MATHEW ALEXANDER versus MOHAMMED SHAFI AND ANR. on 13 July 2023

[2023] 10 S.C.R. 1083 : 2023 INSC 621

MATHEW ALEXANDER

v.

MOHAMMED SHAFI AND ANR.

(Criminal Appeal No. 1931 of 2023)

JULY 13, 2023

[B. V. NAGARATHNA ANDPRASHANT KUMAR MISHRA, JJ.]

Code of Criminal Procedure, 1973 : s. 482 – Quashing offinal report – Motor accident matter – Rash and negligent driving– Appellant’s son was driving a car which collided with the gastanker lorry – Death of appellant’s son and five others travelling inthe car – Claim petition by the respondent no. 1 and the legalrepresentative of the deceased passengers – Claim petition also filedby the appellant against the driver and the insurer of the tankerlorry, and against the owner – FIR against the appellant’s son u/s.279 and 304 A, however, abatement of charges against him on hisdeath – Submission of the final report by police that the incidentwas an unavoidable accident, not attributable to negligence on thepart of the appellant’s son – Two years later, petition u/s. 482 by therespondent no. 1 for quashing of the final report – High Courtquashed the final report – On appeal, held : Opinions expressed bythe High Court which are in the nature of findings while consideringthe correctness of the final report and thereby quashing the samewas, not a correct and proper approach adopted by the High Court– Order passed by the High Court is set aside – Penal Code, 1860– ss. 279, 304 A.

Motor Vehicles Act, 1988: Motor accident – Claim forcompensation – Negligence – Burden of proof – Held : Motoraccident matter has to be considered on the basis of preponderanceof the possibilities and not on the basis of proof beyond reasonabledoubt – On facts, in a claim petition by the appellant allegingnegligence on part of the driver of the tanker lorry and the pick upvan in causing the accident resulting in the death of his son andfive others travelling with him, alleged negligence on the part ofthe driver of the tanker lorry and pickup van in causing the accidenthas to be proved – It was for the appellant to establish negligence

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Aon the part of the driver of the tanker lorry – Opinion in the finalreport that the incident was an unavoidable accident, not attributableto negligence on the part of the appellant’s son, would not have abearing on the petition – In the claim petitions filed by the dependentsof the other deceased passengers, they have to similarly establishthe negligence in accordance with law.B

Allowing the appeal, the Court

HELD: 1.1 The High Court made observations which arein the nature of findings while considering the correctness orotherwise of the final report impugned before the High Court.CFurther, the observations of the High Court to the effect that thecar driven by the appellant’s son, was being driven rashly; thatthe car had gone astray to the wrong side; that the possibilitythat the driver of the car had driven the car after consumingalcohol cannot be ruled out; that rashness and negligence on thepart of the driver of the car is patent and that this is a clear caseDin which the principle of res ispa loquitor applies, are in the natureof findings which were wholly unnecessary to be made whileconsidering the correctness or otherwise of the final reportsubmitted on further investigation of the case. It is on the basisof the said observations which are in the nature of findings thatEthe High Court has quashed the report made pursuant to furtherinvestigation by opining that the incident is attributable to therash and negligent driving of the Alto car. The opinions expressedwhich are in the nature of findings while considering thecorrectness or otherwise of the final report submitted on a furtherinvestigation of the case and thereby quashing the same is, not aFcorrect and proper approach adopted by the High Court. Hence,the impugned order of the High Court is liable to be set aside.[Para 8][1088-D-H; 1089-A]

1.2. Insofar as the claim petition filed by the appellant isconcerned, alleged negligence on the part of the driver of theGtanker lorry and pickup van in causing the accident has to beproved. That is a matter which has to be considered on the basisof preponderance of the possibilities and not on the basis of proofbeyond reasonable doubt. It is left to the parties in the claimpetitions filed by the appellant or other claimants to let in theirHrespective evidence and the burden is on them to prove negligence on the part of the driver of the Alto car, the tankerlorry or pickup van, as the case may be, in causing the accident.In such an event, the claim petition would be considered on itsown merits. If the proof of negligence on the part of the driversof the three vehicles is not established then, in that event, theclaim petition would be disposed of accordingly. [Para 9][1089-B-D]

1.3. It is for the appellant to establish negligence on thepart of the driver of the tanker lorry in the petition filed by himseeking compensation on account of death of his son in the saidaccident. Thus, the opinion in the final report would not have abearing on the claim petition for the said reasons. This isbecause the appellant is seeking compensation for the death ofhis son in the accident which occurred on account of thenegligence on the part of the driver of the tanker lorry, causingthe accident on the said date. In the claim petitions filed by thedependents, in respect of the other passengers in the car whodied in the accident, they have to similarly establish thenegligence in accordance with law. The impugned order of theHigh Court is set aside. [Paras 10 and 11][1090-A-C]

N.K.V. Bros. (P) Ltd. vs. M. Karumai Anmal AIR 1980SC 1354 : [1980] 3 SCR 101; Bimla Devi vs. HimachalRoad Transport Corporation (2009) 13 SCC 530 :[2009] 6 SCR 362; Dulcina Fernandes vs. JoaquimXavier Cruz (2013) 10 SCC 646 : [2013] 10 SCR 480– referred to.

