Kerala High Court
K.M.Gafoor vs * 1 V.J.Bushar (Died)(Legal Heirs ... on 5 February, 2020
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941
MACA.No.2414 OF 2009
AGAINST THE AWARD IN O.P.(MV) NO.3066/2004 DATED 05-01-2009 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM
APPELLANT/PETITIONER:
K.M.GAFOOR,
AGED 56 YEARS, S/O.MANNOO,
5/528,B.S.S.ROAD,
MATTANCHERRY,COCHIN-2.
BY ADVS.
SRI.R.SUDHISH
SMT.M.MANJU
RESPONDENTS/RESPONDENTS:
* 1 V.J.BUSHAR (DIED)(LEGAL HEIRS IMPLEADED)
2/135, CALVATHY ROAD,
FORTCOCHIN, COCHIN-1.
2 V.M.JALEEL,
S/O. MOIDEENKUTTY,
2/115, VILAKKUKANDATHIL VEETTIL,
BEHIND OF OLD MAGISTRATE, COURT,
CALVATHY ROAD, FORTCOCHIN,COCHIN-1.
3 THE ORIENTAL INSURANCE CO.LTD.,
DIVISION OFFICE NO.V, SHAN COMPLEX,
6/990B, BAZAR ROAD,
MATTANCHERRY,COCHIN-2.
* LEGAL HEIRS OF THE 1ST RESPONDENT IMPLEADED:-
* SUPPL. MUMTHAS,
R4 W/O. LATE V.J. BUSHAR,
H.NO.5/327, VALIYA PARAMBU,
MATTANCHERRY, KOCHI-2.
* SUPPL. SUHAIL V.B.,
R5 S/O. LATE V.J. BUSHAR,
H.NO.5/327, VALIYA PARAMBU,
MATTANCHERRY, KOCHI-2.
MACA.No.2414 OF 2009
-2-
* SUPPL. ASMA V.B.,
R6 D/O. LATE V.J. BUSHAR,
H.NO.5/327, VALIYA PARAMBU,
MATTANCHERRY, KOCHI-2.
* SUPPL. HASEENA V.B.,
R7 D/O LATE V.J. BUSHAR,
H.NO.5/327, VALIYA PARAMBU,
MATTANCHERRY, KOCHI-2.
(SUPPLEMENTARY RESPONDENTS 4 TO 7 ARE IMPLEADED AS
THE LEGAL HEIRS OF THE DECEASED FIRST RESPONDENT AS
PER ORDER DATED 5/8/19 IN I.A. NO.3/18 IN MACA NO.
2414/2009)
SMT. K.S.SANTHI, STANDING COUNSEL,
ORIENTAL INSURANCE CO. LTD.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 05.02.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA.No.2414 OF 2009
-3-
JUDGMENT
The appellant is the claimant in O.P(MV) No.3066 of 2004 on the file of the Motor Accidents Claims Tribunal, Ernakulam, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident alleged to have occurred on 22.08.2004, while he was travelling on a motorcycle bearing registration No.KL-07/AC-2991, owned by the 1st respondent, ridden by the 2 nd respondent and insured with the 3rd respondent. Going by the averments in the claim petition, at the place of accident, the 2nd respondent rider suddenly swerved the motorcycle without proper care. The motorcycle hit on the road divider. The appellant fell down and sustained injuries. Immediately, after the accident, he was taken to K.V.M. Hospital, Cherthala, from where he was referred to Medical Trust Hospital, Ernakulam. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 2nd respondent rider, claim petition was filed before the Tribunal claiming a total compensation of Rs.2,50,000/- under various heads.
MACA.No.2414 OF 2009 -4-
2. Before the Tribunal, respondents 1 and 2 remained absent and they were set ex-parte.
3. The 3rd respondent insurer filed written statement disputing the accident. The insurer contended that the appellant was neither the pillion rider on the motorcycle in question nor it was ridden by the 2nd respondent. The appellant himself was the rider of the motorcycle and the accident occurred due to his own negligence.
