JUDGMENT:

(C.M.A No. 25 of 1997)

The Insurance Company has filed the above Civil Miscellaneous Appeal No. 25 of 1997 questioning the correctness of the award passed by the Tribunal in M.C.O.P.No 1610 of 1991.

2. On 23.5.1991 according to the claimants, when one Neelamegam, the husband of the first claimant was proceeding to his office, an autorickshaw bearing Registration No. MDG 1948, owned by the fifth respondent herein, dashed the scooter driven by Neelamegam and he was thrown out and sustained injuries. Immediately, he was taken to the hospital and died there. On that basis, the claimants have claimed a compensation of Rs. 9,00,000/-.

3. The first respondent in the claim petition, namely the owner of the autorickshaw, contested the claim petition contending inter alia that the autorickshaw did not involve in the accident as alleged and so he is not liable to pay any compensation. The second respondent in the claim petition namely Insurance Company, filed a counter stating that there was no rash and negligent driving on the part of the driver, and the investigation revealed that the deceased was a habitual drunkard, and on the date of accident, the deceased was fully drunk, and due to the same, he fell down from the scooter, and the autorickshaw was not there at the time of the accident.

4. The Tribunal, on the basis of the judgment in C.C.No 1098 of 1991, marked as Ex.A2, in which, the driver of the auto pleaded guilty and paid the fine, held that the autorickshaw bearing Registration No. MDG 1948 had involved in the accident, and the accident was due to rash and negligence of the auto driver in driving the auto and on the basis of the said finding, awarded compensation of Rs. 1,74,000/- as compensation. Aggrieved, the Insurance Company, has filed the above Appeal in C.M.A No. 25 of 1997.

5. Learned counsel appearing for the Insurance Company submitted that neither P.W.1 nor P.W.2 had deposed that he scooter belonging to the deceased Neelamegam, involved in the accident. The Tribunal, is not correct in deciding the case, only on the basis of judgment marked as Ex.A.2 According to him, even the confession made by the driver need not be taken into consideration by the Tribunal while deciding compensation and the Tribunal has to decide the issue independently. He has also relied on certain decisions in support of his submission.

6. On the other hand, learned counsel for the respondents strongly relied on Ex.A.2 in support of his submission that if the driver pleaded guilty and paid the fine, the owner of the vehicle cannot raise a defence stating that the autorickshaw bearing Registration No. MDG 1948 had not involved in the accident and the accident was not due to the rash and negligence of the auto driver. He has also relied on certain decided cases in support of his submission.

7. It cannot be disputed that P.Ws.1 and 2 have not deposed to the effect that the autorickshaw MDG 1948 had involved in the accident except saying that an autorickshaw dashed the scooter. Moreover, in the petition, it is stated that Neelamegam, after the accident, was taken by the people to his office, and then to Sowmya hospital on the same day. P.W.2, who claims that he is an eye-witness, was also examined before the Criminal Court, in C.C.No 1098 of 1991. His evidence before the Criminal Court has been extracted, in the said judgment, as follows:

But in the petition, it is stated that from the place of occurrence the deceased was taken to the office and thereafter, he was taken to the hospital. P.W.1, before the Criminal Court deposed that the deceased came to the office after the accident and subsequently the deceased had body pain and so he was sent back to his house and at about 1.30 he was admitted in the hospital. The First Information Report was given only on 24.5.1991 at about 15.00 hrs. The complaint was given by one Durai Thyagarajan, P.W.1 before the Criminal Court. In the said complaint, it is only stated that some vehicle hit the scooter on its back and the deceased was thrown away. He was also stated that the said vehicle was an auto and he has not given the number of the vehicle also.

8. From the above, it is clear that absolutely, there is no evidence available on record to establish that the vehicle of the fifth respondent in the appeal, had involved in the accident, except the confession of the driver of the said vehicle, before the Criminal Court. The order of conviction has been marked as Ex.A2 in this case.

9. So, the question to be decided in this case is whether such a confession has to be accepted irrespective of the face that there is no evidence available to establish the case of the claimants as alleged in the petition with reference to the vehicle of the fifth respondent and also in view of the explanation given by the driver.