From the Judgment and Order dated 31.03.2022 of the High Courtof Kerala at Ernakulam in CRLMC No. 4870 of 2021.

G. Prakash, Mrs. Beena Prakash, Ms. Priyanka Prakash, Advs.for the Appellant.

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ANishe Rajen Shonker, Mrs. Anu K Joy, Alim Anvar, A. Karthik,Ms. Sreepriya K., Ms. Smrithi Suresh, Arsh Khan, Ms. Neeta SanjaySavale, Advs. for the Respondents.

The Judgment of the Court was delivered by NAGARATHNA J.B

Leave granted.

2. The Appellant herein is aggrieved by the quashing of the opinionformed as per final report in pursuant to the further investigation in CrimeNo.1/2015 registered at Chathannoor Police Station, by the High Courtin its order dated 31.03.2022.C

3. Briefly stated the facts are that an FIR bearing No.01/2015was registered by the complainant against the Appellant’s son beforethe Chathannoor Police Station invoking Sections 279 and 304A of theIPC. The FIR stated that on 01.01.2015, at around 2.15 am, Appellant’sDson, Nixon Abey Matthew, aged 20 years, was driving a Maruti Alto carbearing No. KL 2 AC 1370 through the Kollam-ThiruvananthapuramNational Highway from East to West direction on the left side of theroad, along with his friends. When the car reached Seemati, Chathannoor,a gas tanker lorry bearing registration No. KL 39 C 4577, driven byRamar in an utmost rash and negligent manner, hit the Maruti Alto carEand in the said accident, Appellant’s son and five others travelling in thecar died. Claim petitions have been filed by Respondent No.1 herein andother legal representatives of the deceased passengers in the car beforethe Motor Accident Claims Tribunal, Kollam seeking compensation forthe death of their kin on whom they were dependent. Respondent No.1Fherein also has filed a claim petition in which the deceased son of theAppellant was named as Respondent No.4 and the driver of the tankerlorry, Ramar, is named as Respondent No.2. The said claim petition isalso pending.

4. A final report was filed by the Assistant Commissioner of Policein the case arising out of FIR No.1/2015. It was also mentioned in theGchargesheet that the charges against the Appellant’s son had abated ashe died in the accident. However, on the basis of the complaint made bythe Appellant herein regarding irregularities in the conduct of theinvestigation, the District Police Chief, Kollam, directed the AssistantCommissioner of Police, Chathannoor to undertake a thorough H

MATHEW ALEXANDER v. MOHAMMED SHAFI AND ANR.[B. V. NAGARATHNA J.]

investigation in the matter and further investigation commenced in thematter by the order of the JMFC, Paravur, Kollam under Section 173(8)of the CrPC and the final report was to be filed in accordance with law.It is also necessary to mention that the claim petition filed by the Appellantherein is against the owner and driver of the tanker lorry which is said tohave collided with the Alto car driven by his son, as also against theinsurer of the tanker lorry alleging negligence on the part of the driver ofthe tanker lorry. This claim petition is also pending.

5. The Assistant Commissioner of Police took over furtherinvestigation of the case and submitted a final report before the JMFC,Paravur, Kollam, stating that the incident was an unavoidable accident;that the incident had occurred because the Appellant’s son’s Alto carwas trying to overtake a pick-up van and the driver of the van did notgive way, and as a result, the car hit the van and thereafter collided withthe tanker lorry. The final report dated 29.11.2019 is stated to be contraryto the earlier report dated 27.01.2016. It was stated in the final reportthat the incident was an unavoidable accident, not attributable tonegligence on the part of the Appellant’s son.

6. Being aggrieved by the said final report, Respondent No.1 hereinfiled a petition under Section 482 of the CrPC before the Kerala HighCourt praying that the investigation report dated 29.11.2019 be quashed.The said petition itself was filed two years from the date of the finalreport. The High Court, by the impugned judgment dated 31.03.2022,has allowed the petition filed by Respondent No.1 and quashed the finalreport dated 29.11.2019 wherein it has been observed that the incidentwas an unavoidable accident, not attributable to negligence on the partof Appellant’s son. Being aggrieved by the quashing of the said report,the present appeal has been preferred.

7. We have heard learned counsel for the Appellant and learnedcounsel for the impleading applicants and perused the material on record.Respondent No.1 is served and has not appeared.

It is noted that the quashing of the said report would have a bearingin the criminal proceeding but having regard to the fact that theAppellant’s son also died in the accident, as against him, the criminalproceeding would abate.

