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10. In New India Assurance Co.Ltd. v. Pazhaniammal and
Others (2011(3) KHC 595), this Court held that as a general rule,
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. In the said decision, it was also held that if any one of the
parities do not accept such charge sheet, the burden must be on such
party to adduce oral evidence and 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. It was further held that
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.
11. The evidence of RW1, retired Sub Inspector, shows that he
registered Exhibit A1 FIR in connection with the accident and conducted
the investigation. RW2 was the Sub Inspector of Pandalam Police Station
on 10.07.2010 and his evidence shows that he filed Exhibit B3 final
report in Crime No. 711 of 2010 of Pandalam Police Station as motor
occurrence. In Exhibit B3, it is stated that the accident occurred while
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the deceased was overtaking another lorry in his maruti car and when he
lost control of the vehicle. On the basis of Exhibit B3 and the evidence
of RWs1 and 2, the learned counsel for the appellant insurance company
argued that there was no negligence on the part of the 2 nd respondent,
driver of the lorry and that the evidence of PWs 4 and 5 regarding the
occurrence cannot be relied upon.
12. The evidence of PW3 shows that he was the Circle Inspector
of Pandalam Police Station on 20.06.2014 and that he conducted further
investigation in Crime No. 711 of 2010 of Pandalam Police Station after
obtaining order from the jurisdictional Magistrate.
13. PW2 was the Circle Inspector of Pandalam Police Station on
25.05.2015 and his evidence shows that he filed Exhibit A5 charge sheet
against the 2nd respondent for the offences under Sections 279 and
304A IPC after completing the further investigation. It is pertinent to
note that no occurrence witness was examined before the Tribunal from
the side of the respondents to challenge the conclusion of the
Investigating Officer in Exhibit A5 charge sheet against the 2 nd
respondent, driver of the lorry.
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14. The decision of the Hon'ble Supreme court in Mathew
Alexander v. Muhammed Shafi (2023 INSC 621) shows that strict
proof of an accident caused by a particular vehicle in a particular manner
need not be established by the claimants and that the claimants need
only to establish their case on the touchstone of preponderance of
probabilities. In the said case, it was also held that the standard of proof
beyond reasonable doubt cannot be applied while considering the
petition seeking compensation on account of death or injury in a road
traffic accident. Therefore, on a careful re-appreciation of the available
evidence, I find no reason to disagree with the finding of the Tribunal
that the accident occurred because of the negligence on the part of the
2nd respondent driver of the lorry.
15. It is brought to my notice that the Tribunal has summoned
the case diary in Crime No. 711 of 2010 of Pandalam Police Station and
marked portions of the said case diary in evidence as Exhibits B1 and B2
while examining RW1 by ignoring the objection raised by the counsel for
the petitioners. Exhibit B1 is the case diary proceedings dated 12.7.2010
and Exhibit B2 is the case diary proceedings dated 11.07.2010. Section
172 Cr.P.C reads thus:
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172. Diary of proceedings in investigation.
(1)Every police officer making an investigation under this Chapter
shall day by day enter his proceedings in the investigation in a
diary, setting forth the time at which the information reached him,
the time at which he began and closed his investigation, the place
or places visited by him, and a statement of the circumstances
ascertained through his investigation.
[(1A) The statements of witnesses recorded during the course of
investigation under Section 161 shall be inserted in the case diary.
(1-B) The diary referred to in sub-section (1) shall be a volume
and duly paginated.]
(2)Any Criminal Court may send for the police diaries of a case
under inquiry or trial in such Court, and may use such diaries, not
as evidence in the case, but to aid it in such inquiry or trial.
(3)Neither the accused nor his agents shall be entitled to call for
such diaries, nor shall he or they be entitled to see them merely
because they are referred to by the Court; but, if they are used by
the police officer who made them to refresh his memory, or if the
court uses them for the purpose of contradicting such police
officer, the provisions of section 161 or section 145, as the case
may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply.
16. It cannot be disputed that summoning and marking potions of
the case diary in evidence is a clear violation of Section 172 Cr.P.C and
in view of sub-clause 2 of Section 172, which empowers only the
criminal court to send for the police diaries of a case under inquiry or
trial in such court, the Tribunal is not justified in summoning the case
diary for the purpose of an inquiry under Section 168 of the Motor
vehicles Act.
