MATHEW ALEXANDERversusMOHAMMED SHAFI AND ANR.

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


                     MATHEW ALEXANDER                                     A
                                  v.
                 MOHAMMED SHAFI AND ANR.
                 (Criminal Appeal No. 1931 of 2023)
                           JULY 13, 2023                                  B
                 [B. V. NAGARATHNA AND
              PRASHANT KUMAR MISHRA, JJ.]
       Code of Criminal Procedure, 1973 : s. 482 – Quashing of
final report – Motor accident matter – Rash and negligent driving
                                                                          C
– Appellant’s son was driving a car which collided with the gas
tanker lorry – Death of appellant’s son and five others travelling in
the car – Claim petition by the respondent no. 1 and the legal
representative of the deceased passengers – Claim petition also filed
by the appellant against the driver and the insurer of the tanker
lorry, and against the owner – FIR against the appellant’s son u/s.       D
279 and 304 A, however, abatement of charges against him on his
death – Submission of the final report by police that the incident
was an unavoidable accident, not attributable to negligence on the
part of the appellant’s son – Two years later, petition u/s. 482 by the
respondent no. 1 for quashing of the final report – High Court
                                                                          E
quashed the final report – On appeal, held : Opinions expressed by
the High Court which are in the nature of findings while considering
the correctness of the final report and thereby quashing the same
was, 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.                                                         F
       Motor Vehicles Act, 1988: Motor accident – Claim for
compensation – Negligence – Burden of proof – Held : Motor
accident matter has to be considered on the basis of preponderance
of the possibilities and not on the basis of proof beyond reasonable
doubt – On facts, in a claim petition by the appellant alleging           G
negligence on part of the driver of the tanker lorry and the pick up
van in causing the accident resulting in the death of his son and
five others travelling with him, alleged negligence on the part of
the driver of the tanker lorry and pickup van in causing the accident
has to be proved – It was for the appellant to establish negligence
                                                                          H
                                1083
1084            SUPREME COURT REPORTS                        [2023] 10 S.C.R.


 A     on the part of the driver of the tanker lorry – Opinion in the final
       report that the incident was an unavoidable accident, not attributable
       to negligence on the part of the appellant’s son, would not have a
       bearing on the petition – In the claim petitions filed by the dependents
       of the other deceased passengers, they have to similarly establish
       the negligence in accordance with law.
 B
             Allowing the appeal, the Court
             HELD: 1.1 The High Court made observations which are
       in the nature of findings while considering the correctness or
       otherwise of the final report impugned before the High Court.
 C     Further, the observations of the High Court to the effect that the
       car driven by the appellant’s son, 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 after consuming
       alcohol cannot be ruled out; that rashness and negligence on the
       part of the driver of the car is patent and that this is a clear case
 D     in which the principle of res ispa loquitor applies, are in the nature
       of findings which were wholly unnecessary to be made while
       considering the correctness or otherwise of the final report
       submitted on further investigation of the case. It is on the basis
       of the said observations which are in the nature of findings that
 E     the High Court has quashed the report made pursuant to further
       investigation by opining that the incident is attributable to the
       rash and negligent driving of the Alto car. The opinions expressed
       which are in the nature of findings while considering the
       correctness or otherwise of the final report submitted on a further
       investigation of the case and thereby quashing the same is, not a
 F     correct 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 is
       concerned, alleged negligence on the part of the driver of the
 G     tanker lorry and pickup van in causing the accident has to be
       proved. That is a matter which has to be considered on the basis
       of preponderance of the possibilities and not on the basis of proof
       beyond reasonable doubt. It is left to the parties in the claim
       petitions filed by the appellant or other claimants to let in their
 H     respective evidence and the burden is on them to prove
 MATHEW ALEXANDER v. MOHAMMED SHAFI AND ANR.                           1085


negligence on the part of the driver of the Alto car, the tanker       A
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
own merits. If the proof of negligence on the part of the drivers
of the three vehicles is not established then, in that event, the
claim petition would be disposed of accordingly. [Para 9]
                                                                       B
[1089-B-D]
      1.3. It is for the appellant to establish negligence on the
part of the driver of the tanker lorry in the petition filed by him
seeking compensation on account of death of his son in the said
accident. Thus, the opinion in the final report would not have a
bearing on the claim petition for the said reasons. This is            C
because the appellant is seeking compensation for the death of
his son in the accident which occurred on account of the
negligence on the part of the driver of the tanker lorry, causing
the accident on the said date. In the claim petitions filed by the
dependents, in respect of the other passengers in the car who          D
died in the accident, they have to similarly establish the
negligence in accordance with law. The impugned order of the
High Court is set aside. [Paras 10 and 11][1090-A-C]
      N.K.V. Bros. (P) Ltd. vs. M. Karumai Anmal AIR 1980
      SC 1354 : [1980] 3 SCR 101; Bimla Devi vs. Himachal              E
      Road Transport Corporation (2009) 13 SCC 530 :
      [2009] 6 SCR 362; Dulcina Fernandes vs. Joaquim
      Xavier Cruz (2013) 10 SCC 646 : [2013] 10 SCR 480
      – referred to.
                      Case Law Reference                               F
[1980] 3 SCR 101                   referred to           Para 9
[2009] 6 SCR 362                   referred to           Para 9
[2013] 10 SCR 480                  referred to           Para 9
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.             G
1931 of 2023.
      From the Judgment and Order dated 31.03.2022 of the High Court
of Kerala at Ernakulam in CRLMC No. 4870 of 2021.
       G. Prakash, Mrs. Beena Prakash, Ms. Priyanka Prakash, Advs.
for the Appellant.                                                     H
1086             SUPREME COURT REPORTS                          [2023] 10 S.C.R.


