M. M. Mohamed v. O K Mohanan — 1997 DIGILAW 107 (KER)

JUDGMENT V.V. Kamat, J. 1. It is rarely, but on some occasions, that this Court has a painful duty to saver the litigant. From the word go when were are told about the facts, we were reminded of our duty towards the litigant as the court concerned with the award of just compensation under S.110B of the Motor Vehicles Act, 1939 (then applicable). Subsequent stages also made us aware of our duty, on apt and proper occasions, necessitating even transcending the claim in the petition. 2. On August 4, 1984 at 3 p.m. in the afternoon at a place known as South Vazhakulam within the jurisdiction of Perumbavoor Police Station, a young girl aged 5 years was taking Steps along with her mother on the road on the extreme side when a bus KLY 4457 driven by one Varghese (R2) and owned by one Mohanan (R1) virtually crushed the tender child under its tyre to proceed further. It is on record that the mother who was left to witness the ghastly incident of overrunning suffered mental derangement as a consequence. This was the family of a teacher. The claimant petitioner No. 1 one Muhammed along with the mother of the child Pathukutty presented the claim petition on November 21, 1984 before the M. A. C. T. Ernakulam. 3. Bare reading of the claim petition would demonstrate the situation to be saved. The claim amount in the petition appears to have been limited at Rs. 30,000/- only. This is as against the total of Rs. 60200/-. To demonstrate, the following are the particulars in regard thereto:- PART I a) Transport to hospital and from Rs.100 b) Damage to clothings Rs.100 c) Expenses for funeral and religious rites Rs.3,500 TOTAL Rs.3,700 PART II Compensation for mental shock and agony. Rs.5,000 Compensation for loss of love and affection Of the child and assistance at the old age Of the parents Rs.3,500 Compensation for loss and expected contribution towards maintenance of her parents Rs. 35,000 Compensation for shortened expectation Of life of the child Rs.10,000 Compensation of pain suffering Rs. 3,000 TOTAL Rs. 56,500 Grand Total Rs.60,200 Total claim is limited at Rs. 30,000 It would be seen from the particulars specified hereinbefore that the claim petition appears to have been prepared in a domestic manner than in a legal manner. Mental shock appears to have been quantified at Rs. 3,000 TOTAL Rs. 56,500 Grand Total Rs.60,200 Total claim is limited at Rs. 30,000 It would be seen from the particulars specified hereinbefore that the claim petition appears to have been prepared in a domestic manner than in a legal manner. Mental shock appears to have been quantified at Rs. 5000/-, loss of love and affection of the child who has been crushed under the tyre of a bus has been estimated at Rs. 3500/- only. Not content with this, compensation for pain and suffering is quantified at Rs. 3000/-. Added to that even the total claim is limited to half of the amount of the claim estimated on this more than modest basis. It is not necessary, but it is more than probable that the proceeding appears to have been handled at the threshold with an approach which can be understood as more than casual. 4. We find that the mother, aged 28 at that time, is a graduate in Arts. We also find that the child was stated to be clever, and of good behaviour and conduct. The family had two children, one boy and the deceased daughter who is the victim of this incident. We have already specified that the father was a teacher and we know from the application that he was the husband of a graduate wife, asserting in the petition that the family was capable of looking after the children. 5. We know, not from the award, but from the evidence of the father that the mother (petitioner No. 2) could not be examined because due to the incident as an impact, she became mentally deranged and had not recovered even with regard to the occasion for her to give evidence in the court. It is necessary to state that this aspect is left undisturbed and there is no controversy in regard thereto. 6. In the evidence a certified copy of the First Information Statement in Criminal Case No. 60/1985 issued on application to the father from the Court of the Judicial First Class Magistrate, Perumbavoor is produced at Ext. A1. In a similar way certified copies of inquest report, A. M. V. I. report and post mortem certificate are also tendered on record at Exts. A2, A3 and A4 respectively. A1. In a similar way certified copies of inquest report, A. M. V. I. report and post mortem certificate are also tendered on record at Exts. A2, A3 and A4 respectively. The perusal of the evidence recorded make it clear that these documents have come on record and exhibited by the Tribunal without any controversy in regard thereto. Similarly on behalf of the insurance company (R3) a true copy of the policy certificate (Ext. B1) is tendered on record. 