10. Before going into the merits of this case, the law on this point laid down by various Courts has to be dealt with.

11. While considering the admissibility of the driver's evidence before the criminal Court, the Division Bench of the Mysore High Court in A. Harsha V. Rai v. Dr. K.V Karna, AIR 1973 Mysore 162, has held as follows:

“... He has also said that from the statement of the owner of the Car and Mr. Kapoor (R.W.2) it turned out that one Balaji Rao was driving the car at the time of the accident and that a charge sheet was filed against the said Balaji Rao, who pleaded guilty and was convicted and fined in the Criminal Court. The alleged driver Balaji Rao was not examined before the Tribunal to explain the circumstances in which the car went up the footpath and dashed against the pedestrian who was walking on the footpath on the right hand side of the road. The Tribunal was, therefore justified in holding that the accident was entirely due to the rash and negligent driving of the car. ...”

12. The learned Judge of Himachal Pradesh High Court, had also held in Bija Ram v. State of Himachal Pradesh Others, 1980 ACJ 352, as follows:

“So far as the next contention of the appellants counsel is concerned that the appellant should be allowed an opportunity to produce additional evidence and to prove the confession of Shri Om Prakash respondent made during the course of the criminal proceedings. I find that there are no good or sufficient grounds to allow any such additional evidence. The confession, at best is an admission and the same could be explained by the person making the confession. In fact in this case Om Prakash respondent has specifically pleaded that the same was made under police pressure and to save himself from harassment of criminal proceedings. The petition for compensation was filed on 11th September 1973 and the appellant had been producing his evidence from 19.6.1974 to 22.2.1978 when the appellant closed his evidence. From the proceeding on the file, I find that sufficient time was allowed to the appellant to produce his evidence and the appellant cannot now be allowed to re-open his case, specially when the evidence which has been produced by the appellant, on facts has not been believed by me. The evidence on record is quite sufficient to dispose of the case in an effective manner and as such this contention of the appellant's counsel is also repelled.

The appellant's counsel also contended that Exhibit P.1, the copy of the judgment in the criminal case establishes that Om Prakash respondent had admitted his guilt. The judgment of the criminal case is not admissible or relevant for any other purpose except for showing that a conviction or acquittal had taken place in a particular case. Moreover, this judgment can only show that the vehicle driver Shri Om Prakash was driving the vehicle rashly or negligently and it does not prove the fact that the appellant was involved in this accident or that the appellant sustained any injuries due to his being hit by the said vehicle. As such I hold that Exhibit P1 is of no value in the present proceedings.”

13. The Division Bench of Madhya Pradesh High Court in Shabbir Ahmed and another v. Madhya Pradesh State Road Transport Corporation and others, 1984 A.C.J 525, while considering admissibility of the evidence in Criminal Court, has held as follows:

“ … The judgment of the Criminal Court contains a reference to the spot inspection made by the Magistrate himself and on that basis the Tribunal has discarded the testimony of Sherinkhan (A.W2) as unreliable. Suffice it to say that this approach of the learned Member of the Tribunal is palpably wrong. Firstly, the claimants were not a party to the proceedings in which the spot map was prepared and secondly the evidence in criminal case cannot be used as a basis for discarding the testimony of a witness recorded before the Tribunal itself. The spotmap prepared by the Magistrate has neither been produced nor proved before the Tribunal by the respondents. Such evidence recorded behind the back of the appellants cannot be used against them. (See Ram Dulare Shukia v. M.P.S.R.T Corporation, 1970 A.C.J 127 (M.P). A mere production of a certified copy of the judgment of the Criminal Court containing a reference to such a spot-map having been prepared by the Magistrate, is no evidence by itself unless it is proved as a fact. Therefore, this evidence should have been excluded from consideration by the Tribunal. ...”

14. While considering the binding force of the acquittal of a driver in the Criminal Court on the Tribunal while deciding the claim for compensation, the learned Judge of the Rajasthan High Court has held in Smt. Prem Kanwar and Others v. Rajasthan State Roadways Corporation and Another, AIR 1987 Rajasthan 146, as follows:

“From the above discussion of evidence, I find that there is sufficient evidence to support the case of the claimants that Sanwant Singh died on 25.4.1979 on account of accident made by a Roadways Bus No. R.R.M.1460 which was being driven by Madan Singh. The mere fact that Madan Singh was acquitted in criminal case is of no avail as far as the present case is concerned because in a criminal case the prosecution has to prove beyond reasonable doubt and the burden always rests on the prosecution, whereas in matters of compensation, it is the preponderance of evidence which decides the matter. Finding of a Criminal Court cannot be binding on a Civil Court and in this connection, reference may be made, to Mrs. Pushpa v. State of Jammu and Kashmir, 1977 ACJ 375: AIR 1977 NOC 277 (J&K).

