Madras High Court
R.Shanthi vs S.Velu on 27 May, 2021
Author: C.Saravanan
Bench: C.Saravanan
C.M.A.No.1544 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 21.04.2021
PRONOUNCED ON : 27.05.2021
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.M.A.No.1544 of 2019
(Through Video Conferencing)
1.R.Shanthi
2.K.Devagi ... Appellants
vs.
1.S.Velu
2.The New India Ass.Co., Ltd.,
No.80, Arcot Road, Porur,
Chennai 116. ... Respondents
Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988 against the Judgment and decree passed by the Motor
Accidents Claims Tribunal, (II Additional District Court) Poonamallee,
in M.C.O.P.No.192 of 2011 dated 12.07.2017.
For Appellants : Ms.Jayanthi for
Mr.J.Mahalingam
____________
https://www.mhc.tn.gov.in/judis/
Page No 1 of 10
C.M.A.No.1544 of 2019
For R2 : Mr.M.Krishnamoorthy
JUDGMENT
This appeal has been filed by the unsuccessful claimants. They claimants are mother and the wife of the deceased Ramanathan who met with an accident and died on 19.2.2008. As per the Claim Statement, the deceased was travelling on a sand laden insured lorry bearing registration No. T.N.23Z-1305 on 18.2.2008 when the driver of the insured lorry in a bid to avoid hitting a vehicle front applied sudden brake as a result of which, the deceased was thrown out of the vehicle, resulting grievous injuries and was taken to the hospital.
2. Before the Tribunal, the claimants had marked Exhibits P1- P5 and had examined four witnesses. On behalf of the 2nd respondent insurance company, one witness was examined and Exhibits R-1to R-4 were marked.
3. The Tribunal has dismissed the claim petition primarily on the ground that there was a discrepancy between the different version of the ____________ https://www.mhc.tn.gov.in/judis/ Page No 2 of 10 C.M.A.No.1544 of 2019 accident in Ex.P.1- FIR and Ex.P.4 Case History signed by the Sub- Inspector of Police. The Tribunal has also doubted the credibility of the deposition of PW 2 and the fact that the claim petition was filed on 17.02.2011 for an accident which had taken place on 18.2.2008. The Tribunal has also found fault with the appellant’s for not having produced any corroborative evidence to substantiate that the insured vehicle was involved in the accident. The Tribunal has also doubted the credibility of the evidence of PW 4 – Sub-Inspector of Police on the ground that he had not investigated this case.
4. Heard the learned counsel for the petitioner and the second respondent insurance company. Before the Tribunal, the owner of the insured lorry remained absent and therefore the second respondent insurance company defended the proceedings under Section 170 of the Motor Vehicles Act , 1988. I have perused the evidence on record.
5. As per Ex.P.1-FIR dated 19.02.2008 registered pursuant to information given by the ambulance drivers who took the deceased to the ____________ https://www.mhc.tn.gov.in/judis/ Page No 3 of 10 C.M.A.No.1544 of 2019 hospital for treatment, the deceased met with an accident as a pedestrian. However, as per Ex.P.4 dated 21.2.2008 - the case history prepared by the Sub- Inspector of Police who deposed evidence as PW4 involvement of the insured vehicle stands established.
6. Ex.P.4 was prepared by the Sub-Inspector of Police, Poonamallee to facilitate post-mortem of the deceased. It prima facie establishes involvement of the insured vehicle in the accident.
7. It is a contemporary document and therefore cannot be ignored merely because the final report under Section 273 of the Criminal Procedure Code had not been filed by the claimants.
8. PW2 on the other hand, in his deposition has stated that he was running a puncture shop near EVP Engineering College on Bangalore Highway and that he witnessed the deceased falling from the insured vehicle when the driver of the insured vehicle applied sudden break and without noticing the deceased falling from the lorry sped away. ____________ https://www.mhc.tn.gov.in/judis/ Page No 4 of 10 C.M.A.No.1544 of 2019
9. The second respondent insurance company has filed an affidavit of RW1 Investigator before the Tribunal. He has stated that he met the owner of the lorry and enquired with him about the accident who denied the involvement of the insured lorry and the accident. However, the notices and summons sent to the owner of the lorry and the driver had been returned as “ unclaimed.” The notices have remained unserved on them. Notice to owner of the insured lorry and the driver of the insured lorry have been issued notice by the second respondent insurance company as is evident from Exs.R.1 to R.3.
