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.
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MACA No. 4103 of 2017
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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
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
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
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
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
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
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
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
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
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
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.
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
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.
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.
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
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.
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
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
