IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 MACA.No. 570 of 2008() ---------------------- OPMV.948/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S)/PETITIONERS IN OP(MV) NO. 948/02 --------------------------------------------------------- 1. ANIES SOY, W/O.LATE SOY, AGED 33 YEARS, KALATHOOR HOUSE, CHELAD P.O., KOTHAMANGALAM (VIA), NOW RESIDING AT ARAKKAL HOUSE, MACHIPLAVU KARA, MANNAMKANDAM VILLAGE, ADIMALY, IDUKKI DISTRICT. 2. BABY ANIES @ SONY SOY, AGED 6 YEARS, KALATHOOR HOUSE, CHELAD P.O., KOTHAMANGALAM (VIA), (MINOR), REPRESENTED BY ANIES SOY, KALATHOOR HOUSE CHELAD P.O., KOTHAMANGALAM, NOW RESIDING AT ARAKKAL HOUSE, MACHIPLAVU KARA, MANNAMKANDAM VILLAGE, ADIMALY, IDUKKI DISTRICT. BY ADV. SRI.ALEXANDER JOSEPH RESPONDENT(S): RESPONDENTS -------------------------- 1. JOMON JACOB, KALATHOOR HOUSE, ANAKULAM P.O., MANKULAM, IDUKKI DISTRICT. 2. K.K.SANTHOSH, KARIPPARAKUDY HOUSE, ALLAPARA P.O., PERUMBAVOOR. 3. THE NEW INDIA ASSURANCE CO.LTD., BRANCH OFFICE, PERUMBAVOOR. ADVS. SRI.G.SREEKUMAR (CHELUR) FOR R1 SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. --------------------------------------------------------- M.A.C.A. NO. 570 OF 2008 --------------------------------------------------------- Dated this the 8th day of April, 2009 JUDGMENT Ravikumar, J. The claimants in O.P.(MV) No. 948 of 2002 before the Motor Accidents Claims Tribunal, Muvattupuzha are the appellants herein. They are the wife and minor son of one Soy who succumbed to the injuries sustained in an accident which occurred on 26.3.2002. In the said petition filed under Section 166 of the Motor Vehicles Act (hereinafter referred to as “the Act”), they staked a claim for Rs.4,00,000/- as compensation contending that the deceased was engaged in construction work and was earning a monthly income of Rs.4,000/-. The Tribunal dismissed the claim petition and hence, this appeal. PWs.1 and 2 were examined and Exts.A1 to A12 were marked on the side of the claimants. Exts.B1 to B7 were marked on the side of the respondents and Ext. X1 is the witness exhibit. 2. 'Who is responsible for the accident?' was the first issue M.A.C.A. NO.570/2008 2 formulated for consideration. While considering the same, the question as to who was driving the vehicle involved in the accident had emerged mainly in the light of the specific contention raised by the third respondent/insurer that the deceased who was driving the vehicle was solely responsible for the accident. The Tribunal, in order to arrive at an answer to the said issue, engaged in a forensic scrutiny of the evidence adduced. Admittedly PW.1, the first appellant herein had not seen the accident and hence, the Tribunal rightly opined that her evidence would not be helpful for deciding the aforesaid issue. PW.2 was cited as an eye witness. Ext.B2 is the copy of the F.I.R. in Crime No. 69 of 2002 of Munnar Police Station. It is registered on 27.3.2002 at 8.30.a.m. in respect of the accident which occurred on 26.3.2003 which resulted in the death of the said Soy. Ext.X1 Case Diary produced at the instance of the third respondent would show that the statement was given by the first cousin of the deceased. The relevant portions of the First Information Statement have been extracted in pages 8 and 9 of the impugned award. The long and short of the statement extracted therein is that the jeep involved in the accident was driven by the deceased himself and that the accident occurred when the said jeep tumbled down. It is further stated therein that the first informant was a witness to the said accident and he along with PW.2 and another took the deceased from beneath the jeep and M.A.C.A. NO.570/2008 3 had taken him to the hospital. Though PW.2 in chief examination testified that the jeep in question was driven by the first respondent, he admitted that Exts.B6(a) and B6(b), the first and fifth sentences respectively of paragraph X(1), page 9 of the Inquest Report, were given by him to the police wherein he had stated that it was the deceased who was driving the jeep at the time of the accident. He had denied the factum of his examination in the Magistrate's Court. However, Ext.B7 would reveal that he was examined as PW.5 in C.C. No.273 of 2002 of the Judicial First Class Magistrate's Court, Devikulam. It would further show that he had given evidence in favour of the first respondent herein who is none other than the brother of the deceased Soy and at the same time he had given evidence against the first respondent before the Tribunal. After a careful consideration of his evidence, the Tribunal came to the conclusion that his version that the jeep involved in the accident was driven by the first respondent was not reliable. The case of PW.1 is that it was to ensure the chance of employment of the first respondent in a foreign country that the deceased was shown as the driver of the jeep in Ext.B2. 