IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26-08-2008 CORAM THE HONOURABLE MR.JUSTICE S. PALANIVELU C.M.A.(NPD)No.2789 of 2002 National Insurance Co. Ltd., Gobichettipalayam ... Appellant/3rd Respondent vs. 1.Kalaiselvi, 2.N.Sangarappan, 3.T.Thirumurthy ... Respondents/Petitioner 1st and 2nd Respondents Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the Judgment and decree dated 12.02.2002 and made in M.A.C.T.O.P.No.4 of 2000 on the file of the Motor Accident Claims Tribunal (2nd Additional Sub-Judge), Gopichettipalayam. For appellant : M/s.N.B. Surekha For respondents : Mr.S. Ganesamurthy [for R-1] Mr.B. Kumarasamy [for R-3] JUDGMENT On 25.06.1998 at about 8.00 a.m. while the first respondent was going to attend her call of nature in Shenbagapudur, the tempo bearing Registration No.TN-37-5037 driven by its driver in a rash and negligent manner, dashed against the petitioner and caused her injuries. She was immediately removed to Sathyamangalam Government Hospital and for further treatment referred to Coimbatore Medical College Hospital. She was earning a sum of Rs.3,000 – 6,000 by running a tea stall. She was aged 35 years at the time of accident. After the accident, she was unable to run tea stall. She is suffering from giddiness frequently, partial vision loss in her eye. The accident had occurred only due to the negligence on the part of the tempo driver. Hence compensation of Rs.3,00,000/- was claimed. 2. In the counter filed by the third respondent/appellant herein, it is stated that the accident took place only due to the negligence and the carelessness of the claimant. In the F.I.R., there is no mention about the name of the driver or his whereabouts and the Registration https://hcservices.ecourts.gov.in/hcservices/ Number of the Van, alleged to have hit the petitioners. The other particulars with regard to the Van driver have been manipulated and introduced to develop the case with a bad intention to claim an illegal compensation. The Tempo van with Registration No.TN-37-5037 has been shown in the case records only with a purpose of claiming compensation and it is not the vehicle which dashed the petitioner on that day at that odd hour. With the connivance of police and other interested parties, with a purpose of creating record, the driver/second respondent herein, was compelled to appear before the police and court and forced to admit the offence with malafide intention to claim compensation and thus to make the driver/second respondent herein, liable to pay compensation. The admission by the driver/second respondent herein, which resulted to convict him could not be the basis for award of compensation. The injuries sustained by the claimant, which are simple in nature. The compensation claimed under various heads is disproportionate. Hence the petition may be dismissed. 3. After analysing the oral and documentary evidence on record, the Tribunal has come out with a conclusion that the driver/first respondent before the Tribunal, was responsible for the accident. On the scrutiny of the documents and on consideration of the settled legal position on this point, this Court is of the considered view that the Tribunal has woefully failed to appreciate the factual back ground as well as legal principles in its proceedings, for the following reasons. 4. The backbone contention of the claimant is that since the second respondent herein, who was driver of tempo van at the time of the accident, voluntarily admitted his offence before the criminal court and paid the fine, admitting his negligence to cause the accident, it is to be held that Tribunal had to fasten responsibility on him. Accepting to the contention of the claimant side the Tribunal has observed that since charge sheet was laid against the second respondent/driver, who has also admitted the offence and paid penalty before the criminal Court as evidenced from Ex.P.4, he was negligent at the time of accident. 5. Learned counsel for 1st respondent/claimant would contend that inasmuch as second respondent/driver himself voluntarily admitted the offence before the Criminal Court, the finding furnished by the Tribunal is proper and there is no necessity to interfere. In support of his contention, he draws attention of this Court to the decision of Division Bench of Karnataka High Court reported in 1985 ACJ 789 [Basavaiah v. N.S. Ashok Kumar and another] in which it is held that as the driver of the offending vehicle on his own plea of guilty to the charge of rash and negligent driving, he was convicted and sentenced, that being so, the Car driven by him in a rash and negligent manner resulted in the accident causing injury to the claimant. https://hcservices.ecourts.gov.in/hcservices/ 6. It is to be noted that the proof in criminal case is different from that in civil case. In a criminal case, the prosecution has to establish the guilt of the accused beyond reasonable doubt while in a civil case it has to be inferred on preponderance of probabilities. In the light of the