15. The same view was taken by the Division Bench of the Calcutta High Court in Banya Sarkar v. Sipra Guha Roy and Another, 1992 ACJ 572. have held as follows:

“ In our view it was not necessary on the part of the Claims Tribunal to take into consideration the police report and the deposition recorded by the police. The accused may be discharged or acquitted in a criminal case but that does not show that the accident did not take place or that cannot have any repercussion on the finding of the Claims Tribunal on the basis of the evidence and documents on record. The standard of proof in a Criminal Court and Civil Court is not the same. In the instant case the appellant failed to prove the fact that the said bus did not travel the area where the accident took place as per the stand taken.”

16. The Division Bench of the Madhya Pradesh High Court in Dhanwanti and Others v. Kulwant Singh and Others, 1994 ACJ 708, following its earlier judgment in Shabbir Ahmed v. M.P.S.R.T.C Bhopal, 1984 ACJ 525 (MP), cited supra, has taken the view as follows:

“Coming to the other contention that the deceased was travelling as a passenger and, therefore, the insurance company was not liable to pay any compensation, it has also no merit. True, the F.I.R (Exh.D/2-C) and the statement of the Investigating of Officer give a version which supports the case of the insurance company, but even assuming that the F.I.R is a public document, it is the rule of law that it is not a substantive piece of evidence. It can be used only for the purposes of corroboration or contradiction of the maker only. The maker having not been examined by either side, the statement of A.S Yadav carries no weight as he only investigated the occurrence. He is not an eyewitness to the occurrence. His testimony is of hearsay evidence, therefore, the conclusions which he drew after investigation cannot be taken into consideration unless supported by proper material. It is a well-settled proposition of law that evidence recorded in Criminal Court and the findings arrived at thereon should not be used in claim cases. Such evidence for the purposes of claim cases is inadmissible.”

17. In R. Venkatappa Naidu and Another v. Thammivevi Sugunamna and Others, 1990 ACJ 1080, the learned Judge of the Andhra Pradesh High Court has held as follows:

“ … In C.C.No 95 of 1982 on the file of the Additional Munsif Magistrate, Srikalahasti, the driver has confessed that he had driven the vehicle rashly and negligently and on that basis he was convicted for an offence under Section 304-A of the Indian Penal Code and he was sentenced to pay fine. In view of the fact that the driver himself has confessed that he had driven the vehicle rashly and negligently, though the judgment in the Criminal Court is not binding on the Civil Court, but that admission is admissible under Section 18 of the Evidence Act. Therefore, it constitutes. a substantive evidence in the proceedings under Section 110-A of the Motor Vehicles Act (Act 4 of 1939), for short ‘the Act’…”

18. The Andhra Pradesh High Court in another judgment reported in United India Insurance Co. Ltd. v. Madiga Thappeta Ramakka and Others, 1995 ACJ 358, had also taken the same view holding that mere mention in the Criminal Court's judgment about the driver not having a licence, much less a valid driving licence, is not sufficient and it is well established legal principle that the findings given in Criminal Court Judgments cannot be taken aid and cannot be taken advantage in civil matters.

19. Following the earlier judgment of the same Court reported in Gulshan Kumar v. Balwinder Singh, 1986 ACJ 809 (P&H), the learned Judge of the Punjab and Haryana High Court in Labh Kumar and Others v. Raj Kumar and Others, 1996 ACJ 744, has held as follows:

“After having heard learned counsel for the parties and perusing the paper book, this Court finds merit in the submission of the learned counsel for the appellant. It is settled principle of law that while the judgment of the Criminal Court pertaining to an accident is not relevant for adjudication of a claim for compensation beyond the fact that the driver of the offending vehicle was tried and convicted, any admission of guilt made by him in the course of such a trial in the absence of any explanation or other material on record leads to the only interpretation that the accident was caused due to rash and negligent driving of the driver. This view is based on Gulshan Kumar v. Balwinder Singh, 1986 ACJ 809 (P&H).

As mentioned in the earlier part of the judgment the driver of the offending vehicle pleaded guilty in the criminal case. In view of admission of guilt without any explanation in the present proceedings, a safe conclusion can be drawn that the accident was caused due to rash and negligent driving of the offending vehicle.”