7. Naturally, when the father was not the witness to the incident, the Tribunal characterised his evidence as nothing but hearsay evidence. The Tribunal hastened to proceed to hold that from the required fact that the accident took place on account of negligence on the part of the driver is not true. 8. The Tribunal has not taken the trouble of determining the quantum because the Tribunal itself has recorded the observation, "as negligence has not been proved, the petitioners are not entitled to get any compensation". In this situation by the impugned award dt. April 5, 1988, the Tribunal kept intact the amount of Rs. 15,000/- no fault liability - without insisting proof of negligence in regard thereto with an order of realisation thereof with interest at 12% per annum from the date of the petition till payment. It is necessary to record and it is more painful that the Tribunal has not even considered the documents Ext. A1, A2, A3 and A4 in the context of the requirements of establishing negligence in regard thereto. 9. In this context the oft quoted the well known observations of the apex court ( AIR 1977 SC 1735 , Pushpabai v. Ranjit G & P Co.) assume importance to remember. The apex court accepting that normally it is for the plaintiff to prove negligence has appreciated that considerable hardship is required to be faced as the true cause of the accident is not known to the plaintiff. Many time it is solely within the knowledge of the defendant who caused it (the driver) and in that case the plaintiff can prove the accident finding difficulty yet to place before the court how it happened. It is this hardship which is sought to be avoided, the apex court has aptly applied by applying the principle of res ipsa loquitur, meaning that the accident, "speaks for itself or tells its own story. It is this hardship which is sought to be avoided, the apex court has aptly applied by applying the principle of res ipsa loquitur, meaning that the accident, "speaks for itself or tells its own story. These situations, speaking for themselves, are capable of changing the scene by way of an about turn requiring the other side to do something in the process. 10. We proceeded to consider the certified copy of FIR (Ext. A1) keeping the above guidelines in the forefront before us. The following translated portion of the document would speak on the basis of the above principle. It is as follows:- "While he was returning after purchase of beedi, cigarettes etc. from the shop of one Padanair at South Vazhakulam to his shop in his bicycle, second petitioner was found walking through the southern end of the road catching hold of the hand of a small child (Fousia) near the house of one John who is employed in Asoka Textiles, and when he reached near the shop of Kochubava, the bus bearing No. KLT 4457 conducting service on the route Aluva - Koothattukulam styled as "Morning Star" came from behind without sounding the horn, dashed against the child and ran over the child stopped for some time and sped away for west." It is necessary to state that the above contents of the document (Ext. A1), which are originally in Malayalam, have been translated for the purpose of this judgment by my learned brother. 11. Ext. A1 is a certified copy of the FIR It is more than elementary that the FIR is a coinage which has no original in the statutory language of the Criminal Procedure Code other than an information under S.154 of the Criminal Procedure Code, 1973 relating to the commission of a cognizable offence statutorily required to be reduced to writing by an officer in charge of the concerned police station, reemphasising that every such information has to be signed by the person giving it and in addition requiring the substance thereof to be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. The said statutory provision specifies further that its copy has to be given forthwith free of cost to the person giving information. The said statutory provision specifies further that its copy has to be given forthwith free of cost to the person giving information. In addition thereto, the further requirement is sending the substance of such information in writing and by post to the Superintendent of Police concerned for taking further steps in accordance with the provision. In addition thereto, the statutory provision under S.156 of the Code makes the Magistrate of the jurisdiction concerned with the record making it obligatory to receive the report and take further steps as provided thereunder. 12. Taking into consideration the above statutory requirements relating to the FIR as are available in the Code of Criminal Procedure, it would have to be considered that these aspects relate to the record forming the acts of public officers in accordance with the provisions of law. The statutory provision of S.154 requiring maintenance of a book to be kept by such officer in charge of the police station in such form as prescribed by the State Government which is the record at the police station. In addition thereto, the statutory requirement whereunder a copy is sent to the Magistrate having jurisdiction over the concerned police station also maintains a record of such copies having been received from the concerned police stations which becomes the record of the judicial officer in the context. A further step to consider the situation provides that certified copies of such record is permitted to be produced in proof of the contents of the public documents or parts thereof of which they purport to be copies. These positions become clear at once by perusal of S.74, 76 and 77 of the Evidence Act, in regard to their production in proof of the contents thereof. The courts have treated certified copies of the FIR as public documents and thereby not requiring formal proof in regard thereto (illustratively see 1990 ACJ 542 - Mehta Printing Industries v. Lila Devi). 