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2013 DIGILAW 3581 (MAD)

Baskar v. Superintendent of Police, Namakkal

2013-10-03

S.VIMALA

body2013
Judgment : Whether the Claims Tribunal is justified in dismissing the claim petition on the ground that police referred the complaint (alleging negligence in causing the accident) as 'mistake of fact', is the issue raised in this appeal. 2. The appeal has been filed by the claimant, challenging the dismissal of the claim petition filed by him in MCOP No.99 of 2006. 3. Baskar, claimant, aged 34, employed as Supervisor and tailor, earning a sum of Rs.15,000/- per month, suffered multiple fractures on account of accident that took place on 28.08.2005, involving the jeep bearing Registration No.TN28-G-0052. 4. According to the claimant, on 28.08.2005, at 08.20 am, when he was riding his motor cycle bearing Registration No.TN27-W-9939, near 4th hair pin bend on the yercaud main road, the jeep belonging to the third respondent, came from Yercard to Salem, in a rash and negligent manner and hit against the claimant directly. A case was registered in Crime No.162 of 2005 by Yercaud Police. The claimant filed a claim petition claiming a sum of Rs.5 lakhs as compensation. 5. The factum of accident was admitted by the respondents, but the negligence and liability were disputed. It is the case of the respondents that the accident had occurred only due to the rash and negligent driving of the claimant himself. The Tribunal relied upon Ex.R-1 under which the criminal case registered against the third respondent/driver in Crime No.162 of 2005 was referred to as 'mistake of fact'. The Tribunal, by relying upon the evidence of R.W.1/driver/Balamurugan and by accepting Ex.R-1, under which the case was referred to as 'mistake of fact', dismissed the claim petition. This dismissal order is under challenge in this appeal. 6. The first respondent herein is the Superintendent of Police, Namakkal District. Admittedly, criminal case has been preferred only before Namakkal Police Station and the officials working in Namakkal Police Station are administratively subordinate to the Superintendent of Police, Namakkal District. Having no courage to investigate, probably the case would have been referred to as 'mistake of fact'. 7. Whether the fact that the case has been referred to as 'mistake of fact' can be a ground for the Tribunal to dismiss the claim petition or the Claims Tribunal is expected to conduct an independent enquiry and come to its own conclusion, based upon materials produced before the Tribunal, is the issue raised in this Civil Miscellaneous Appeal. 7. Whether the fact that the case has been referred to as 'mistake of fact' can be a ground for the Tribunal to dismiss the claim petition or the Claims Tribunal is expected to conduct an independent enquiry and come to its own conclusion, based upon materials produced before the Tribunal, is the issue raised in this Civil Miscellaneous Appeal. 7.1. At this stage, it would be relevant to indicate the directions of the Supreme Court to the Director Generals of Police of all States in respect of Accident Information Report, reported in the case of Jai Prakash v. National Insurance Company, 2010 (2) SCC 607 :- “16. The Director General of Police of each State is directed to instruct all Police Stations in his State to comply with the provisions of Section 158(6) of the Act. For this purpose, the following steps will have to be taken by the Station House Officers of the jurisdictional police stations: (i) Accident Information Report in Form No. 54 of the Central Motor Vehicle Rules, 1989 ('AIR' for short) shall be submitted by the police (Station House Officer) to the jurisdictional Motor Vehicle Claims Tribunal, within 30 days of the registration of the FIR. In addition to the particulars required to be furnished in Form No. 54, the police should also collect and furnish the following additional particulars in the AIR to the Tribunal: (i) The age of the victims at the time of accident; (ii) The income of the victim; (iii) The names and ages of the dependent family members. (ii) The AIR shall be accompanied by the attested copies of the FIR, site sketch/mahazar/photographs of the place of occurrence, driving licence of the driver, insurance policy (and if necessary, fitness certificate) of the vehicle and postmortem report (in case of death) or the Injury/Wound certificate (in the case of injuries). The names/addresses of injured or dependant family members of the deceased should also be furnished to the Tribunal. (iii) Simultaneously, copy of the AIR with annexures thereto shall be furnished to the concerned insurance company to enable the Insurer to process the claim. (iv) The police shall notify the first date of hearing fixed by the Tribunal to the victim (injured) or the family of the victim (in case of death) and the driver, owner and insurer. (iii) Simultaneously, copy of the AIR with annexures thereto shall be furnished to the concerned insurance company to enable the Insurer to process the claim. (iv) The police shall notify the first date of hearing fixed by the Tribunal to the victim (injured) or the family of the victim (in case of death) and the driver, owner and insurer. If so directed by the Tribunal, the police may secure their presence on the first date of hearing.” 