 A           Nishe Rajen Shonker, Mrs. Anu K Joy, Alim Anvar, A. Karthik,
       Ms. Sreepriya K., Ms. Smrithi Suresh, Arsh Khan, Ms. Neeta Sanjay
       Savale, 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 opinion
       formed as per final report in pursuant to the further investigation in Crime
       No.1/2015 registered at Chathannoor Police Station, by the High Court
 C     in its order dated 31.03.2022.
              3. Briefly stated the facts are that an FIR bearing No.01/2015
       was registered by the complainant against the Appellant’s son before
       the Chathannoor Police Station invoking Sections 279 and 304A of the
       IPC. The FIR stated that on 01.01.2015, at around 2.15 am, Appellant’s
 D     son, Nixon Abey Matthew, aged 20 years, was driving a Maruti Alto car
       bearing No. KL 2 AC 1370 through the Kollam-Thiruvananthapuram
       National Highway from East to West direction on the left side of the
       road, along with his friends. When the car reached Seemati, Chathannoor,
       a gas tanker lorry bearing registration No. KL 39 C 4577, driven by
       Ramar in an utmost rash and negligent manner, hit the Maruti Alto car
 E     and in the said accident, Appellant’s son and five others travelling in the
       car died. Claim petitions have been filed by Respondent No.1 herein and
       other legal representatives of the deceased passengers in the car before
       the Motor Accident Claims Tribunal, Kollam seeking compensation for
       the death of their kin on whom they were dependent. Respondent No.1
 F     herein also has filed a claim petition in which the deceased son of the
       Appellant was named as Respondent No.4 and the driver of the tanker
       lorry, Ramar, is named as Respondent No.2. The said claim petition is
       also pending.
              4. A final report was filed by the Assistant Commissioner of Police
       in the case arising out of FIR No.1/2015. It was also mentioned in the
 G
       chargesheet that the charges against the Appellant’s son had abated as
       he died in the accident. However, on the basis of the complaint made by
       the Appellant herein regarding irregularities in the conduct of the
       investigation, the District Police Chief, Kollam, directed the Assistant
       Commissioner of Police, Chathannoor to undertake a thorough
 H
  MATHEW ALEXANDER v. MOHAMMED SHAFI AND ANR.                                    1087
              [B. V. NAGARATHNA J.]

investigation in the matter and further investigation commenced in the           A
matter 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 Appellant
herein is against the owner and driver of the tanker lorry which is said to
have collided with the Alto car driven by his son, as also against the
                                                                                 B
insurer of the tanker lorry alleging negligence on the part of the driver of
the tanker lorry. This claim petition is also pending.
       5. The Assistant Commissioner of Police took over further
investigation 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 car            C
was trying to overtake a pick-up van and the driver of the van did not
give way, and as a result, the car hit the van and thereafter collided with
the tanker lorry. The final report dated 29.11.2019 is stated to be contrary
to the earlier report dated 27.01.2016. It was stated in the final report
that the incident was an unavoidable accident, not attributable to               D
negligence on the part of the Appellant’s son.
       6. Being aggrieved by the said final report, Respondent No.1 herein
filed a petition under Section 482 of the CrPC before the Kerala High
Court praying that the investigation report dated 29.11.2019 be quashed.
The said petition itself was filed two years from the date of the final          E
report. The High Court, by the impugned judgment dated 31.03.2022,
has allowed the petition filed by Respondent No.1 and quashed the final
report dated 29.11.2019 wherein it has been observed that the incident
was an unavoidable accident, not attributable to negligence on the part
of Appellant’s son. Being aggrieved by the quashing of the said report,
the present appeal has been preferred.                                           F

      7. We have heard learned counsel for the Appellant and learned
counsel 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 bearing      G
in the criminal proceeding but having regard to the fact that the
Appellant’s son also died in the accident, as against him, the criminal
proceeding would abate.
     However, learned counsel for the Appellant submitted that
Respondent No.1 unnecessarily filed a petition under Section 482 CrPC
                                                                                 H
1088             SUPREME COURT REPORTS                          [2023] 10 S.C.R.