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17. In Balakram v. State of Uttarakhand, (2017) 7 SCC 668 ,
the Honourable Supreme Court held as follows in paragraphs 15 and 16:
"15. The police diary is only a record of day-to-day investigation made
by the investigating officer. Neither the accused nor his agent is entitled to
call for such case diary and also are not entitled to see them during the course
of inquiry or trial. The unfettered power conferred by the statute under
Section 172(2) CrPC on the court to examine the entries of the police diary
would not allow the accused to claim similar unfettered right to inspect the
case diary.
16. This Court in Mukund Lal v. Union of India [Mukund Lal v. Union of
India, 1989 Supp (1) SCC 622 : 1989 SCC (Cri) 606 : AIR 1989 SC 144] ,
while considering the question relating to inspection of the entries made in
the case diary by the accused has observed thus : (SCC pp. 626-28, paras 3-
4)
"3. ... We are of the opinion that the provision embodied in sub-section
(3) of Section 172 CrPC cannot be characterised as unreasonable or
arbitrary. Under sub-section (2) of Section 172 CrPC the court itself has
the unfettered power to examine the entries in the diaries. This is a very
important safeguard. The legislature has reposed complete trust in the
court which is conducting the inquiry or the trial. It has empowered the
court to call for any such relevant case diary; if there is any
inconsistency or contradiction arising in the context of the case diary
the court can use the entries for the purpose of contradicting the police
officer as provided in sub-section (3) of Section 172 CrPC. Ultimately
there can be no better custodian or guardian of the interest of justice
than the court trying the case. No court will deny to itself the power to
make use of the entries in the diary to the advantage of the accused by
contradicting the police officer with reference to the contents of the
diaries. In view of this safeguard, the charge of unreasonableness or
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arbitrariness cannot stand scrutiny. The petitioners claim an unfettered
right to make roving inspection of the entries in the case diary
regardless of whether these entries are used by the police officer
concerned to refresh his memory or regardless of the fact whether the
court has used these entries for the purpose of contradicting such police
officer. It cannot be said that unless such unfettered right is conferred
and recognised, the embargo engrafted in sub-section (3) of Section 172
CrPC would fail to meet the test of reasonableness. For instance in the
case diary there might be a note as regards the identity of the informant
who gave some information which resulted in investigation into a
particular aspect. Public interest demands that such an entry is not made
available to the accused for it might endanger the safety of the
informants and it might deter the informants from giving any
information to assist the investigating agency, as observed in Mohinder
Singh v. Emperor [Mohinder Singh v. Emperor, 1931 SCC OnLine Lah
454 : AIR 1932 Lah 103] : (SCC OnLine Lah para 42)
'42. ... the accused had no right to insist upon a police witness
referring to his diary in order to elicit information which is
privileged. The contents of the diary are not at the disposal of the
defence and cannot be used except strictly in accordance with the
provisions of Sections 162 and 172 CrPC. [Section 172] shows
that a witness may refresh his memory by reference to them but
such use is at the discretion of the witness and the Judge, whose
duty it is to ensure that the privilege attaching to them by statute
is strictly enforced.'
***
4. The public interest requirement from the standpoint of the
need to ensure a fair trial for an accused is more than sufficiently
met by the power conferred on the court, which is the ultimate
custodian of the interest of justice and can always be trusted to
be vigilant to ensure that the interest of accused persons standing
the trial, is fully safeguarded."
18. In Sidharth v. State of Bihar [(2005) 12 SCC 545], the
Honourable Supreme Court held in para 27 as follows:
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"27. ... But if the entire case diary is made available to the
accused, it may cause serious prejudice to others and even affect the
safety and security of those who may have given statements to the
police. The confidentiality is always kept in the matter of criminal
investigation and it is not desirable to make available the entire case
diary to the accused. In the instant case, we have noticed that the entire
case diary was given to the accused and the investigating officer was
extensively cross-examined on many facts which were not very much
relevant for the purpose of the case. The learned Sessions Judge
should have been careful in seeing that the trial of the case was
conducted in accordance with the provisions of CrPC. "
19. While considering the scope of Section 172(3) Cr.P.C with
reference to Section 145 of the Indian evidence Act, the Honourable
Supreme Court in Malkiat Singh v. State of Punjab [(1991) 4 SCC
341], observed as follows in para 11:
"11. It is manifest from its bare reading without subjecting to detailed and
critical analysis that the case diary is only a record of day-to-day investigation
of the investigating officer to ascertain the statement of circumstances
ascertained through the investigation. Under sub-section (2) the court is
entitled at the trial or enquiry to use the diary not as evidence in the case, but
as aid to it in the inquiry or trial. Neither the accused, nor his agent, by
operation of sub-section (3), shall be entitled to call for the diary, nor shall he
be entitled to use it as evidence merely because the court referred to it. Only
right given thereunder is that if the police officer who made the entries in the
diary uses it to refresh his memory or if the court uses it for the purpose of
contradicting such witness, by operation of Section 161 of the Code and
Section 145 of the Evidence Act, it shall be used for the purpose of
contradicting the witness i.e. investigating officer or to explain it in re-
examination by the prosecution, with permission of the court. It is, therefore,
clear that unless the investigating officer or the court uses it either to refresh
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the memory or contradicting the investigating officer as previous statement
under Section 161 that too after drawing his attention thereto as is enjoined
under Section 145 of the Evidence Act, the entries cannot be used by the
accused as evidence."