7.2. It is not the case of the respondents that they have complied with the instructions so issued. Instead, the respondents are satisfied with referring the case as 'mistake of fact'. Whether this finding would bind the Claims Tribunal? 7.3. Needless to point out that not even the judgment of the Criminal Court is binding upon the Claims Tribunal. The Tribunal is expected to peruse the oral and documentary evidence that is adduced before it and come to an independent conclusion. The first respondent, having been the Superintendent of Police, anybody, who is investigating the criminal case working under the same respondent, would not have the courage to file the charge sheet against the first respondent herein. Even assuming that the referral of the criminal case as mistake of fact is factually correct, even then, the duty of the Claims Tribunal, as contemplated under Section 168 of the Motor Vehicles Act, is to hold an inquiry into the claim. The Tribunal, Constituted under the Act, is not the regular Court and the Tribunal is expected to adopt a proactive approach. It would be useful to consider the scope of enquiry before the Claims Tribunal and it would be appropriate to quote the decision reported in the case of Mayur Arora v. Amit, 2011 (1) TAC 878:- 10.1. The inquiry contemplated under Section 168 of the Motor Vehicles Act, 1988 is different from a trial. The inquiry contemplated under Section 168 of the Motor Vehicles Act arises out of a complaint filed by a victim of the road accident or an AIR filed by the police under Section 158(6) of the Motor Vehicles Act which is treated as a claim petition under Section 166(4) of the Motor Vehicles Act. These provisions are in the nature of social welfare legislation. These provisions are in the nature of social welfare legislation. Most of the victims of the road accident belong to the lowest strata of the society and, therefore, duty has been cast upon the police to report the accident to the Claims Tribunal and the Claims Tribunal is required by law to treat the Accident Information Report filed by Police as a claim petition. Upon MAC.APP.No.609/2009 Page 52 of 116 receipt of report from the police or a claim petition from the victim, the Claims Tribunal has to ascertain the facts which are necessary for passing the award. To illustrate, in the case of death of a victim in a road accident, the Tribunal has to ascertain the factum of the accident; accident having being caused due to rash and negligent driving; age, occupation and income of the deceased; number of legal representatives and their age. If the claimants have not produced copies of the record of the criminal case before the Claims Tribunal, the Claims Tribunal is not absolved from the duty to ascertain the truth to do justice and the Claims Tribunal can summon the investigating officer along with the police record.” 7.4. It would be relevant to quote Section 169 of the Motor Vehicles Act, where-under the Claims Tribunal have been empowered to follow such summary procedure as it thinks fit. Why such wide powers have been conferred upon the Claims Tribunal is the issue to be taken into consideration. Having regard to, (a) the statement of objects and reasons, (b) very large number of people, involved in motor accidents being pedestrian, children, women and illiterate persons, (c) having regard to the higher pedestal in which the Corporations and Insurance Companies have been placed, and the need to strike the balance balance between the poor and the power and (d) the absence of the word 'trial' (the word being used 'inquiry'), the flexible procedures as would suit the nature of the case has to be evolved by the Claims Tribunal. The Tribunal is vested with powers to call anybody to ascertain any fact and to arrive at the correct conclusion. The Tribunal, instead of actively involving itself in ascertaining the truth, has been carried away by the report of 'mistake of fact' filed by the Police. 7.5. The Tribunal is vested with powers to call anybody to ascertain any fact and to arrive at the correct conclusion. The Tribunal, instead of actively involving itself in ascertaining the truth, has been carried away by the report of 'mistake of fact' filed by the Police. 7.5. The importance, necessity and duty to act proactively has been emphatically emphasized by the Hon'ble Supreme Court, in the decision reported in State of Rajasthan v. Ani, AIR 1967 SC 1023, where the relevant observations runs thus:- “11. .... Section 165 of the Evidence Act confers vast and unrestricted powers on the trial Court to put "any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant" in order to discover relevant facts. The said section was framed by lavishly studding it with the word "any" which could only have been inspired by the legislative intent to confer unbridled power on the trial Court to use the power whenever he deems it necessary to elicit truth. Even if any such question crosses into irrelevancy the same would not transgress beyond the contours of powers of the Court. This is clear from the words "relevant or irrelevant" in Section 165. Neither of the parties has any right to raise objection to any such question." 