3. The Tribunal found that PW.2 had given Exts.B6(a) and B6(b), without any deliberation, soon after the accident and the same were prepared by a Government servant in discharge of his statutory duty. It is M.A.C.A. NO.570/2008 4 further found that the said documents corroborate the versions in the First Information Statement which is actually an eye witness account, according to the Tribunal. The appellants/petitioners raised a contention relying on Ext.A8 final report filed by the police and the scene mahazar that it was the first respondent who was driving the vehicle. They sought to substantiate the same contending that had the deceased been driving the vehicle he would not have reached on the left side to put stones behind the rear tyre of the jeep. The Tribunal held that the final report by the police cannot be treated as gospel truth. The Tribunal further declined to accept the aforesaid contention which is founded on probability. It was held that no convincing evidence was adduced by the appellants/petitioners to prove that it was the first respondent who was driving the jeep at the relevant point of time and preferred to rely on Exts.B6(a), B6(b), Ext.B7 and the First Information Statement to hold that they had failed to prove that the first respondent was driving the jeep. Counsel for the appellant contended that the said finding is perverse and illegal. It is a fact that the appellants had failed to prove that it was the first respondent who was driving the jeep as contended by them and at the same time the aforesaid documents suggest that it was driven by the deceased. In view of the said finding, the decision relied on by the appellants reported in New India Assurance Co. Ltd. v. Santhamma, M.A.C.A. NO.570/2008 5 1997(1) K.L.T. 118 cannot have relevance at all. In the circumstances, we are unable to uphold the contention of the appellants that the first respondent was driving the jeep. 4. Confronted with the aforesaid situation, the appellants prayed for invoking the doctrine of res ipsa loquitur. In an action for negligence, the legal burden of proof rests on the claimants. But, barring certain exceptional cases, it may not be possible for the claimants to know precisely as to what led to the accident. This hardship can be averted by the application of the doctrine res ipsa loquitor and in essence it is a rule of evidence. The Tribunal had considered whether the said principle is applicable in the facts and circumstances of the case. As stated earlier, Exts.B2, B6(a) and B6(b) documents would suggest that it was the deceased who was driving the jeep involved in the accident and there was no convincing evidence to prove otherwise or to prove that it was the first respondent who was driving the said jeep. In the circumstances, it can only be said that the Tribunal was right in rejecting the request for applying the said doctrine for inferring negligence. It was after a very careful consideration of the oral and documentary evidence that the Tribunal arrived at the conclusion that it is discernible from the evidence adduced in the case that the accident in question had occasioned due to the negligence M.A.C.A. NO.570/2008 6 of the deceased taking into account the fact that the appellants have failed to prove that it was the first respondent who was driving the jeep as claimed and contended. In short, they have failed to establish negligence which is the foundation of a claim under Section 166 of the M.V. Act. The finding of the Tribunal that the claimants are not entitled to compensation in the said circumstances is only an inevitable consequence of such a finding. 5. The aforesaid discussions would lead us to the conclusion that there is absolutely no reason to interfere with the findings of the Tribunal with respect to the question as to who was responsible for the accident and who was driving the jeep at the relevant time. Consequently, the other issues viz. what, if any, is the quantum of compensation the appellants are entitled to get and who is liable to pay the compensation, call for no consideration, as rightly held by the Tribunal. 6. Learned counsel for the appellants when faced with the aforesaid situation made a submission that the claim petition filed under Section 166 of the M.V. Act, in the circumstances, may be treated as one filed under Section 163 A of the M.V. Act. In the claim petition, the claimants had categorically stated that the deceased was a person earning Rs.4,000/- per M.A.C.A. NO.570/2008 7 mensem. Thus, going by their own claim, the deceased was having an annual income which exceeds Rs.40,000/-. If that be so, the claimants are disentitled from raising a claim under Section 163 A of the M.V. Act in the light of the decision of the Honourable Apex Court reported in Deepal Girishbhai Soni v. United India Insurance Co. Ltd. 2004(2) K.L.T. 395 (SC). We cannot, therefore, accept the submission of the counsel for the appellants. 7. Lastly, counsel made a submission that the claim petition may be considered as a petition filed under Section 22 of the Workmen's Compensation Act in case it cannot be treated as a petition under Section 163 A of the M.V. Act. Three basic pleadings are necessary to maintain a claim under the Workmen's Compensation Act. They are (i) the injured/ deceased was a workman as defined under the said Act, (ii) there exists employer - employee relationship between the injured/deceased and the person who is shown as the employer and (iii) the injury/death had occurred in the course of and arising out of the employment. Conspicuously, the above mentioned basic pleadings are lacking in the claim petition. If it be so, the claim petition cannot be treated and converted as a petition under Section 22 of the Workmen's Compensation Act. M.A.C.A. NO.570/2008 8 8. In view of the aforesaid discussions, we are of the opinion that the impugned award calls for no interference. The appeal is accordingly dismissed. However, we make it clear that the dismissal of this appeal will not take away the right available, if any, of the appellants to claim any benefit under the Workmen's Compensation Act, provided such a claim is legally maintainable and sustainable. (R. BASANT) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ M.A.C.A. NO.570/2008 9 R. BASANT & C.T. RAVIKUMAR, JJ. M.A.C.A. NO.570/2008 JUDGMENT 8th April, 2009 M.A.C.A. NO.570/2008 10