Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN FRIDAY, THE 28TH DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 MACA NO. 114 OF 2015 IN O.P.(MV)NO.1655/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA APPELLANT: VIPIN MATHEW, AGED 26 YEARS, S/O.MATHEW SEBASTIAN, SANGEETH, CATHEDRAL LANE, PULLUVILAKOM, NEAR BUS STAND, NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADVS. SRI.L.MOHANAN SMT.LIGEY ANTONY RESPONDENTS:
1 C.VASANTHY, W/O.CHANDRASEKHARAN, 2/101, KANGARI STREET, POTTIREDDIPETTI, NAMAKKAL DISTRICT, TAMILNADU-637 001. 2 AJU K.,S/O.KRISHNA PANICKER, KIZHAKEYAKARA PUTHEN VEEDU,PARASUVAKKAL, THIRUVANANTHAPURAM-696 508. 3 THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LTD., G.A.COIL ROAD, THIRUVANANTHAPURAM-695 001. 4 SIVAPRASAD,S/O.YESUDAS, SREEVILASOM, IRUMBIL, NEYYATTINKARA-695 121. 5 JOHN ROSE,S/O.PONNAYYAN, ROSE VILLA, RC STREET, NEYYATTINKARA-695 121. 6 SUJATHA SELAST, D/O.CHELLAMMA, W/O.JOHNROSE,-DO-, PIN-695 121. 7 ATHULYA ROSE J.S., D/O.SUJATHA SELAST, -DO-, 695 121. BY ADV SMT.M.HEMALATHA, SC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ..2..
C.JAYACHANDRAN, J.
---------------------------------------------- M.A.C.A.No.114 of 2015 ---------------------------------------------- Dated this the 28th day of October, 2022
JUDGMENT
Otherwise than in the usual course, here is a case where
the dictum laid down in New India Assurance Co. Ltd. v. Pazhaniammal [2011 (3) KLT 648] is pressed into service in the reverse direction, to hold that, a refer charge/final report, negating a crime as alleged in the FIS, would, in the absence of better evidence, establish absence of negligence on the part of the driver of the alleged offending vehicle, resulting in non-suiting a claimant seeking compensation under the Motor Vehicles Act.
2. Two original petitions, O.P.(MV)Nos.1655/2005 and
Accident Claims Tribunal, Neyyattinkara as per the impugned common award dated 16.09.2014. The case propounded was that the petitioners in the two OPs were travelling in a motor ..3..
cycle, which rammed against a lorry, allegedly driven in a rash and negligent manner, resulting in serious injuries to the petitioners. Both the OPs were dismissed relying upon Ext.A11 refer charge [a photocopy of which is marked as A2 in O.P. (MV)No.1655/2005]. The Tribunal found dichotomy between the version in Ext.A10 FIS and FIR [a copy of which is marked as Ext.A1 in O.P.(MV)No.1655/2005] and the one propounded before the Court. The Tribunal also found that, there was no protest complaint preferred against Ext.A11 refer charge and that, the same was accepted by JFCM-II, Neyyattinkara as R.C. No.90/2007. The aggrieved petitioner/claimant in O.P.(MV)No.
3. Heard Sri.L.Mohanan, learned counsel for the appellant and Smt. M. Hemalatha, learned Standing Counsel for the 3 rd respondent/insurance company.
4. Having heard the learned counsel appearing on both sides, this Court cannot, but confirm the impugned award of the Tribunal for more than one reason. Firstly, as per the refer charge/final report (marked as Ext.A11 in O.P.(MV)No. ..4..
O.P.(MV)No.1655/2005), no negligence is seen attributed to the driver of the lorry, the alleged offending vehicle. Instead, the investigation revealed that the accident occurred due to the rash and negligent driving of Mr. Nitheesh Rose, the petitioner in O.P.(MV)No.1894/2005. It requires to be noticed in this context that, both the petitioners were minors as on the date of accident and the claims were preferred by the father of the respective minors. It is not disputed that no protest complaint was preferred against the refer charge and that the same was
accepted by JFCM-II, Neyyattinkara as RC No.90/2007.
Pazhaniammal (supra) declared that a final report is prima facie sufficient proof of the negligence component for the purpose of a claim under the Motor Vehicles Act, which shifts the burden to the adversary party to adduce better evidence, so as to dislodge the conclusions arrived at in the final report. The effect of the evidence adduced in this case will be discussed in the succeeding paragraphs. Suffice to say that, in the absence of better evidence, the final report will govern the issue of negligence of the driver of the offending vehicle, a necessary concomitant to lay a claim for compensation under
..5.. the Motor Vehicles Act.
5. Secondly, this Court endorses the dichotomy noticed by
the Tribunal as between the versions espoused in the First Information Statement (Ext.A10 in O.P.(MV)No.1894/2005, a copy of which is marked as Ext.A1 in O.P.(MV)No.1655/2005) and the original petition before the Tribunal. The FIS was preferred by Sri. Vipin Mathew, the petitioner in O.P.(MV) No.1655/2005 and the appellant herein. His version in the FIS was that, while he was waiting in a waiting shed, he saw Nitheesh Rose coming in a motor bike as a pillion and driven by another person. To draw their attention, he clapped his hands and ran after the bike, whereupon a lorry coming in the opposite direction rashly in high speed, collided with the motor cycle, causing injuries to himself and Nitheesh Rose. There is no whisper about any injury caused to the driver of the motor cycle, whose name was also not disclosed. However, before the Tribunal, the claim petitioner filed styling himself as the pillion in the motor cycle driven by Nitheesh Rose. As per the averments, the accident occurred when the offending lorry dashed against the motor cycle. The Tribunal found that, it was
..6..
so done to make the case in tandem with the final report, but for the finding regarding negligence. In Ext.A11 refer charge, the Investigating Officer found that the accident was caused due to the rash and negligent driving of Nitheesh Rose who drove the motor cycle, where the appellant, Vipin Mathew, was a pillion. The motor cycle was driven in high speed and it hit against the rear wheel of the lorry. The Tribunal also found that
the version propounded by Nitheesh Rose in O.P. (MV)No.1894/2005 is a third one, to the effect that the accident occurred while he was travelling in a motor cycle. The word 'travelling' was later amended to incorporate in its stead, the word 'riding'.
6. RW1, the police officer who recorded Ext.A10 FIS was
examined to prove the contradiction as between the versions in the FIS and the Original Petition. RW3 is the Investigating Officer, who preferred Ext.A11 refer charge, was examined to prove the same. The evidence tendered by PW2, the father of Nitheesh Rose, is again different to the effect that it was the appellant Vipin Mathew, who drove the motor cycle at the time of accident.
..7.. In the above referred state of affairs, no infirmity or illegality can be found with the impugned award of the Tribunal, finding that negligence of the driver of the lorry - the alleged offending vehicle - is not established. This Court therefore, dismiss the appeal, confirming the dismissal of the original petitions. Sd/- C.JAYACHANDRAN, JUDGE ak