7.6. According to the evidence of the claimant, the accident took place in a small hair pin bend, while the jeep was coming down and the claimant was moving up in his motor cycle. It is comparatively difficult to pick up speed, while moving up and it is quite easy to drive fast while coming down and therefore, it is probable that it is only the vehicle belonging to the respondent, which was coming down, would have been driven in a rash and negligent manner. This inference is supported by the evidence of P.W.1/Baskar. 7.7. Learned counsel for the respondents submitted that the evidence adduced before the Claims Tribunal would establish that there was no negligence on the part of the respondents. 7.8. A perusal of Ex.R-1 reveals that it has been mentioned in Column No.7, whereunder the Magistrate is expected to explain in brief the statement of facts of the case and the reasons for the order. The only line written by the Magistrate is 'mistake of fact of law'. 7.8. A perusal of Ex.R-1 reveals that it has been mentioned in Column No.7, whereunder the Magistrate is expected to explain in brief the statement of facts of the case and the reasons for the order. The only line written by the Magistrate is 'mistake of fact of law'. What are the facts, what is the mistake and what is the law, has not been explained. Whether it is the mistake of law or mistake of fact or combination of both and nothing has been explained. Therefore, the dismissal order based upon Ex.R-1 is unjustified and it cannot be sustained. 7.9. In the evidence of R.W.1, he has stated that he has been driving the vehicle slowly and on seeing the person coming from the opposite side, he stopped his vehicle. 7.10. This part of the evidence of R.W.1 is unbelievable. It is not possible to stop the vehicle suddenly, especially when it is negotiating a curve. However, as R.W.1 has not been cross-examined, the negligence has to be inferred. The cumulative consideration of the evidence of P.W.1 as well as R.W.1 will go to show that at least to a certain extent, the claimant would have been negligent and that negligent can be fixed at 20%. 8. According to the claimant, he suffered two fractures over the left leg and implant has been inserted in two places. According to him, he has spent a sum of Rs.60,000/-towards the medical expenses and the implant is yet to be removed. The Doctor has certified the disability at 35% and has also given evidence before the Tribunal. 9. Further, there is no evidence to show that the claimant has been working as tailor. If that be the case, because of the fracture over the left leg and shortening of leg by 1.5 cms, certainly the loss of earning capacity would be more. But as there is no evidence to show that the claimant has been working as a tailor, the income should be fixed only on notional basis. 10. Considering the nature of injuries, period of treatment and consequent permanent disability and impact of disability upon the earning capacity of the claimant, the quantification is fixed as follows:- 10.1. But as there is no evidence to show that the claimant has been working as a tailor, the income should be fixed only on notional basis. 10. Considering the nature of injuries, period of treatment and consequent permanent disability and impact of disability upon the earning capacity of the claimant, the quantification is fixed as follows:- 10.1. Loss of income, for a period of six months, is fixed at Rs.18,000/- (Rs.3,000/-x 6); towards 35% disability, compensation at the rate of Rs.2,000/- per percentage of disability quantified at Rs.70,000/-; Medical expenses at Rs.63,214/- (restricted to) is fixed at Rs.63,000/-; award towards Pain and sufferings, Transportation charges, extra nourishment, respectively, are fixed at Rs.30,000/-, Rs.10,000/-, Rs.10,000/-. 11. Further, in the evidence of P.W.1, it is stated that plates are to be removed and for the removal of the plates, the claimant has to undergo one more surgery and it will involve future medical expenses. At the age of 34, because of the fracture over the left leg and consequently, shortening of leg, there would be loss of enjoyment of amenities. Therefore, the loss of enjoyment of amenities and future medical expenses for the claimant are quantified at Rs.50,000/-. Thus, the total compensation payable is Rs.2,51,000/-. Reducing proportionate amount of compensation towards 20% of the contributory negligence, the compensation payable is Rs.2,00,800/-. 12. In the result, the Civil Miscellaneous Appeal is allowed. No costs. The dismissal of the claim petition by the Tribunal is set-aside. The respondents shall deposit a sum of Rs.2,00,800/-, along with the interest at 7.5% per annum, from the date of petition till the date of deposit, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the claimant will be entitled to withdraw the same.