The New India Assurance Company Ltd. v. Sekar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 16-02-2009CORAMTHE HONOURABLE MR.JUSTICE S. PALANIVELUC.M.A.No.166 of 2003The New India Assurance Company Ltd.,Arcot Woodlands Complex1, Bharathi Road, Cuddalore ... Appellant/2nd Respondent vs.1. Sekar2. Sivakumar ... Respondents/Claimant & Ist Respondent Civil Miscellaneous Appeal is filed under Section 173 of MotorVehicles Act, 1988, to set aside the decree and Judgment dated15.04.2002, made in M.C.O.P.No.557 of 2000 on the file of the MotorAccident Claims Tribunal (Principal Sub-Court), Cuddalore. For appellant : Mr. S. Manohar For Respondents : Mr. S. Vadivel for M/s. A. Ashokkumar [R-1]JUDGMENT1. In the claim petition, the following are stated:-1. (i) The petitioner is aged about 39 years who was earningabout Rs.10,000/- p.m. by means of his being a Managing Partner insome finance companies. On 5.12.1999 at about 2.30 p.m.while he wasstanding in Post Office but stop in Cuddalore, Bharathi Road, a motorcycle TVS Suzuki, bearing Registration No.TN-31-B-4950, insured withsecond respondent was driven in a rash and negligent manner by itsdriver, dashed against the claimant and hence he suffered multipleinjuries and fractures and hence a sum of Rs.25 lakhs is claimed ascompensation. https://hcservices.ecourts.gov.in/hcservices/

2. In the Counter filed by the Insurance Company it is statedas follows:2.(i) The insurance for the vehicle and the aspect ofpossession of valid driving licence by the driver of the vehicle onthe date of accident are denied. The claimant's age, occupation,monthly income, injuries sustained and the nature of disability arealso denied. The compensation claimed is excessive and exaggeratedand hence the claim petition has to be dismissed.3. In the additional Counter filed by the Insurance Company,it is specifically denied that the road accident had taken place on05.12.1999 and the first respondent vehicle bearing RegistrationTN-31-B-4150 hit the claimant. Both the claimant and the vehicleowner have colluded together to cause loss to the insurance company.The claim is fictitious and imaginary one. The claimant lodged F.I.Rtwo months after the alleged accident. The entire criminalproceedings were managed by the parties in collusion to give a colourof reality for the alleged accident. The claimant is put to strictproof that the accident has really taken place in the manner allegedin the petition.4. The Tribunal after discussing the factual aspects as to theaccident, has reached a conclusion that the driver of the Motor Cyclewas negligent at the time of accident. Liability has been anchoredon the owner of the vehicle . After finding that the accident hadtaken as per the version of the claimant, the Tribunal proceeded toassess the compensation payable to him at Rs.10,08,350/- along withinterest and costs, by this appellant. The said award is challengedbefore this Court.5. The accident is reported to have taken place on 5.12.1999at 2.30 p.m. at Post Office bus stop in Bharathi Road at Cuddalore.However, after about two months only F.I.R. came to be lodged in thepolice station. Two aspects have to be found out in this proceedingon the available materials. Firstly, the reason for the delay inlodging complaint after two months and second is whether the accidenthad taken place as per the version of the claimant.6. In the F.I.R., the claimant has stated that immediatelyafter the accident, he was admitted to a private clinic for first aidand then he was removed to Puthur for treatment, that the occurrencewas witnessed by Prakash, Radhakrishnan and others and that since hehad gone to Puthur and other places for medical treatment, he couldnot lodge the complaint.7. Even though two names have been specifically mentioned inthe F.I.R., both of them were not brought to the witness box to saythat the accident took place on 5.12.1999 as narrated by the https://hcservices.ecourts.gov.in/hcservices/ claimant. In the chief examination, the claimant did not say aboutthe delay in lodging the F.I.R. However , in the crossexamination, he says that at the outset he was admitted to Tamil NaduHospital and since he was unable to spend money for treatment in thesaid Hospital, he went to Puthur and there he took treatment forthree months and again he went to Tamil Nadu Hospital and only aftertaking treatment in Tamil Nadu Hospital for second time, he lodgedF.I.R., that he had no person for assistance to lodge F.I.R, and thatis the reason why he could not do the same in time, that Prakash andRadhakrishnan admitted him in the hospital and left, and afterwardshe did not meet them. In another portion of the cross-examination hesays that in the Tamil Nadu Hospital he obtained discharge summary ontwo occasions, but they are missing and it is false to suggest thatno such discharge summary was issued by the Tamil Nadu Hospital. Healso adds that immediately after the accident, he was admitted to aclinic belonging to Dr.Jawahar Kennedy and he does not know whoadmitted him to the said clinic, that one person was working in hisoffice.8. The above portions in the deposition of the claimant wouldamply