 A     for 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 final
       report was filed by the Assistant Commissioner of Police, Kollam District
       Crime Branch dated 27.01.2016 for the offences under Section 279 and
       304A of the IPC as against the Appellant’s son, although the FIR was
       filed against Ramar also, the driver of tanker lorry. In the chargesheet,
 B
       the investigating officer has stated that the chargesheet had abated as
       against the son of the Appellant herein. The Appellant herein had in fact
       made a representation for a thorough further investigation in the matter
       pursuant to which, further investigation was commenced in CC No. 215
       of 2016 in Crime No.1 of 2015 of Chathannoor Police Station vide order
 C     dated 19.12.2018 of the JFCM under Section 173(8) of the CrPC. On
       further investigation taken up by the Assistant Commissioner of Police,
       a final report was submitted on 29.11.2019. It was two years thereafter
       that the first Respondent herein filed Criminal MC No.4870 of 2021
       under Section 482 of the CrPC seeking quashing of the further
 D     investigation’s final report before the High Court without making the
       Appellant or other affected party, a Respondent.
              8. We find that the High Court, in the impugned order in paragraphs
       8 to 13 and 18, has made observations which are in the nature of findings
       while considering the correctness or otherwise of the final report impugned
       before the High Court. Further, the observations of the High Court to
 E
       the 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 after
       consuming alcohol cannot be ruled out; that rashness and negligence on
       the part of the driver of the car is patent and that this is a clear case in
 F     which the principle of res ispa loquitor applies, are in the nature of
       findings which were wholly unnecessary to be made while considering
       the correctness or otherwise of the final report submitted on further
       investigation of the case.
              It is on the basis of the aforesaid observations which are in the
 G     nature of findings that the High Court has quashed the report made
       pursuant to further investigation by opining, “The incident is attributable
       to the rash and negligent driving of the Alto car”. The opinions
       expressed which are in the nature of findings while considering the
       correctness or otherwise of the final report submitted on a further
       investigation of the case and thereby quashing the same is, in our view,
 H
  MATHEW ALEXANDER v. MOHAMMED SHAFI AND ANR.                                   1089
              [B. V. NAGARATHNA J.]

not a correct and proper approach adopted by the High Court. Hence,             A
the impugned order of the High Court is liable to be set aside on this
short ground alone.
        9. Insofar as the claim petition filed by the Appellant herein is
concerned, alleged negligence on the part of the driver of the tanker
lorry and pickup van in causing the accident has to be proved. That is a        B
matter which has to be considered on the basis of preponderance of the
possibilities and not on the basis of proof beyond reasonable doubt. It is
left to the parties in the claim petitions filed by the Appellant herein or
other claimants to let in their respective evidence and the burden is on
them to prove negligence on the part of the driver of the Alto car, the
tanker lorry or pickup van, as the case may be, in causing the accident.        C
In such an event, the claim petition would be considered on its own
merits. It is needless to observe that if the proof of negligence on the
part of the drivers of the three vehicles is not established then, in that
event, the claim petition will be disposed of accordingly.
       In this context, we could refer to judgments of this Court in the        D
case of N.K.V. Bros. (P) Ltd. vs. M. Karumai Anmal reported in AIR
1980 SC 1354, wherein the plea that the criminal case had ended in
acquittal and that, therefore, the civil suit must follow suit, was rejected.
It was observed that culpable rashness under Section 304-A of IPC is
more drastic than negligence under the law of torts to create liability.        E
Similarly, in (2009) 13 SCC 530, in the case of Bimla Devi vs. Himachal
Road Transport Corporation (“Bimla Devi”), it was observed that in
a claim petition filed under Section 166 of the Motor Vehicles Act, 1988,
the Tribunal has to determine the amount of fair compensation to be
granted in the event an accident has taken place by reason of negligence
of a driver of a motor vehicle. A holistic view of the evidence has to be       F
taken into consideration by the Tribunal and strict proof of an accident
caused by a particular vehicle in a particular manner need not be
established by the claimants. The claimants have to establish their case
on the touchstone of preponderance of probabilities. The standard of
proof beyond reasonable doubt cannot be applied while considering the
                                                                                G
petition seeking compensation on account of death or injury in a road
traffic accident. To the same effect is the observation made by this
Court in Dulcina Fernandes vs. Joaquim Xavier Cruz, (2013) 10
SCC 646 which has referred to the aforesaid judgment in Bimla Devi.

                                                                                H
1090             SUPREME COURT REPORTS                         [2023] 10 S.C.R.


 A            10. In that view of the matter, it is for the Appellant herein to
       establish negligence on the part of the driver of the tanker lorry in the
       petition filed by him seeking compensation on account of death of his
       son in the said accident. Thus, the opinion in the final report would not
       have a bearing on the claim petition for the aforesaid reasons. This is
       because the Appellant herein is seeking compensation for the death of
 B
       his son in the accident which occurred on account of the negligence on
       the part of the driver of the tanker lorry, causing the accident on the said
       date. It is further observed that in the claim petitions filed by the
       dependents, in respect of the other passengers in the car who died in the
       accident, they have to similarly establish the negligence in accordance
 C     with law.
             11. In view of the above discussion, the impugned order of the
       High Court dated 31.03.2022 is set aside and the appeal is allowed.
              Parties to bear their respective costs.

 D
       Nidhi Jain                                                    Appeal allowed.
       (Assisted by : Tamana, LCRA)




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