13. Apart therefrom it will have to be seen that any fact which is required to be proved in court, apart from arguments and legal inferences is placed on record either by leading direct evidence in regard thereto or by creating a situation under which the court can take judicial notice or by persuading court by reference to the necessary provisions of law to urge that certain situations are responsible for creation of presumptions in the context. 14. 14. The situations of presumption is a direct gift to the law of evidence from the province of inductive logic. In fact, the entire process of investigation really classifies the methods of reaching conclusions on inferences with scrupulous exactness and methodology. In the process where direct proof is not necessary or the situation is not such of which the judicial notice can be taken, with justification resort is taken to the postulates of logical thinking. Introducing certain situations where it is possible to presume the situation, where it is compelling to presume the situation, dividing its categories in the Law of Evidence relating thereto. This is the position not only with regard to the oral evidence, but also with regard to the documentary evidence capable of resorting to inference by presumptions of the situations. Depending on the shape and size of the situations, presumptions are of a legal character, a conclusive, character and also of a rebuttable character. 15. Once the FIR is a public document, tender of a certified copy thereof satisfied the test of proof in regard thereto and what is more important in the context is that the concerned satisfaction is with regard to the contents thereof in view of the provisions of S.77 of the Act. 16. We have already spelt out what is revealed by the factual contents of the document (Ext. A1). In such a situation the law of presumption enunciated in the provisions of S.80 of the Indian Evidence Act, 1872 creates a presumption. Reference to the statutory provisions of S.80 would show that the presumption is referable to the document being genuine, to any statement in regard thereto having been made by the person signing it to be true and further that such a statement has been duly taken and recorded by the officer in charge of the police station. If this is the statutory provision, on the principle of res ipsa loquitur the negligence on the part of the driver of the bus is writ large on the face of the record and has to be accepted in proof thereof showing that the death of the child was the direct result of the negligence of the driver of the bus. There is nothing in rebuttal in regard thereto and in fact there cannot be anything in regard thereto. There is nothing in rebuttal in regard thereto and in fact there cannot be anything in regard thereto. The surprise of the situation is that any thought in regard to this aspect is found to be conspicuous by its absence in the proceedings before the Tribunal even in the award. 17. The above situation leads us to conclude on the basis of preponderance of probabilities that the death of the child cannot be otherwise than as a result of gross negligence of the driver of the bus. 18. If this is the situation, then the next question of determination of just compensation follows as a matter of course. In this context we have already spelt out the manner in which the claim has appeared before the Tribunal with regard to the heads thereof. 19. It is difficult to find out an answer as to how and why the claim quantified at Rs. 60,200/- has been limited to half of it at Rs. 30,000/-. We have already showed our reaction to the manner in which different heads are dealt with in the claim petition. The learned Tribunal thought it fit not to apply its mind to the question. Asking the Tribunal again to do it would be a mockery of justice after the period of 12 years and more thereof. It would not be in the interest of justice if we do not consider it to determine ourselves as the appellate authority. The statutory provisions of S.110B of the old Act makes the purpose of the enquiry into the claim to determine the amount of compensation appears to the court to be just. Reading the claim petition it would have to be stated that the claim is of Rs. 60,200/- which is limited to Rs. 30,000/-. With great stretch to our anxiety we cannot but state that the only reason for reduction of this claim to half of the stated claim could be the difficulties of the client and the remedies in regard thereto found out by the counsel to be the reduction of the claim. Be that as it may, the claim petition is for an amount of Rs. 60,200/- in the light of the factual situation. 20. Be that as it may, the claim petition is for an amount of Rs. 60,200/- in the light of the factual situation. 