oral evidence and the relevant references in the records, the Court has to see whether the guilt of the person was established. No conclusion shall be reached that findings and decision in the Criminal Court could not at all be relied upon by the Civil Court, but the circumstances of the case, in both the cases, and the events could be appreciated by the Civil Court without considering nature of proof of the matter concerned in criminal court proceedings. As regards identical issue, witnesses and evidence before the two courts might be different and different versions may come out. The persons examined before the criminal court might not be even brought before the Civil Court and vice versa, so also the production of documents. It is possible, in both the courts, the witnesses being one and the same but their versions could be different. 7. As adverted to supra, the nature of proof before both courts is not similar. If the Civil Court is able to gather or find any valuable piece of evidence before it irrespective of the verdict of the criminal Court, there is no embargo on its part to arrive at its own decision on the strength of the result of the criminal court proceedings. It is necessary that the Civil Court has to appreciate the evidence on record independently without evaluating the evidence put forth before the Criminal Court. 8. It is well settled that the Judgment of the Criminal Court may provide corroboration to the evidence adduced by the claimant, but never be the sole decisive factor ton infer negligent driving. Negligence is required to be established by necessary evidence. If the evidence before the Civil Court is convincing and if they themselves prove a particular aspect, irrespective of the decision of the Criminal Court, the Civil Court can reach a conclusion on its own. 9. The Learned counsel for the appellant/Insurance Company laboured hard to show that even though the driver had admitted the offence before the Criminal Court, it is not at all binding on the Tribunal and the Tribunal should not have arrived at a conclusion that the driver was at fault, ignoring the other piece of evidence very much available in the case. He gathered support from a Division Bench decision of this Court and various High Courts. In the case reported in 2004 (2) TN MAC 101 [N. Sathidevi & others vs. V. Giridharan & another] wherein the learned single Judge has observed as under: "22. From the above decisions, it is clear that the confession made before the Criminal Court is an admission against his interest and the same has to be taken into https://hcservices.ecourts.gov.in/hcservices/ account in rendering a decision on the relative stands taken by the parties in the controversy. According to the above said decisions, if the party who made admission before the Criminal Court wants the Tribunal not to rely on it, has to explain, as to why and under what circumstances, such evidence was given before the Criminal Court contrary to the real fact." 10. A Division Bench of this Court in a decision reported in 2004 (2) TN MAC 115 (DB) [The Managing Director, Thanthai Periyar Transport Corpn., v. Mohammed Jaffer] has held that the Tribunal is not correct in relying on the penalty paid by the driver before the Criminal Court to fix the entire responsibility on the driver. 11. In view of the consistent view taken by this court it has to be held that the Judgment of the Criminal Court indicating the responsibility of the Driver, contributing negligence on him cannot be considered to be a deciding factor in a Civil proceeding. But, if in case, the Court is able to find some corroborative materials besides the decision of the Criminal Court, then there is no stumblinc block to reach a conclusion, fixing responsibility on the driver. In the absence of any other piece of evidence, the Court cannot solely rely upon the Judgment of the Criminal Court and to reach a decision that the driver was at fault. 12. Adequate evidence shall be brought to record to show the negligence on the part of the driver and if the evidence flows only from the Judgment of the Criminal Court convicting the accused/driver, it does not have any probative value. Mere acceptance of the guilt by the driver will not by itself establish, the fact that he was the actor of crime as observed by the Division Bench of this Court. The Court has to discern circumstances under which the driver admitted the guilt before the Criminal Court which would lead to the finding of real factors. 