without wearing a helmet with a view to prevent any injury being caused to his head. The fitness of the motorcycle ridden by him and driving licence of Mr.Sandhyavu to ride a motorcycle at the MACA No. 4103 of 2017 -:4:- relevant time were disputed. He was alleged as intoxicated also. Amount claimed in the Original Petition as compensation was also disputed for the reason of its exorbitance. Original Petition was thus sought to be dismissed for the reasons.
5. The Tribunal raised issues based on the rival contentions of the parties as follows:
"1. Whether the death of K.P Sandhyavu occurred on account of the rash and negligent driving of the offending car bearing registration No.KL 06 E 42 by the respondent as alleged?
2. Whether the claimant is entitled to get compensation?
3. Quantum of compensation?
4. Who is liable to pay compensation to the claimant?
5. Reliefs and costs?"
6. Petitioners examined a witness as PW1 and marked Exts.A1 to A8 in evidence to substantiate their claim. A witness was examined by the respondent as RW1. Tribunal answered all issues affirmatively on the basis of the evidence adduced as above. It arrived at a sum of `26,53,000/- as the total compensation payable and directed the sole respondent MACA No. 4103 of 2017 -:5:- to deposit the same before the Tribunal in favour of the petitioners in the manner directed, alongwith interest at the rate of 9% per annum from the date of filing of the Original Petition till realisation and proportionate costs.
7. The main argument advanced by the learned counsel for the respondent was that the Tribunal's finding that the sole respondent, the owner cum driver of the car bearing Registration No.KL 06 E 42 was responsible for causing the motor accident is unfounded when it is clear from the materials relied on by the petitioners in the Original Petition itself that the victim was not holding a driving licence and was under the influence of alcohol at the relevant time while riding the motorcycle. According to him, the description in the scene mahazar marked in evidence as Ext.A7 about the lie of the vehicles involved very near to the scene of occurrence itself is sufficient to draw that Mr.Sandhyavu was riding the motorcycle and caused the motor accident.
8. According to him, it is also revealed from the scene mahazar that the car was parked on the side of the MACA No. 4103 of 2017 -:6:- road. According to him, the Tribunal lost sight of the fact that it was the motorcycle that hit on the car remaining stationary by the side of the road. According to him, the witness examined as PW1 has also spoken about contribution of the victim to the motor accident by his negligent riding of the motorcycle. An argument was also advanced that sufficient opportunity was also declined by the Tribunal to adduce evidence.
9. According to him, the Tribunal found the available evidence insufficient to draw a conclusion on negligence of the sole respondent. According to him, the victim was established from the materials available in evidence as not wearing a helmet at the relevant time of the motor accident and the head injury caused to him was reported as the cause of his death in the postmortem examination held and therefore, the Tribunal went erred in finding him also negligent and responsible for causing the motor accident.
10. The learned counsel urged furthermore that the deceased was a bachelor and the Tribunal failed to find the MACA No. 4103 of 2017 -:7:- kind of dependency the parents and the sole sibling have upon him. According to him, petitioners though alleged in the Original Petition that the victim was a mason but failed to adduce any evidence. But, the Tribunal fixed `12,000/- as his monthly income which is undoubtedly a higher sum. Compensation stood awarded by the Tribunal towards pain and sufferings is disputed for the reason that the death of the victim was instantaneous.
11. The multiplier adopted by the Tribunal for calculation of compensation is also disputed for the reason that it is not appropriate for the age of the deceased. Challenge is also raised against the quantum of compensation stood awarded by the Tribunal towards loss of love and affection and loss of estate. According to the learned counsel, for the reason that the victim was staying away from the petitioners itself, the Original Petition could have been dismissed by the Tribunal.
12. Certified copy of the judgment passed by Judicial First Class Magistrate Court-I, Kochi in C.C No.2592/2013 MACA No. 4103 of 2017 -:8:- was also produced by the petitioner much later to the filing of the appeal alongwith an application filed under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (for short 'the CPC') seeking to receive it in additional evidence. It was found sworn in the affidavit filed by the petitioner that he was acquitted by the criminal court in C.C No.2592/2013 on 15.06.2017 under Section 255(1) Cr.P.C for the reason that the prosecution failed to prove that he had driven the car in a rash and negligent manner. He sought for marking of the judgment in additional evidence and to arrive at a just and proper decision in the appeal.
13. Since an application is filed under Order XLI Rule 27 CPC and the judgment is produced, it is incumbent upon this Court to see whether the judgment is required to be received in additional evidence in the Original Petition for arriving at a proper and correct decision in the appeal on hand.