20. It is pertinent to note that while cross-examining PWs 2 and
3, the learned counsel for the insurance company has not put any
question regarding the statements under Section 161 Cr.P.C of CWs 1 to
5 cited as occurrence witnesses in Exhibit A5 charge sheet against the
2nd respondent, driver of the lorry. In view of the settled legal position
that the case diary maintained by the Investigating Officer cannot be
used as evidence in the case, the Tribunal ought to have desisted from
summoning and marking the case diary in evidence.
21. The insurance company is not challenging the quantum of
compensation fixed by the Tribunal. But, the appellants/claim petitioners
are challenging the findings of the Tribunal regarding the monthly
income of the deceased. According to the appellants/claim petitioners,
the deceased was aged 60 years and was an ex-serviceman conducting
business of provision and stationary items and earning Rs.52,000/- per
month.
22. Even though, the appellants/claim petitioners filed I.A. No. 1
of 2024 for amending the original claim petition to substitute the
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monthly income of the deceased as Rs.1,00,000/- per month in the
place of Rs.52,000/-, the learned counsel for the appellants/claim
petitioners represented at the time of hearing that the appellants are not
pressing the said petition and hence, I.A. No. 1 of 2024 is dismissed as
not pressed.
23. On the basis of Exhibit A10, revised pension details of the
deceased, the Tribunal recorded a finding that the monthly pension of
the deceased was Rs.8050/-. But, a perusal of Exhibit A10 would show
that Rs.8,050/- was the last drawn pay of the deceased, who was
discharged from service on 30.04.2000. The occurrence in this case was
on 10.07.2010 and from Exhibit A10, it can be seen that the revised
pension of the deceased from 01.07.2009 is Rs.13,450/-.
24. A Division Bench of this Court in Geethakumari v. Rubber
Board [1994 KHC 150], relied on a five Judges Bench decision of
Gauhati High court in Saminder Kaur v. Union of India [1986 SCC
OnLine Gau 50 = 1987 ACJ 7] and held that the benefits received by the
legal representatives of the deceased, such as insurance policy amount,
family pension, gratuity, provident fund etc. are not deductible from the
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amount of compensation which the claimants are found entitled to. In
the said decision, it was held thus:
"The widow is receiving family pension under the service
conditions of the deceased. The provident fund, or pension, or
gratuity are deferred payments for satisfactory service or savings and
contributions of the deceased employee. His family would have been
entitled to get these amounts even in case the employee died a natural
death. The life insurance payment was payable because premiums
were paid by the deceased and a contract was entered into for such
payment on death. According to the judgment the wrong doer cannot
be permitted to gain or to take advantage of these payments by
deducting the payments received by the family of the deceased under these
heads."
25. The learned counsel for the appellants/claim petitioners
argued that the Tribunal has not considered the evidence of PW1 and
Exhibit A13 while fixing Rs.10,000/- as the notional monthly income of
the deceased from his business. But, the learned counsel for the
insurance company pointed out that even though Exhibit A13 trading
profit and loss details is marked through PW1, PW1 has not stated
anything in the chief affidavit regarding the contents of A13.
26. In cross examination, PW1 stated that Exhibit A13 is prepared
by a Chartered Accountant and she denied the suggestion that Exhibit
A13 is falsely created for the purpose of this case. A perusal of Exhibit
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A13 shows the seal and signature of a Chartered Accountant. The
learned counsel for the appellants/claim petitioners argued that Exhibit
A13 is prepared by a Chartered Accountant as per Section 44AB of the
Income Tax Act,1961.