show that he has got persons to make information to the policeas to the accident, that he had got adequate opportunities to lodgethe complaint after the accident and that he did not avail any of theopportunity to approach the police. In this regard, there is nooption for the Court except to hold that the reason for the delay inlodging of F.I.R has not been properly shown by the claimant. Ihasten to add that the parties in the civil proceedings are notrequired to explain their contentions beyond any reasonable doubt, asrequired in a criminal case, but suffice it to show that thecontentions stand convincing. Such circumstance is not available inthis matter.9. One Sivakumar has shown to be the accused person in thecriminal case, against whom S.T.C.No.2422 of 2000 was registeredbefore the Judicial Magistrate No.II, Cuddalore and the Charge Sheetwas laid under Sections 279 and 338 I.P.C. In the said case on18.10.2000, the said Sivakumar admitted the offence and paid a fineof Rs.1,000/-. A scrutiny of the case records would show that thesaid Sivakumar is the vehicle owner as mentioned in the claimpetition. Even though he was accused of the offence, he filed hiscounter as if some other person was driving the vehicle at the timeof accident. Even though the claimant placed reliance upon thedocument Ex.P.10, which is the Judgment of Criminal Court, showingadmission by the accused of the offence, the Tribunal Judge has notadverted to it, who simply concluded the matter that the driver/firstrespondent/vehicle owner was responsible in the accident.10. As far as the admissibility of a Criminal Court Judgmentin a civil proceedings is concerned, it is the consistent view ofthis Court that it cannot be relied upon on its face value and some https://hcservices.ecourts.gov.in/hcservices/ other independent evidence has to be put in by the person who triesto establish the fact before the Court. In 2004(2) TNMAC 115 (DB)[Metropolitan Transport Corporation Ltd., v. G. Gnanam @ Gnanamurthy]a Division Bench of this Court has held that the Tribunal is notcorrect in relying on the penalty paid by the driver before theCriminal Court to fix the entire responsibility on the driver. 11. After elaborately having discussed this point on the basisof decision of Division Bench of this Court and the decisions ofother High Courts, this Court in 2004(2) TN MAC 101 [N. Sathidevi &Others v. Giridharan & Another] has held that the admission made inthe criminal proceedings cannot be relied on but the case ofclaimants have to be established independently before the Tribunaland in the said case except the admission made by the driver beforethe Criminal Court, absolutely there is no evidence to conclude thatthe auto involved in the accident . The further observation in thesaid decision is as follows: "22. From the above decisions, it is clearthat the confession made before the Criminal Court isan admission against his interest and the same has tobe taken into account in rendering a decision on therelative stands taken by the parties in thecontroversy. According to the above said decisions,if the party who made admission before the CriminalCourt wants the Tribunal not to rely on it, he has toexplain as to why and under what circumstances, suchevidence was given before the Criminal Court contraryto the real fact."12. While an identical situation arose before me in C.M.A.(NPD) No.2789 of 2002 [National Insurance Co. Ltd., Gobichettipalayamv. Kalaiselvi and others] decided on 26.08.08, I have expressed myview that the Judgment of the Criminal Court indicating theresponsibility of the Driver, contributing negligence on him cannotbe considered to be a deciding factor in a Civil proceeding. But, incase, the Court is able to find some corroborative materials besidesthe decision of the Criminal Court, then there is no stumbling blockto reach a conclusion, fixing responsibility on the driver. In theabsence of any other piece of evidence, the Court cannot solely relyupon the Judgment of the Criminal Court and to reach a decision thatthe driver was at fault. It is also observed thus: "12. Adequate evidence shall be brought torecord to show the negligence on the part of the driverand if the evidence flows only from the Judgment of theCriminal Court convicting the accused/driver, it doesnot have any probative value. Mere acceptance of theguilt by the driver will not by itself establish, thefact that he was the actor of crime as observed by the https://hcservices.ecourts.gov.in/hcservices/ Division Bench of this Court. The Court has to discerncircumstances under which the driver admitted the guiltbefore the Criminal Court which would lead to thefinding of real factors." 