20. Coming to our Court, S. Natarajan, J. (as he then was) in Govind Singh v. A.S. Kailasam, 1975 A.C.J 215, had taken a view holding that —

“more significant is the fact that, when R.W.1 was prosecuted for an Offence under Section 337, I.P.C, he has voluntarily pleaded guilty to the charge framed against him. After having admitted before the Criminal Court that the accident took place due to his rash and negligent driving of the car, there is hardly any force in the present contention of R.W.1 that he did not drive the car rashly or negligently and that he was not to be blamed for the accident. It is no doubt seen that R.W.1 has attempted to reconcile the conflicting positions by projecting a story that his plea of guilt before the Criminal Court was not one of truth, but was one of the convenience, viz., to avoid making frequent visits to the Court to defend the case. This explanation is hardly convincing and, at any rate, cannot be allowed to be successfully projected by R.W.1 An admission against his interest made by R.W.1 either before the Tribunal or elsewhere, has got to be taken into account in rendering a decision on the relative stands taken by the parties in the controversy. In the fact of his own admission in connected proceedings arising out of the same incident it is futile for R.W.1 to contend that the accident was not due to his negligence. This important aspect of the case has been totally lost sight of by the Tribunal.”

21. Even in the recent judgment in The Managing Director, Pandiyan Roadways Corporation, Madurai, etc. v. K. Narayanan, 1998 (3) L.W.522, the learned Judge, following the judgment of this Court in Govind Singh v. A.S Kailasam, 1975 A.C.J 215, cited supra, took the same view.

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 account in rendering a decision on the relative stands taken by the parties in the controversy. According to the abovesaid decisions, if the party who made admission before the Criminal Court wants the Tribunal not to rely on it, he has to explain, as to why and under what circumstances, such evidence was given before the Criminal Court contrary to the real fact.

23. I have to follow the abovesaid decisions to decide the present case but for the decision of the Division Bench of this Court in The Managing Director, Thanthai Periyar Transport Corporation Limited, Villupuram v. Mohammed Jaffer, 1995 (2) M.L.J 317. In the said judgment, while considering the admissibility of the evidence before the Criminal Court, the Division Bench has taken a different view, holding as follows:

“ On the evidence on record we find that it is clear that the accident with respect to which the present petition has been filed by the owner of the van was caused only by the rash and negligent driving of the appellant's bus. In fact, no reliance can be placed by the appellant on the admission made by the driver of the van in the criminal proceedings that he was guilty of rash and negligent, driving. What he had admitted before the Magistrate was only that first the van had capsized on account of his rash and negligent driving which would fall under Section 277, I.P.C even though no third party was involved in that accident. That will not enable the appellant to contend that the same would bind the owner of the van so as to prevent the owner from claiming compensation for the damage caused to the van by the bus. In fact, the accident by which the van has suffered damage is different and not the same one in which the van had capsized.

A passenger in the van has given evidence as P.W.1 Nothing has been elicited from him so as to discredit his evidence. The Tribunal has rightly accepted the same. There is no explanation as to why, the appellant has not examined the driver of the bus. Hence the Tribunal has rightly come to the conclusion that the accident was caused only by the rash and negligent driving of the bus.” (emphasis is supplied)

24. In view of the judgment of the Division Bench, it is clear that the admission made in the criminal proceedings, cannot be relied on. But the case of the claimants have to be established independently, before the Tribunal. In the present case, except the admission made by the driver before the Criminal Court, absolutely, there is no evidence to conclude that the auto bearing registration No. MDG 1948 involved in the accident. P.Ws.1 and 2 had not stated about the same. The Tribunal also decided the case in favour of the claimants only on the basis of the copy of the judgment in C.C.No 1098 of 1991 marked as Ex.A2 and the admission made by the driver in the Criminal Court. So it is clear that the claimants have not established independently before the Tribunal that the said vehicle involved in the accident, though such a dispute had been raised. In the absence of any evidence before the Tribunal, the Tribunal is not correct in holding that the accident took place due to the driving of the driver of the auto bearing registration No. MDG 1948 and thereby, the respondents in the claim petition, are liable to pay the compensation.

25. Hence the appeal filed by the Insurance Company in CM.A.No 25 of 1997 is allowed. Consequently, CM.P.No 168 of 1997 for stay, is closed. In view of the fact that the claimants have not established their case against the respondents in the claim petition, they cannot sustain the appeal in CM.A.No 614 of 1995 and so the said appeal is dismissed. No costs.