27. But, it is pertinent to note that Exhibit A13 is not certified by
the Chartered Accountant to show that the audit was conducted
according to the provisions of Section 44AB of the Income Tax Act. It is
not forthcoming as to what relevant documents and registers are verified
by the Chartered Accountant for preparing Exhibit A13.
28. I find force in the argument of the learned counsel for the
insurance company that in the absence of a report or certificate by the
Chartered Accountant stating that the audit was conducted according to
the provisions of Section 44AB of the Income Tax Act and that the
financial statements in Exhibit A13 are true and fair to the best of their
knowledge and belief, the same cannot be accepted as a proof for
recording a finding regarding the income of the deceased from the
business conducted by him.
29. Even though, while cross examining PW1, the learned counsel
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for the insurance company has challenged the genuineness of Exhibit
A13, there was no attempt on the part of the petitioners to examine
the Chartered Accountant who prepared the same.
30. A person conducting business in a shop room is required to
maintain sales register and stock register as per the provisions under the
Goods and Services Tax Law. In this case, the petitioners have not
produced the sales register and stock register maintained by the
deceased in connection with the business conducted by him. Therefore,
I find that it is not possible to arrive at a decision regarding the income
of the deceased from his business on the basis of Exhibit A13.
31. However, I find merit in the argument of the learned counsel
for the appellants/claim petitioners that the notional monthly income of
the deceased from his business fixed as Rs.10,000/- by the Tribunal is
on the lower side. From Exhibit A11, certificate issued by the Secretary
of Kodumon Grama Panchayat and A12 certificate issued by the General
Secretary of Kerala Vyapari Vyavasayi Ekopana Samithi, it can be seen
that the deceased was running a stationery shop at Koduman in the
name of 'A to Z'. Further, Exhibit A10 will show that the deceased was
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holding the rank of Subedar Major in military at the time of his
retirement. From Exhibit A3 inspection report of the vehicle involved in
the accident, it can be seen that the deceased was the registered owner
of the maruti car involved in the accident. From the evidence on record
and circumstances of the deceased, it can be seen that he maintained a
reasonable standard of living as evidenced by his use of a maruti car for
commuting.
32. In Kirti v. Oriental Insurance Co. Ltd., [(2021) 2 SCC
166], the Honourable Supreme Court held that preserving the existing
standard of living of a deceased's family is a fundamental endeavour of
motor accident compensation law. Therefore, considering the facts and
circumstances, I find that the monthly notional income from his
business can be fixed at Rs.15,000/- per month. Therefore, the total
monthly income of the deceased from his business and pension can be
accepted as Rs.28,450/- (15,000 + 13,450). The appellants/claim
petitioners challenged only the quantum of compensation fixed under
the head 'loss of dependency' and the compensation fixed by the
Tribunal under the other heads are not under challenge.
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33. Since the deceased was aged 60 years at the time of death,
the Tribunal applied the multiplier of '9' and deducted one-third of the
income towards the personal and living expenses of the deceased and
the same is not under challenge. The Tribunal also made an addition of
10% of the established income towards future prospects as per the
decision of the Honourable Supreme Court in National Insurance Co.
Ltd. v Pranay Sethi [(2017) 16 SCC 680].
34. Thus, while re-assessing the compensation for loss of
dependency as per the revised criteria, the amount would come to
Rs.22,53,240/- [(28,450 + 10%) x 12 x 9x 2/3]. The Tribunal has
already granted Rs.14,29,596/- under this head. Therefore, the
appellants/claim petitioners are granted an additional compensation of
Rs.8,23,644/- towards loss of dependency. I find that the
compensation granted by the Tribunal under other heads are reasonable
and requires no interference.
35. The appellants in M.A.C.A No.310 of 2024/claim petitioners
are entitled to the enhanced compensation as given below:
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Additional
Compensation amount
Particulars awarded by the granted by this
Tribunal (Rs.) Court (Rs.)
Loss of dependency 14,29,596/- 8,23,644/-
Total enhanced compensation 8,23,644/-
36. In the result, M.A.C.A No. 1430 of 2024 is dismissed and
M.A.C.A No. 310 of 2024 is allowed and a total amount of Rs.8,23,644/-
(Rupees Eight Lakhs Twenty Three Thousand Six Hundred and Forty
Four only) is awarded as enhanced compensation. The said amount shall
carry interest at the rate of 9% per annum from the date of the
application till realization. The appellants/claim petitioners would also be
entitled to proportionate costs in the case. The claimants shall furnish
the details of the bank account to the insurance company for transfer of
the amount.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