4. Before the Tribunal, Exts.A1 to A10 were marked on the side of the appellant and he was examined as PW1. The respondents have not chosen to adduce any oral or documentary evidence.
5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the appellant failed to discharge his burden of proving the accident. There is considerable force in the contention of the 3 rd respondent insurer that the accident is a 'self accident' and the rider was subsequently introduced into the picture for unlawful gain. The reasoning of the Tribunal, as contained in paragraphs 6 and 7 of the award, reads thus;
"6. Issue Nos.1 and 2:- Ext.A1 is the copy of FIR registered MACA.No.2414 OF 2009 -5- by the police in respect of the accident. Ext.A4 is the copy of scene mahazar and Ext.A5 is the copy of police charge sheet filed against the 2nd respondent under Sections 279 and 338 IPC before the JFCM Court-I, Alappuzha. Petitioner while examined as PW1 has also given a narration of the incident and blaming the 2nd respondent for the accident.
7. Pursuant to the accident, petitioner was taken to a local hospital in Cherthala and on the early hours of the next day removed to a Private hospital at Ernakulam. Ext.A2 is the copy of wound certificate issued from the Ernakulam Medical Trust Hospital wherein the cause of injury is stated as 'fall from a bike'. Petitioner while examined as PW1 stated that immediately for the accident he was taken to a local hospital by the flying squad. Wound certificate issued from the first hospital was not produced for reasons best known to the petitioner alone. The rider is none other than lies uncles' son. If so normally the person who will take initiative to remove the injured for medical aid will be the rider who was no where in the picture. The FIR is seen registered on the information launched by one Rahim, brother in law of the petitioner. But PW1 stated that on the next day of accident police had taken his statement. That also looks suspicious. No eye witnesses were examined. Even the rider and the first informant who could have a better version of the incident were speak about the accident. In these circumstances the testimony of PW1 cannot be lightly eschewed and the same is the case with crime records prepared on the basis of information lodged by one of the relatives. Non production of the wound certificate issued from the first hospital would have also thrown light on the real picture. On a meticulous consideration of facts and circumstances I hold that the petitioner has not discharged his burden of proving the MACA.No.2414 OF 2009 -6- accident I also find there is no considerable force in the contentions of the 3 rd respondent that this was only a self accident and the rider was subsequently introduced into the picture for unlawful gain."
6. Feeling aggrieved, the appellant/claimant is before this Court in this appeal.
7. During the pendency of this appeal, the 1 st respondent died and his legal heirs are impleaded as supplemental respondents 4 to 7. Despite service of notice, none appears for the 2nd respondent and also for supplemental respondents 4 to 7.
8. Heard the learned counsel for the appellant/claimant and also the learned Standing Counsel for the 3rd respondent insurer.
9. The issue that arises for consideration in this appeal is as to whether the reasoning of the Tribunal in dismissing the claim petition on a finding that the appellant failed to discharge his burden of proving the accident and that, there is considerable force in the contention of the 3 rd respondent insurer that the accident in question is only a 'self accident', can be sustained in law.
