Sindhu.G & Ors. vs Balachandran & Ors.

The appeal is preferred against the award dated 03.09.2010 in O.P. (M.V.) No.1436 of 1999 on the file of the Motor Accidents Claims Tribunal, Punalur. The appellants are aggrieved by the rejection of their claim petition and have, therefore, preferred this appeal.

The short facts involved in the appeal is as follows;

The petitioners are the wife and two minor children of the deceased, Sri.Suresh Babu. According to them, on 29.09.1998 at about 3.30 p.m., while the deceased was entering the M.C. Road near Ayoor Bridge, the jeep bearing Registration No.KL-7L/3108, driven by the second respondent in a rash and negligent manner, was reversed and hit him, causing grievous injuries. He was initially taken to the Primary Health Centre, Nilamel, and thereafter shifted to Ambadi Hospital, Ayoor, and subsequently to the Medical College Hospital, Thiruvananthapuram, where he succumbed to the injuries on 01.10.1998 at about 6.00 p.m.

At the time of the accident, the deceased was aged 36 years and was engaged in running a provision store and a tea dust business at Poredom, earning a monthly income of ₹5,000/-. The petitioners claimed a total compensation of ₹5,00,000/-.

The first respondent is the owner of the offending jeep and the third respondent is its insurer. The third respondent filed a written statement denying the allegations in the claim petition. It was contended that the deceased, Sri. Suresh Babu, did not sustain any injuries in a motor vehicle accident on 29.09.1998 and that his death was not the result of any such accident.

During the trial, the claimants produced and marked Exts.A1 to A13. On the side of the respondents, Exts.B1 to B3 were marked. The Tribunal also marked Exts.X1 to X3(a) as court exhibits. On the side of the claimants, PWs 1 to 3 were examined, whereas RWs 1 to 4 were examined on behalf of the respondents. RW1 is the Surgeon who conducted the post-mortem examination of the deceased. RW2 is the Sub Inspector of Police who initially investigated the crime. RW3 is the Senior Medical Officer of the Primary Health Centre where the deceased was first taken immediately after the occurrence. RW4 is the Deputy Superintendent of Police (Vigilance), who conducted the vigilance enquiry into the allegations regarding the manner in which the investigation was carried out.

It was further contended that Crime No.205 of 1998 of Chadayamangalam Police Station was initially registered under Section 174 of the Code of Criminal Procedure, treating the death as one occurring under suspicious circumstances. According to the First Information Report and the inquest report, the deceased had fallen near a toddy shop after consuming alcohol. It was also contended that the deceased had been a nuisance to his relatives and that the crime was subsequently altered to one under Section 304 read with Section 34 of the Indian Penal Code.

The 3^rd respondent also contended that the doctor who conducted the post-mortem examination had opined that the death was not on account of the alleged motor vehicle accident. It was further alleged that the petitioners had failed to produce the wound certificate at the time of hearing of the application under Section 140 of the Motor Vehicles Act. According to the 3^rd respondent, the scene mahazar of the vehicle was prepared only on 03.11.1998, while the Motor Vehicle Inspector's report is dated 10.10.1998. It was further alleged that the First Information Statement was lodged by one of the brothers of the deceased, a retired police officer, and that, owing to his influence, the police altered the offence to one under Section 304A of the Indian Penal Code.

While admitting that the offending jeep was covered by a valid insurance policy issued by the 3^rd respondent on the date of the alleged accident, it was specifically denied that the said vehicle was involved in the accident as alleged in the claim petition.

The principal contention advanced by the learned counsel for the appellants is that the Tribunal failed to appreciate that the investigation initially concluded that the death of Sri.Suresh Babu occurred on account of the negligent driving of the vehicle by the second respondent. It is submitted that Ext.X2 vigilance enquiry report disclosed serious lapses in the investigation conducted by the Investigating Officer. However, despite the adverse findings in the vigilance enquiry, no further investigation or reinvestigation was ordered. According to the learned counsel, in such circumstances, the Tribunal ought not to have relied upon the final report and the findings based thereon.

It is further contended that the Tribunal erred in doubting the credibility of the Investigating Officer as well as the eye-witness relied upon during the investigation. The Tribunal also erred in concluding that PW2 was a planted witness without any material contradiction in his evidence or any successful impeachment of his credibility during cross-examination. According to the appellants, the materials on record would indicate that the deceased was intentionally assaulted by Shareef and Rafeeq and, therefore, appropriate offences under Section 304 read with Section 34 of the Indian Penal Code ought to have been incorporated instead of proceeding only under Section 304A IPC. It is also argued that the Tribunal has placed undue reliance upon statements recorded under Section 161 of the Code of Criminal Procedure, which are not substantive evidence.