14. It is pertinent to note that the award assailed in the appeal on hand was passed by the Tribunal on MACA No. 4103 of 2017 -:9:- 07.03.2017. At the time of passing of the award, the Tribunal has relied on the oral evidence of PW1, Exts.A1 to A8 marked on his side and also the oral evidence of RW1 adduced on the side of the respondent.
15. The witness examined on the side of the petitioners was the employee of the deceased. He was examined solely to establish the occupation and monthly income of the deceased at the relevant time of his death in the motor accident. Therefore, his evidence is not required to be dealt with as this Court is only called upon to see the impropriety of the finding of the Tribunal on rash and negligent driving of the car by the sole respondent as the cause of the motor accident.
16. The Tribunal found on the basis of the evidence available before it that the motor accident was occurred due to the rash and negligent driving of the car bearing Registration No.KL 06 E 42 by the sole respondent. The Tribunal has relied on the crime registered with reference to the motor accident, the scene mahazar prepared during the MACA No. 4103 of 2017 -:10:- course of investigation conducted in the crime and the final report laid on completion of the investigation, marked in evidence respectively as Exts.A1, A7 and A3, for arriving at the finding that the sole respondent was responsible for causing the motor accident by his rash and negligent driving.
17. The sole respondent stood chargesheeted by the Investigating Officer by Ext.A3 for offences punishable under Sections 279 and 304 A of the Indian Penal Code, 1860 (for short 'IPC'). It was contended that the car was parked on the side of the road and the motorcycle dashed against it while it was stationary.
18. To establish the contention taken as above, respondent himself deposed as RW1. He filed proof affidavit in lieu of chief examination. According to him, he was driving the car through Thoppumpady-Chellanam road to Kottayam to visit his parents. On the way, he parked his car on the side of the road at Gonduparambu to have a tea. The motorcycle ridden by Mr.Sandhyavu in a rash and negligent manner and in utmost speed dashed on the car. In the MACA No. 4103 of 2017 -:11:- impact, Mr.Sandhyavu fell down, sustained injuries and died while being transported to hospital. According to him, he was not responsible for the motor accident to occur but only Mr.Sandhyavu. He has also spoken that Mr.Sandhyavu was not wearing a helmet at the relevant time and the serious head injury sustained by him was reported in the certificate of postmortem examination as the cause of his death. According to him, if Mr.Sandhyavu was wearing a helmet at the relevant time, the motor accident could have been averted by him. It was further stated that Mr.Sandhyavu was on his mobile phone at the relevant time and that has also contributed to the motor accident. According to RW1 though he had informed all those aspects to the Police, ignoring those, they registered a crime against him based only on the hearsay information furnished by none other than the brother of the deceased. According to him, the police informed him also that in cases of death in a motor accident, crime will only be registered against the person who survived the motor accident and not against the victim who died, evenif he is MACA No. 4103 of 2017 -:12:- negligent. According to him, the above aspects of the case lead him to mental depression and he was undergoing treatment for that at Medical Trust Hospital for about an year. Therefore, he was unable to pursue the matter further. According to him, he has contested the criminal case, in which he was chargesheeted for rash and negligent driving of the car, before Judicial First Class Magistrate Court-I, Kochi.
19. RW1 was cross examined with specific reference to the action taken by him on coming to know about the registration of a false case against him. According to him, on account of the mental depression developed on getting informed of the false registration of the crime against him, he could not take any action against. But, he failed to produce the medical documents with regard to his treatment at Medical Trust hospital, Kochi for mental depression at the relevant time. These aspects constrained the Tribunal not to rely on the evidence tendered by the sole respondent as RW1 and to discard it.
MACA No. 4103 of 2017-:13:-
20. Therefore, though an attempt was made by the sole respondent before the Tribunal to convince that the crime registered against him was only a foisted one, he failed in that.
21. As per the final report marked in evidence as Ext.A3, the sole respondent stood chargesheeted for offences under Sections 279 and 304 A IPC. While marking the FIR, scene mahazar and the final report, objection was also not found raised against. The Tribunal was convinced from those as well as the certificate of postmortem examination marked in evidence as Ext.A2 that the motor accident was occurred due to rash and negligent driving of the car bearing Registration No KL 06 E 42 by the sole respondent. Accordingly it answered the issue raised by it in that regard, affirmatively against the sole respondent.
22. As already stated, the certified copy of the judgment in a criminal case with reference to the motor accident taken on it's file by Judicial First Class Magistrate Court- I, Kochi on the basis of Ext.A3 is produced by the sole MACA No. 4103 of 2017 -:14:- respondent before this Court seeking to receive it in evidence. It was contended that the trial in C.C No.2592/2013 was only commenced when the Original Petition was under consideration before the Tribunal and therefore, he could not produce the judgment before the Tribunal. The judgment proposed to be received in evidence and considered in the appeal was found passed on 15.06.2017 and the accused therein who is the sole respondent in the Original Petition was found not guilty for the offences punishable under Sections 279 and 304 A IPC and was acquitted and ordered to be set at liberty after cancellation of the bail bond executed by him.