13. In my another decision reported in 2009(1) M.L.J. 363 [K.Subramani v. Director of Animal Husbandry, Chennai], I have opined asmentioned above.14. Adverting to the facts of this case, except the oraltestimony of the claimant, there is no other piece of evidence toshow that the accident took place in the manner as described by him.As far as the Criminal Court Judgment is concerned, which is anoutcome of the facts as to the accident, no credence could beattached to it since there is no discussion of the facts as to theaccident. As per the consistent view of this Court, the admission ofthe driver before the Criminal Court cannot be relied upon in a civilproceedings as a sole factor to establish the fact of accident unlessthe said admission is proved to be false or incorrect. Apart fromthe Criminal Court Judgment, even if it was delivered on merits, theparty who relies upon the facts leading to the accident has toestablish before the Civil Court that the accident took place asportrayed by him. If the Criminal Court Judgment is pressed intoservice, then there is no obstacle for the Court to accept othercorroborative materials to strengthen the same. 15. As for the circumstances of this matter, as adverted tosupra, the claimant has woefully failed to show that the accidenttook place as narrated by him in the F.I.R. He has not explained thedelay in lodging the F.I.R. as to the accident at appropriate timeand the loss of time remains untouched. This Court hastens to addthat as in a criminal case where standard of proof is requiredotherwise, the Tribunal or this Court cannot expect a party toexplain the delay in lodging the F.I.R. But once reliance is placedupon the contents in the F.I.R., the back drop of the same leads theCourt to render a judgment, of course on admission of the accused,there is no wrong on the part of a Civil Court to expect that theallegations contained in the F.I.R. are to be shown to be true. Hadthe claimant stated anything in his petition or in his oral evidenceconvincingly as to the delay, then the Court may consider andconclude that the delay was explained. In view of absence of anymaterial to discern that the admission on the part of the accusedbefore the Criminal Court was voluntary one, there is no embargo forthe Court to treat the admission to be not genuine. 16. When a Division Bench of this Court took up a discussionon an identical matter in a case reported in 2007 (2) TN MAC 399 (DB)[ Oriental Insurance Co. Ltd., v. K. Balasubramanian] it has observedthat the judgment of Criminal Court on admission can constitute bestevidence when facts are not proved to be incorrect or false. The https://hcservices.ecourts.gov.in/hcservices/ operative portion of the Judgment goes thus:"It is a well settled proposition of law thatthe judgments of the Criminal Courts are neitherbinding on the Civil Court/Motor Accident ClaimsTribunal no relevant in a Civil Case or a claim forcompensation under the Motor Vehicles Act, except forthe limited purpose of showing that there was acriminal prosecution which ended in conviction oracquittal. But there is an exception to the generalrule. When an accused pleads guilty and is convictedbased on his admission, the judgment of the CriminalCourt becomes admissible and relevant in Civilproceedings and proceedings before the Motor AccidentClaims Tribunal, not because it is a judgment of theCriminal Court, but as a document containing anadmission. Of Course, admissions are not conclusiveproof of the facts admitted therein. But unless anduntil they are proved to be incorrect or false by theperson against whom the admissions are sought to beused as evidence, the same shall be the best piece ofevidence."17. As per the observation in the case supra, even though thejudgment of the Criminal Court is an outcome of admission by theaccused, if the facts were proved to be incorrect or false then thereis no need for the Court to rely upon it. In the considered opinionof the Court, the admission is tainted with incorrect facts and thesame could not form basis for the Court to make observation in favourof the claimant. 18. In the present case on hand the claimant has miserablyfailed to examine any of the witnesses before the Tribunalwho haveallegedly seen the accident. In the absence of no other supportingfactors, mere oral evidence of the claimant and the Criminal CourtJudgment on admission of the accused will not stand for a minute'sscrutiny and it could not be held to support the claim. The fact ofdelay in lodging F.I.R. also lends backing to this view. In suchview of this matter, it has to be necessarily observed that theaccident has not taken place as pleaded by the claimant. 19. In the light of the observations above, on the basis ofthe decisions of this Court and other High Courts, it is held thatthe claimant has not shown that the accident as stated in the claimpetition, by means of which he suffered injuries. In the absence ofsuch demonstration, the claimant has to be non-suited for the reliefprayed for. In my considered view, the award passed by the Tribunalis not sustainable which deserves to be set aside and accordingly itis set aside. https://hcservices.ecourts.gov.in/hcservices/

20. In the result, the Civil Miscellaneous Appeal is allowed.No costs. Connected M.P. is closed. The appellant is permitted towithdraw the compensation amount if it was deposited before theTribunal. Sd/Asst.Registrar/true copy/Sub Asst.Registrarggs ToThe Motor Accident Claims Tribunal (Principal Subordinate Judge), Cuddalore. Copy to:The Section Officer,V.R.Section, High Court, Madras. C.M.A.No.166 of 2003ck(co)pmk/2.3.2009.