10. In Venugopala Panicker v. Unnikrishna Panicker MACA.No.2414 OF 2009 -7- and others [2015 (2) KHC 621], a Division Bench of this Court held that standard of proof required to prove negligence in a claim petition is different from the standard of proof required in a criminal case. In a claim petition before the Tribunal, the standard of proof is much below than what is required in a criminal case as well as in a civil case. Paragraph 18 of the said decision reads thus;
"18. The Apex Court as well as this Court has held in umpteen number of cases that, the standard of proof required to prove negligence in a claims petition filed under Section 166 of the Motor Vehicles Act, 1988 is different from the standard of proof required in a criminal case. In Sherin J. Thankom v. Thankom and others (2014 (3) KLT 44) a Division Bench of this Court, to which one among us (Anil K. Narendran, J.) was a party, held that, in deciding matters arising out of accident cases the Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a claim before the Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. Paragraphs 14 and 15 of the judgment read thus;
"14. In Kusum Lata and others v. Satbir and others (2011 (3) SCC 646) the Apex Court held as follows; It is well known that in a case relating to motor accident claims, the claimants are not MACA.No.2414 OF 2009 -8- required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind. Later, in Parameshwari v. Amir Chand and others (2011 (11) SCC 635) the Apex Court reiterated that, in a road accident claim, the strict principles of proof in a criminal case are not attracted. In Parameshwari's case (supra), the Apex Court had taken note of the observation made in its earlier judgment in Bimla Devi and others v. Himachal Road Transport Corporation and others (2009 (13) SCC 530) that, the claimants were merely to establish their case on the touchstone of preponderance of probability and that standard of proof beyond reasonable doubt could not have been applied.
15. Prima facie we find that the reasoning given by the Tribunal in the impugned common award is in conflict with the principle laid down in the judgments of the Apex Court referred to above.
In deciding matters arising out of accident cases the Tribunal should bear in mind the caution struck by the Apex Court that a claim before the Motor Accidents Claims Tribunal is neither a criminal case nor a civil case. In a claim before the Tribunal the standard of proof is much below than what is required in a criminal case as well as in a civil case. No doubt before the Tribunal, there must be some material on the basis of which the Tribunal can arrive at or decide things necessary to be decided for awarding compensation. In such circumstances, we hold that the reasoning given by Tribunal in the MACA.No.2414 OF 2009 -9- impugned common award, in order to reject the claim petitions filed by the appellants are unsustainable and the said common award is liable to be set aside in these appeals."
11. In N.K.V. Bros. (P) Ltd v. Karumai Ammal [(1980) 3 SCC 457], the Apex Court held that, in accident cases, the Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. It was held that save in pain cases, culpability must be inferred from the circumstances, where it is fairly reasonable and that, the Court should not succumb to niceties, technicalities and mystic maybes.
12. In Sunita v. Rajasthan State Road Transport Corporation [AIR 2019 SC 994], the Apex Court held that strict principles of rules in a criminal case will not be applicable in a claim for compensation under Section 166 of the Motor Vehicles Act, 1988. The standard to be followed in such a case is one of preponderance of probability rather than one of proof beyond reasonable doubt. There is nothing in the Motor Vehicles Act to preclude citing of witness in a motor accident claim, who has not been named in the list of MACA.No.2414 OF 2009 -10- witnesses in the criminal case. What is essential is that the opposite party should get a fair opportunity to cross examine the concerned witness. Once that is done, it will not be open to them to complain about any prejudice caused to them. If there was any doubt to be cast on the veracity of witness, the same should have come out in cross examination.
13. The document marked as Ext.A1 is the First Information Report in Crime No.208 of 2004 of Mararikulam Police Station registered on 23.08.2004, in connection with the motor accident in question. The document marked as Ext.A5 is the charge sheet filed by the Police before the Judicial First Class Magistrate Court-I, Alappuzha in which the 2nd respondent rider of the motorcycle is charge sheeted for offence punishable under Sections 279, 337 and 338 of the Indian Penal Code.