23. It is found from the judgment that PW2 and PW5 were examined in that case as ocular witnesses but the Tribunal disbelieved them. It is pertinent to note that after reaching a finding that the version of PW2 and PW5 regarding the accident corroborate, the trial court disbelieved them based on some circumstances described in the scene mahazar.
MACA No. 4103 of 2017-:15:-
24. It is true that the judgment was not passed at the relevant time when the Original Petition was considered by the Tribunal and the award assailed was passed. Admittedly the trial was commenced and continuing.
25. The question to be considered in the context is whether a finding arrived at by the Tribunal on the basis of the evidence adduced by the parties before it can be overlooked when a judgment in a criminal case acquitting him is produced for consideration after passing of the award by the Tribunal.
26. Before going to the above aspects, it is primarily important to bear in mind that the Motor Vehicles Act, 1988 (for short 'the MV Act') is a beneficial piece of legislation enacted to compensate the victim of a motor accident.
27. The evidence tendered by the witnesses relied on by the prosecution and examined before the Magistrate Court will assume relevance only when the witnesses examined before the Tribunal were cross examined with reference to those.
MACA No. 4103 of 2017-:16:-
28. In the Original Petition seeking compensation, oral evidence was not adduced by either parties. The Tribunal arrived at the finding of negligence of the driver of the allegedly offending vehicle solely relying on the final report laid in the case, marked in evidence as Ext.A3 without any objection raised against marking and consideration in the case.
29. Therefore, if reception of the judgment in evidence is permitted, the contents of the oral evidence of witnesses relied on by the prosecution in the criminal case ought to have been put to the witnesses already examined before the Tribunal and it's veracity tested. In the case on hand as already stated, witnesses were not examined before the Tribunal. Therefore, the Tribunal would be constrained to re- open the evidence before it and to permit examination of witnesses for facilitating cross examination based on the depositions of the ocular witnesses in the criminal case. If some witnesses had already been examined before the Tribunal, the remand of the case after reception of the MACA No. 4103 of 2017 -:17:- judgment in question in additional evidence would have served some purpose.
30. In the case on hand the ocular witnesses have spoken about negligence of the accused, who was driving the offending vehicle, but, the Magistrate court after delving on those, disbelieved them and acquitted the accused granting benefit of doubt. The court only held that the prosecution failed to prove rash and negligent driving by the accused beyond reasonable doubt, which proof is not envisaged under Section 166 MV Act to be established for fastening liability on the driver of the allegedly offending vehicle. Evidence recorded in a criminal case without it being tested in cross examination is not liable to be relied on by the Tribunal in an Original Petition seeking compensation. The uncontested final report laid against the driver of the offending vehicle itself can form basis for the Tribunal for arriving at a finding on rash and negligent driving by the driver in a claim petition seeking compensation.
MACA No. 4103 of 2017-:18:-
31. It is also relevant to bear in mind that the proof of negligence required in a claim petition filed under Section 166 of the MV Act is only preponderance of probabilities whereas in a criminal case, there must be evidence to establish the offence of rash and negligent driving beyond reasonable doubt. Therefore, this Court would say that the finding of the Tribunal is solely confined to the evidence adduced by the parties before it and the judgment passed in a criminal case acquitting the accused cannot have any bearing. The judgment proposed to be relied on itself says that the ocular witnesses examined as PWs 2 and 5 were disbelieved by the criminal court that tried the case, for discrepancies crept in their depositions. The Magistrate Court did not find that Ext.A3 was laid on account of collusion of the victim of the motor accident and the investigating officer. A finding was also not reached by the Magistrate Court that the case is a foisted one and the witnesses were planted into it.
32. It is noticed on a scrutiny of the impugned award that the Tribunal found the driver of the offending vehicle MACA No. 4103 of 2017 -:19:- rash and negligent in driving it based on the uncontested final report laid against him by the police on completion of the investigation in the criminal case registered with reference to the motor accident and marked in evidence as Ext.A3 and as held by this Court in New India Assurance Co.Ltd. V.Pazhaniammal [2011 (3) KLT 648] it can be acted upon as prima facie evidence of negligence in a petition seeking compensation filed under Section 166 of the MV Act.
33. This Court finds in the context of the case that judgment proposed to be received in evidence is totally irrelevant and therefore, I.A No. 01/2021 filed for receiving it in additional evidence is dismissed. The award assailed deserves to be uninterfered with and therefore maintained.
Appeal fails for the reasons and is dismissed.
Sd/-
MARY JOSEPH, JUDGE.
NAB