The learned counsel for the appellants further contended that the Tribunal failed to appreciate the settled legal position that once the death has arisen out of the use of a motor vehicle, the claim under Section 166 of the Motor Vehicles Act cannot be rejected merely because the act causing the death was alleged to be intentional. In support of the said contention, reliance was placed on the decision of the Apex Court in Regional Director, ESI Corporation v. Francis De Costa and Another [1993 KHC 1113], wherein it was held that the expression "accident" should receive a broad and liberal interpretation from the standpoint of the victim and that an occurrence intentionally caused by another person may nevertheless constitute an accident so far as the victim is concerned.

Reliance was also placed on Dipa Ganguly and Another v. New India Assurance Co. Ltd. [2009 KHC 6481], wherein it was held that for maintaining a claim under Section 166 of the Motor Vehicles Act, the occurrence should be unexpected and without any design on the part of the victim, though it may have been intentionally caused by another person. The learned counsel also relied upon the decisions in Rashmi Pawan Kumar Sharma v. Kumudini Mahanta [2023 (1) Ori. L.R. 829] and Naraini Devi v. Pappu Singh [2023:PHHC:054 300], to contend that registration of a criminal case or the nature of the penal offence is not decisive for maintaining a claim under the Motor Vehicles Act and that the intention of the driver is immaterial once the death has arisen out of the use of a motor vehicle.

Per contra, the learned counsel appearing for the third respondent-Insurance Company relied upon the decision in Oriental Insurance Co. Ltd. v. V. Babu and Others [2022 (4) KHC 515], wherein this Court held that in a claim under Section 166 of the Motor Vehicles Act, proof of negligence is indispensable. It was further held that the petitioners must establish not only the negligence of the driver of the offending vehicle but also that the death was the direct consequence of the accidental injuries sustained in the motor accident. Though a police charge sheet or final report may ordinarily be relied upon to determine negligence, such findings may be displaced by reliable substantive evidence. Conversely, in the absence of reliable independent evidence, the Tribunal cannot ignore the police records.

The learned counsel appearing for the first respondent submitted that no vehicle was involved in the alleged occurrence. Reliance was placed upon the findings of the Tribunal, particularly paragraph 13 of the award, wherein the evidence of RW1, the Surgeon who conducted the post-mortem examination, was analysed. RW1 categorically deposed that the injuries sustained by the deceased were not consistent with an impact caused by a motor vehicle and that they were more suggestive of injuries inflicted by weapons. The Tribunal also noticed that the vigilance enquiry had found lapses in the investigation conducted by the Investigating Officer. However, no further investigation resulted in any finding establishing the involvement of the vehicle. Hence, according to the respondents, the Tribunal rightly concluded that the involvement of the vehicle had not been proved.

I have heard Sri. Nagaraj Narayanan, learned counsel appearing for the appellants, Smt. Rekha Nair, learned counsel for the third respondent, and Sri. A.R. Dileep, learned counsel for the first respondent.

Upon an evaluation of the rival submissions, I am of the considered view that the decisions relied upon by the appellants do not advance their case. The decision in Regional Director, ESI Corporation v. Francis De Costa (Supra) arose under the Employees' State Insurance Act and dealt with the interpretation of the expression "accident" in the context of that enactment. The principles laid down therein cannot be mechanically applied to a claim under Section 166 of the Motor Vehicles Act, where proof of negligence and involvement of the offending vehicle are essential ingredients.

Similarly, the decisions relied upon by the appellants only lay down that an occurrence intentionally caused by another person may nevertheless amount to an accident from the standpoint of the victim. However, those decisions do not dispense with the requirement of proving the involvement of the motor vehicle in an application under Section 166 of the Motor Vehicles Act.

On the other hand, the decision in Oriental Insurance Co. Ltd. v. V. Babu and Others (Supra) correctly lays down the governing principles applicable to a claim under Section 166 of the Act. The burden squarely rests upon the claimants to establish that the accident occurred due to the negligence of the driver of the offending vehicle and that the death was the direct consequence of the injuries sustained in the accident.

In the present case, the Tribunal has meticulously analysed the oral and documentary evidence. The evidence of RW1, the Surgeon who conducted the post-mortem examination, clearly indicates that the injuries sustained by the deceased were not consistent with a motor vehicle accident but were suggestive of injuries caused by assault with weapons. Apart from the initial investigation, the appellants have not adduced any independent and reliable evidence to establish the involvement of the vehicle in the occurrence. In the absence of satisfactory evidence establishing the involvement of the offending vehicle, the claim under Section 166 of the Motor Vehicles Act cannot succeed.

I find no illegality or perversity in the appreciation of evidence by the Tribunal warranting interference in this appeal. The findings recorded by the Tribunal are supported by the evidence on record and do not call for interference.

Accordingly, the appeal fails and is dismissed.