14. In New India Assurance Company Ltd. v.
Pazhaniammal and others [2011 (3) KHC 595] a Division Bench of 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. If police charge sheet does not satisfy their MACA.No.2414 OF 2009 -11- judicial conscience, Tribunals can reject it and can call upon the parties to adduce oral evidence to establish the alleged negligence. Paragraphs 7 and 8 of the judgment read thus:
"7. In this context we feel it appropriate to refer to the practice adopted by many Tribunals in the State. Wherever a crime has been registered in respect of the accident and the investigation has culminated in the filing of a charge - sheet by the police, such charge - sheet is filed and the same is reckoned as sufficient to establish negligence on the part of the indictee. The practice has not received formal judicial approval and hence some Tribunals insist on oral evidence in support of negligence invariably. This consumes a lot of judicial time and the heavily over worked Tribunal spends its time on unnecessary oral evidence of negligence. We would certainly not want the Tribunals to be prisoners of the conclusions of police officers. If the Tribunal finds it suspicious, it can insist for better evidence. But as a general rule it can safely be accepted that production of the police charge - sheet is prima facie sufficient evidence of negligence for the purpose of a claim under S.166 of the Motor Vehicles Act. A system cannot feed itself on a regular diet of distrust of the police. Prima facie, charge - sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties do not accept such charge - sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge - sheet is MACA.No.2414 OF 2009 -12- 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. In all other cases such charge - sheet can be reckoned as sufficient evidence of negligence in a claim under S.166 of the Motor Vehicles Act. We mean to say that on production of such charge - sheet the shifting of burden must take place. It is not as though we are not conscious of the dangers and pit falls involved in such an approach. But we feel that adoption and recognition of such practice would help to reduce the length of the long queue for justice before the Tribunals. The judicial recognition of the practice will help the Tribunals to ensure the optimum use of judicial time at their disposal for productive ventures.
8. We do not intend to say that collusive charge - sheets need be accepted. Wherever on the facts of a given case the Tribunals feel that the police charge - sheet does not satisfy their judicial conscience, the Tribunals can record that the charge - sheet cannot be accepted and can call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged negligence. In such a case, the issue of negligence must be decided on the other evidence, ignoring the charge - sheet."
15. In Shajahan U.S. v. Sundaresh G. Pai and another [2019 (3) KHC 412], this Court held that, in a proceeding under Section 166 of the Motor Vehicles Act, it is not necessary for the claimant to plead and proof the manner MACA.No.2414 OF 2009 -13- in which the accident took place, for sustaining the claim for compensation. In terms of the amended provisions, contained in Section 166 of the Motor Vehicles Act, the Tribunal is empowered to treat the information received under Section 158 of the Act as an application for compensation under the Act and to grant compensation to the victims on that basis. In other words, the claim petition filed under the Act is not an adversarial lis in its traditional sense, but only a proceedings in terms of, and regulated by the provisions of the Act, which is a complete code by itself. The approach of the Tribunal in dealing with the application for compensation under Section 166 of the Act shall be with a view to discover the true facts, namely, whether there was a motor accident and also whether the accident occurred on account of the negligence of the driver of the vehicle, for it is the obligation of the Tribunal in terms of the Act to give compensation to the victims of motor accidents, notwithstanding whether there is even an application for the said purpose. If materials available on record are not sufficient for the Tribunal to discover the true facts, the Tribunal cannot stop the proceedings there, but shall make an endevour to discover the facts by calling for MACA.No.2414 OF 2009 -14- additional materials from parties.
16. In view of the law laid down in Pazhaniammal's case supra, production of Ext.A5 charge sheet is prima facie sufficient evidence of negligence on the part of the 2 nd respondent rider of the motorcycle for the purpose of a claim under Section 166 of the Motor Vehicles Act. If police charge sheet does not satisfy the judicial conscience, the Tribunal should have called upon the claimant to adduce oral evidence to establish the alleged accident and also the negligence of the driver of the offending vehicle.
17. In view of the law laid down in the decisions referred to supra, the reasoning of the Tribunal in dismissing the claim petition filed by the appellant/claimant cannot be sustained. In such circumstances, this appeal is disposed of by setting aside the impugned award of the Tribunal and the matter is remanded to the Tribunal for reconsideration, after affording an opportunity to both sides to adduce further evidence.
18. The appellant and the 3rd respondent insurer shall appear before the Tribunal on 12.03.2020. Since the claim petition is of the year 2004, the Tribunal shall finally dispose of MACA.No.2414 OF 2009 -15- the matter, as expeditiously as possible, at any rate, within a period of three months from the date of appearance of the parties.
Sd/-
ANIL K. NARENDRAN JUDGE bpr