13. The court has to see whether any other material is available in this case to strengthen the Criminal Court Judgment. The learned counsel for the appellant would draw attention of this Court to the entries available in the Motor Vehicle Inspection Report Ex.A.3 in which it is stated that the offending vehicle with Registration No.TN-37-5037 Tata 1963 open, belongs to third respondent. If nothing is found in the F.I.R. as to the Registration Number of the vehicle and in case if any other subsequent documents emerges without loss of time during the investigation undertaken by the police immediately after registration of F.I.R., the Court can see the particulars in the subsequent document are true. But in the event of subsequent document being brought with considerable delay, with certain particulars, the Court will hesitate to place reliance upon those documents. If such delay is found in the production of the document is satisfactorily explained then there is no obstacle for the Court to believe the same. https://hcservices.ecourts.gov.in/hcservices/ 14. At this stage this Court is also the conscious of a fact that strict proof in the matters like this are not required as expected in the criminal proceedings. But in order to unearth the truth there is no impediment for the Court to adopt such procedures to appreciate the documents in the light of the settled principles. 15. Of course Motor Vehicle Inspector's Report originated subsequently to the registration of the case. Concededly F.I.R. does not contain the registration number of the vehicle. It is stated therein that while the claimant was attending to the call of nature, she saw a tempo van coming in a hectic speed that she stood up, however, the van dashed against her and she fell down and that the Tempo Van fled away. The accident took place at 8.00 p.m. on 25.06.1998 and the F.I.R. was lodged at 11.00 p.m. on the same day. Only after three days i.e., on 28.06.1998 at 11.30 a.m. the vehicle was inspected by the Motor Vehicle Inspector, as seen from his report Ex.A.3, which came to the scene after three days and by means of delay, this Court is unable to place reliance upon the documents since after certain deliberations, vehicle could have been fixed by the concened. 16. Learned counsel for the appellant draws attention to the discrepancy in the Accident Register as well as claims petition with reference to the registration number of the vehicle. As adverted to supra, if any document which emerges immediately after the F.I.R. then the court can believe the particulars contained thereon and if any discrepancy is found, the Court has to turn down the claim of the person who places reliance on the document. As stated above, the accident took place at 8.00 p.m. on 25.06.1998. On the same date itself at 10.30 p.m. the claimant was admitted to the Government Hospital and she has stated before the doctor that she was hit by Tempo bearing Registration No.TCY 7595 at Shenbagapudur, Sathyamangalam Taluk. This material piece of evidence would show that the claimant was not definite about the vehicle. It can be stated that she is an illiterate village lady, who could not find out the number of offending vehicle. Had she not mentioned before the Doctor about the Registration Number of the vehicle, the finding of the Court would have been different. But it is her definite version before the doctor that the registration number of Tempo Number was TCY 7595. In view of such discrepancy crept into the document which originated immediately after the lodging of F.I.R., neither Motor Vehicle Inspector's Report nor any other subsequent documents such as Charge Sheet or the Criminal Court Judgment would stand. It is not shown whether the third respondent's vehicle was involved in this accident and hence no question of fastening liability on the appellant Insurance Company would arise, since the Judgment of the Criminal Court does not receive any corroboration from other materials available in this case. https://hcservices.ecourts.gov.in/hcservices/ 17. In view of the discussion and the observations made above, the finding of the Tribunal in observing that the Tempo driver was at fault at the time of accident. The reliance placed by the Tribunal on the entries present in Ex.A.3 is not sustainable in view of the discrepancy available in the Accident Register. Hence the findings of the Tribunal has necessarily to be set aside and it is accordingly set aside. Consequently the direction for compensation shall also be set aside and the appeal deserves to be allowed. 18. In fine, the appeal is allowed by setting aside the award passed by the learned Second Additional Sub-Judge, Motor Accident Claims Tribunal, Gobichettipalayam in M.A.C.T.O.P.No.4 of 2000 dated 12.02.2002. 19. Learned counsel for the appellant submits that the award amount has been deposited before the Tribunal and one-third of the same has already been withdrawn by the claimants. It is directed that the appellant may recover one-third of the award amount already withdrawn by the claimants from the owner of the vehicle, namely the third respondent and the appellant is permitted to withdraw the balance amount available in the deposit. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ggs To 1. The 2nd Additional Sub-Judge, Motor Accident Claims Tribunal, Gopichettipalayam. 2. The Record Keeper, V.R.Section, High Court, Madras. 1 cc To Mr.N.B.Surekha, Advocate, SR.47838. C.M.A.(NPD)No.2789 of 2002 KA(CO) RVL 25.09.2008 https://hcservices.ecourts.gov.in/hcservices/