20. This Court ( 1994 (2) KLJ 646 - KSRTC v. Peethambaran) has emphasised that the claim petition is the only remedy for the wrong done to the claimants knowing fully well that the original position is incapable of restoration. It is further emphasised in the context that the law must endeavour to give a fair equivalent in money keeping before it two main elements viz. personal loss and pecuniary loss. The court keeps in mind a reasonable commonsense that it is the only occasion on which compensation can be given and the plaintiff can never think of suing again and come before the court with a second round. It is in this process of reasoning this court has observed that the claimant has to be understood to have suffered a wrong at the hands of the defendant and it is the court that has to take care to give him what is known as full and fair compensation for what he has suffered. 21. Even though the general principle is that the award amount does not exceed the total amount of the claim and it is not necessary for the claimant to specify the claim amount under separate heads, the statutory pious function of the court is available through the language requiring the court to determine the amount of compensation which is just in the context of the situation. The learned counsel appearing for the insurance company emphasised the statutory language that it is on receipt of an application for compensation that the Tribunal gets concerned with an enquiry into the claim, the object of which is the determination of just compensation. The learned counsel emphasised that the function of the court, though has to be understood in the context of determination of just compensation, has also necessarily to be understood in the context of the application concerned. In other words, the learned counsel submitted that the court cannot travel beyond the contents of the application. The learned counsel emphasised that the function of the court, though has to be understood in the context of determination of just compensation, has also necessarily to be understood in the context of the application concerned. In other words, the learned counsel submitted that the court cannot travel beyond the contents of the application. In our judgment, although it may be true as a general principle, the power of the court or rather the pious duty and function of the court would have to be understood with sufficient emphasis on its judicial function in determination of the just amount of compensation and this consideration may perhaps require the court to travel beyond the tenets of the contents of the application. Be that as it may, we have already recorded that the claim petition will have to be understood as a claim for Rs. 60,000/- and therefore the relevance of the point under consideration would really meaningfully arise in a situation where we think that the just compensation would be more than Rs. 60,000/-. We must make it clear that this is not what we have in mind. We will proceed on the basis that the claim petition refers to a claim of Rs. 60,000/- which appears to have been limited to its half at Rs. 30,000/-. 22. What the learned Judge of the Tribunal has done is to award Rs. 15,000/- which is the amount relating to the no fault liability. 23. In the process of determination of the just amount of compensation we have before us the incident and its consequence. A heavy bus dashed a child of 5 years behind its back overrunning and left the mother to witness the ghastly incident. The incident is bound to be a bleeding scare left with any mother under the circumstances. In addition, we have before us on record that atleast till the time of the evidence being recorded by the Tribunal, the mother could not appear before the Tribunal to give evidence because in addition to bleeding scare, which is natural and inevitable, the mother has been living the life of mental derangement atleast till the time of giving evidence for which she could not be examined. This has demonstrably led the Tribunal to take a view that there was no negligence at all. All these factors have to be taken into consideration. This has demonstrably led the Tribunal to take a view that there was no negligence at all. All these factors have to be taken into consideration. What is left by the incident in question is petitioner No. 1, who is a teacher by profession with his wife, a mentally deranged as a result of the incident, and a son as the left over of the legacy for him. 24. Taking into consideration all these circumstances, in our judgement, the just compensation would be an additional award of Rs. 30,000/-, apart from the award of Rs. 15,000/- passed by the Tribunal which would meet the ends of justice. 25. For all the above reasons we allow this appeal and pass an award of Rs. 30,000/- with interest at 12% per annum from November 21, 1984 (the date of the petition) till final payment and make it further clear that this would be in addition to the award of Rs. 15,000/- which is passed by the Tribunal by the impugned award. We direct the insurance company (R3) to comply with both the awards within a period of two months from today (on or before May 5, 1997) making it additionally clear that failure would increase the rate of interest to 18% per annum instead of 12% as above.