10. It is well settled that a judgment rendered in a criminal case is not binding on a civil court. The findings and conclusion of a Motor Vehicles Act on facts are purely based on pre-ponderance of probability and the Motor Vehicles Act, 1988. Therefore, merely because Ex.P.1 does not clearly establish involvement of the insured vehicle in the accident by itself will not ipso facto mean that the insured vehicle was not at all involved in the accident. Further, the Tribunal, under the provisions of the Motor Vehicles Act is not governed by strict rules of evidence. After all, the purpose of filing a complaint before the police ____________ https://www.mhc.tn.gov.in/judis/ Page No 5 of 10 C.M.A.No.1544 of 2019 station and generation of a FIR under Section 154 of the Criminal Procedure Code is merely to set the law in motion wherever there is a commission of an offence.
11. The deposition of P.W.2 does raise a suspicion. As per the deposition of PW 2, the accident is said to have taken place at about 10.30 on 18.2.2008.
12. According to PW2, the insured lorry sped away without either stopping and/or noticing the deceased falling off the lorry when the driver of the insured lorry allegedly applied break to avoid hitting another vehicle in the front. It is unlikely that P.W.2 would have been able to meticulously either take note of the vehicle make of the insured lorry and/or its registration number and remember it even after 8 years when he came forward to depose the evidence. Considering the fact that the incident is said to have taken place at about 10.30 p.m, iIt is also not clear as to why PW2, who is the sole witness of the accident did not ____________ https://www.mhc.tn.gov.in/judis/ Page No 6 of 10 C.M.A.No.1544 of 2019 come forward to file FIR on the date of accident. Thereafter, evidence of P.W.2 is to be viewed with caution.
13. At the same time, the information in Ex.P4 based on which PW4, has deposed evidence requires to be properly probed. If Ex.P.4 was based on other collateral records maintained in the Police Station, then those records should be summoned and examined by the Tribunal. The basis of the information contained in the aforesaid case history in Ex.P.4 regarding involvement of the insured vehicle requires to be seen as it can establish the involvement of insured lorry.
14. The evidence of Ex.P4 is also incomplete. There are indications that there are other documents which may be available at the police station to connect the involvement of the insured vehicle with the accident. Further, the conduct of the owner and the driver of the lorry not appearing or defending themselves in the proceedings also does raise reasonable doubt.
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15. Therefore, the involvement of the insured vehicle in the accident cannot be straight away ruled out. Merely because claimants were unable to file a claim statement at an earlier point of time or were unable get the documents in the collateral proceeding under Cr.P.C. cannot be their disadvantage. They deserve a fair chance. Therefore, I am inclined to set aside the impugned judgment and decree passed by the Tribunal and remit the case back to the Tribunal to re-examine the issue by summoning P.W.4 to produce all documents surrounding Ex.P.4 to give a fresh verdict after proper examination of all the records based on preponderance of probabilities.
16. I therefore set aside the impugned judgment and remit the case back to the Tribunal. The Tribunal shall endeavour to complete the proceedings within a period of twelve months from date of receipt of a copy of this order, considering the fact that the accident is of the year 2008.
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17. This Civil Miscellaneous Appeal stands disposed by way of remand with the above observation. No cost.
27.05.2021 Index : Yes/No Internet : Yes / No kkd Notes:-In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
To The Motor Accidents Claims Tribunal, (II Additional District Court) Poonamallee, ____________ https://www.mhc.tn.gov.in/judis/ Page No 9 of 10 C.M.A.No.1544 of 2019 C.SARAVANAN,J.
kkd Pre-delivery Judgment in C.M.A.No.1544 of 2019 27.05.2021 ____________ https://www.mhc.tn.gov.in/judis/ Page No 10 of 10