However, learned counsel for the Appellant submitted thatRespondent No.1 unnecessarily filed a petition under Section 482 CrPC

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Afor quashing the final report dated 29.11.2019 after a period of two years.In this regard, our attention was drawn to the fact that the earlier finalreport was filed by the Assistant Commissioner of Police, Kollam DistrictCrime Branch dated 27.01.2016 for the offences under Section 279 and304A of the IPC as against the Appellant’s son, although the FIR wasfiled against Ramar also, the driver of tanker lorry. In the chargesheet,Bthe investigating officer has stated that the chargesheet had abated asagainst the son of the Appellant herein. The Appellant herein had in factmade a representation for a thorough further investigation in the matterpursuant to which, further investigation was commenced in CC No. 215of 2016 in Crime No.1 of 2015 of Chathannoor Police Station vide orderCdated 19.12.2018 of the JFCM under Section 173(8) of the CrPC. Onfurther investigation taken up by the Assistant Commissioner of Police,a final report was submitted on 29.11.2019. It was two years thereafterthat the first Respondent herein filed Criminal MC No.4870 of 2021under Section 482 of the CrPC seeking quashing of the further investigation’s final report before the High Court without making theDAppellant or other affected party, a Respondent.8. We find that the High Court, in the impugned order in paragraphs8 to 13 and 18, has made observations which are in the nature of findingswhile considering the correctness or otherwise of the final report impugnedbefore the High Court. Further, the observations of the High Court toEthe effect that the car driven by the Appellant’s son, Nixon Abey Mathew,was being driven rashly; that the car had gone astray to the wrong side;that the possibility that the driver of the car had driven the car afterconsuming alcohol cannot be ruled out; that rashness and negligence onthe part of the driver of the car is patent and that this is a clear case inFwhich the principle of res ispa loquitor applies, are in the nature offindings which were wholly unnecessary to be made while consideringthe correctness or otherwise of the final report submitted on furtherinvestigation of the case.

It is on the basis of the aforesaid observations which are in theGnature of findings that the High Court has quashed the report madepursuant to further investigation by opining, “The incident is attributableto the rash and negligent driving of the Alto car”. The opinionsexpressed which are in the nature of findings while considering thecorrectness or otherwise of the final report submitted on a furtherinvestigation of the case and thereby quashing the same is, in our view,H

not a correct and proper approach adopted by the High Court. Hence,the impugned order of the High Court is liable to be set aside on thisshort ground alone.

9. Insofar as the claim petition filed by the Appellant herein isconcerned, alleged negligence on the part of the driver of the tankerlorry and pickup van in causing the accident has to be proved. That is amatter which has to be considered on the basis of preponderance of thepossibilities and not on the basis of proof beyond reasonable doubt. It isleft to the parties in the claim petitions filed by the Appellant herein orother claimants to let in their respective evidence and the burden is onthem to prove negligence on the part of the driver of the Alto car, thetanker lorry or pickup van, as the case may be, in causing the accident.In such an event, the claim petition would be considered on its ownmerits. It is needless to observe that if the proof of negligence on thepart of the drivers of the three vehicles is not established then, in thatevent, the claim petition will be disposed of accordingly.

In this context, we could refer to judgments of this Court in thecase of N.K.V. Bros. (P) Ltd. vs. M. Karumai Anmal reported in AIR1980 SC 1354, wherein the plea that the criminal case had ended inacquittal and that, therefore, the civil suit must follow suit, was rejected.It was observed that culpable rashness under Section 304-A of IPC ismore drastic than negligence under the law of torts to create liability.Similarly, in (2009) 13 SCC 530, in the case of Bimla Devi vs. HimachalRoad Transport Corporation (“Bimla Devi”), it was observed that ina claim petition filed under Section 166 of the Motor Vehicles Act, 1988,the Tribunal has to determine the amount of fair compensation to begranted in the event an accident has taken place by reason of negligenceof a driver of a motor vehicle. A holistic view of the evidence has to betaken into consideration by the Tribunal and strict proof of an accidentcaused by a particular vehicle in a particular manner need not beestablished by the claimants. The claimants have to establish their caseon the touchstone of preponderance of probabilities. The standard ofproof beyond reasonable doubt cannot be applied while considering thepetition seeking compensation on account of death or injury in a roadtraffic accident. To the same effect is the observation made by thisCourt in Dulcina Fernandes vs. Joaquim Xavier Cruz, (2013) 10SCC 646 which has referred to the aforesaid judgment in Bimla Devi.

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A10. In that view of the matter, it is for the Appellant herein toestablish negligence on the part of the driver of the tanker lorry in thepetition filed by him seeking compensation on account of death of hisson in the said accident. Thus, the opinion in the final report would nothave a bearing on the claim petition for the aforesaid reasons. This isbecause the Appellant herein is seeking compensation for the death ofBhis son in the accident which occurred on account of the negligence onthe part of the driver of the tanker lorry, causing the accident on the saiddate. It is further observed that in the claim petitions filed by thedependents, in respect of the other passengers in the car who died in theaccident, they have to similarly establish the negligence in accordanceCwith law.

11. In view of the above discussion, the impugned order of theHigh Court dated 31.03.2022 is set aside and the appeal is allowed.

Parties to bear their respective costs.

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Nidhi Jain

(Assisted by : Tamana, LCRA)

Appeal allowed.

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