IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 MACA.No. 2116 of 2006(A) ----------------------- OPMV.16/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): APPELLANT/PETITIONER ----------------------------------- GEORGE MATHEW, S/O. MATHEW, PAYYAPPALLIL HOUSE, KARIKODU P.O., PERUVA, REP. BY POWER OF ATTORNEY HOLDER, ABRAHAM MATHEW, PAYYAPPALLIL HOUSE, KARIKODU P.O., PERUVA. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): RESPONDENTS --------------------------- 1. DEEPU T.M., THECKUMCHERIL HOUSE, KARIKODU P.O., PERUVA. 2. C.R.MOHANADASAN NAIR, S/O. RAMAKRISHNAN NAIR, CHAMMAKKALAYIL HOUSE, (MANIKANDATHIL), KARIKODU P.O., PERUVA. 3. THE UNITED INDIA INSURANCE COMPANY LTD., KOTTAYAM. ADV. SMT.M.LALITHA NAIR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 2116 OF 2006 = = = = = = = = = = = = = = = Dated this the 26th day of September, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kottayam in O.P.(MV)16/02. The claim petition was dismissed with a cost of Rs.1,000/-. It is the case of the claimant that he sustained injuries in a road accident while he was riding as a pillion rider in the motor bike bearing Reg.No.KL5G/3059 driven by the 2nd respondent. The insurance company denied the same and contended that the injuries were sustained by his own negligent conduct or riding. The Tribunal after elaborate consideration of the materials came to the conclusion that the accident had taken place on account of the negligent driving of the rider of the motor bike. The Court relied upon Exts.B2 to B5 statements of occurrence witnesses. Exts.B2 to B5 statements are recorded by the investigation officer u/s 161 Cr.P.C. from the occurrence witnesses. They have stated that petitioner himself was riding the motor bike M.A.C.A. 2116 OF 2006 -:2:- involved in the accident and he sustained injuries when it ran over a bump and went out of control thereby over turning. It is also stated by the witnesses that the police party who unexpectedly reached the place of occurrence sent the injured person to the hospital. This fact was recorded in the general diary of that particular day. So if Exts.B2 to B5 statements are admissible and acceptable in evidence then it has to be held that it was the claimant who was riding the bike and it was on account of running over a bump the vehicle over turned resulting in injuries to him thereby disentitling him to get any compensation. The learned counsel would strongly contend that a statement recorded u/s 161 of the Cr.P.C. cannot be used as evidence and it can be only used for the purpose of contradiction or corroboration. The argument of the learned counsel is perfectly correct when it relates to the criminal case where the said statement is recorded. But whether such statements can be used by the Courts in writ proceedings or a civil proceedings came up for consideration before the Apex M.A.C.A. 2116 OF 2006 -:3:- Court in the decision reported in Khatri v. State of Bihar (AIR 1981 SC 1068). The Supreme Court in paragraph 3 held that, “The protection under S.162 Cr.P.C. is granted to the accused and that protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar. It has no application, for example in a civil proceeding or in a proceeding under Art.32 or 226 of the Constitution and a statement made before a police officer in the course of investigation can be used as evidence in such proceeding, provided it is otherwise relevant under the Evidence Act. Therefore, even a statement made before a police officer during investigation can be produced and used in evidence in a writ petition under Art.32 provided it is relevant under the Evidence Act and S.162 cannot be urged as a bar against its production or use.” 2. A Division Bench of the Karnataka High Court had also the opportunity to consider the very same question that M.A.C.A. 2116 OF 2006 -:4:- too in a motor accident case reported in Savitribai v. Doddappa 1981 ACJ 422. The learned Judges after elaborately considering the case law with reference to Bharat Singh v. Bhagirathi (AIR 1966 SC 405) and Bishwanath v. Dwarka Prasad (AIR 1974 SC 117) held that it can be used. “Therefore, it is obvious that an admission made by the owner of the truck before the police during investigation of the criminal case against the driver would be relevant and admissible in the proceedings before the Tribunal. Section 162 of the Criminal Procedure Code would not be a bar.” 3. So far as this case is concerned the statements recorded in the form of Exts.B2 to B5 are really relevant for the purpose of determination of the case. When it is relevant and admissible then it goes without saying that what is recorded therein would indicate that it was the claimant who was riding the bike and the accident took place only on account of his own act. Therefore I do not find any mistake M.A.C.A. 2116 OF 2006 -:5:- committed by the Tribunal in arriving at the decision disallowing the claim. Therefore the appeal fails and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/-