IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943
MACA NO. 1702 OF 2012
AGAINST THE ORDER/JUDGMENT IN OPMV NO.1913/2003 DATED 25/07/2011 OF MOTOR
ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM,
APPELLANT/PETITIONER:
DON BOSCO P.J.,
S/O.JOSEPH P.A. PUNNAKKAL HOUSE, KAZHUTHUMUTTU,
THOPPUMPADY P.O, THOPPUMPADY VILLAGE, KOCHI 5.
BY ADVS.
SRI.P.V.BABY
SRI.A.N.SANTHOSH
RESPONDENT/RESPONDENTS NO.1 TO 3:
1 K.SASIDHARAN PILLAI,
S/O.KRISHNA PILLAI, PULARIBHAVAN BOUSE, KUTTIPURAM,
PULIMATHU VILLAG, CHIRAYINKEEZHU TALUK,
TRIVANDURM 695 612.
2 THE MANAGING DIRECTOR,
KSRTC, TRANSPORT BHAVAN, FORT, TRIVANDRUM 695 002.
3 THE NATIONAL INSURANCE COMPANY LTD.,
DIVISIONAL OFFICE, P.B. NO 434,
ST. JOSEPH'S PRESS BUILDING,
VAZHUTHACAD, TRIVANDRUM 695 014.
R2 BY ADV.P.C.CHACKO, STANDING COUNSEL FOR KSRTC
R3 BY ADV SRI.A.R.GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON
01.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA No.1702 of 2012 2
JUDGMENT
This is an appeal submitted by the petitioner in O.P(MV).No.1913 of 2003. The claim petition was filed by him seeking compensation for the injuries sustained to him in a motor accident which occurred on 03.07.2001. The accident occurred when the motor cycle ridden by the appellant was collided with a bus, driven by 1st respondent, owned by the 2nd respondent (KSRTC) and was insured with the 3 rd respondent. The insurer of the motor vehicle in which the appellant was traveling was also made as a party to the claim petition as 4th respondent. As the 3rd and 4th respondents in the claim petition were the different branches of the very same company, the appellant has not made the 4th respondent as a party in this appeal.
2. The said claim petition was filed seeking a compensation of Rs.3,00,000/-, by contending that the accident occurred due to the negligence of the driver MACA No.1702 of 2012 3 of the KSRTC bus. The 2nd respondent and the 3rd respondents who are the owner and the insurer of the bus respectively, contested the matter by filing separate written statements. The 2nd and 3rd respondents disputed the contentions raised by the appellant by stating that the accident occurred due to the negligence of the appellant himself. Quantum of compensation was also disputed by them.
3. The evidence in this case consists of oral evidence of PW1 and PW2 and documentary evidence of Ext.A1 to A17 from the side of the appellant. No evidence was adduced from the side of the respondents. After the trial, the Tribunal came to a finding that the appellant failed to establish negligence on the part of the respondents and, therefore, the claim petition was dismissed. Challenging the said award, this appeal is filed.
4. Heard Sri.A.N.Santhosh, learned counsel for the appellant, Sri.P.C.Chacko, learned Standing Counsel for MACA No.1702 of 2012 4 the KSRTC and Sri.A.R.George, learned counsel for the 3rd respondent.
5. The learned counsel for the appellant argues that, the order of dismissal of claim petition is unsustainable. In respect of the incident, the police had conducted an investigation and filed Ext.A2 final report, referring the incident as a mere motor accident, without holding any persons responsible. To establish negligence on the part of the 1 st respondent, the appellant examined PW1 and PW2. PW1 is the appellant himself and PW2 is an eye witness. The PW1 has cleared stated about the accident and it is corroborated by the evidence of PW2 as well. The PW2, was an occurrence witness, whose statement was recorded by the police. He would state that it was he along with the driver of the KSRTC bus, who had taken the appellant to the hospital immediately after the accident. He categorically mentioned the manner in which the accident occurred and also asserted that the accident occurred due to the negligence of the driver MACA No.1702 of 2012 5 of the KSRTC bus. Even though he was subjected to cross examination at the instance of the 3 rd respondent, the credibility of the said witness could not be shattered. The evidence of PW2 clearly supports the evidence of PW1 in all respects. Even though the Tribunal referred about the oral evidence, it is not seen relied upon and not even dealt with in detail, in the award. On the other hand, the Tribunal proceeded to determine the question of negligence, by relying upon contents of Ext.A3 scene mahazar.
6. This Court is of the view that, the evidence of PW1 and PW2 are very crucial for adjudicating the question of negligence. Under no circumstance, the Tribunal could have passed an award of this nature ignoring the said evidence and basing its finding solely on the contents of Ext.A3 scene mahazar, which is normally prepared by a police officer, on the basis of information furnished by some one else. A Division Bench of this Court in the judgment reported in 2018 (1) KLT 489 (Kolavan and others Vs Salim and MACA No.1702 of 2012 6 others ) it was held that, it is not safe to rely upon the scene mahazer, for adjudicating the question of negligence. The said judgment was rendered by this court, by relying upon the principles laid down by the Honourable Supreme Court in the judgment in 2013 (3) KLT 261 ( Jiju Kuruvila and others Vs Kunjamma and others), wherein, it was observed as follows;
"The mere position of the vehicles after accident, as shown in a scene mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction, etc. depends on a number of factors like the speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident was caused, but in the absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In the absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual."MACA No.1702 of 2012 7
From the above it is evident that, the scene mahazer cannot be relied upon, even when there is no direct evidence available. In this case, two witnesses have been examined and there is direct evidence available. Despite the same, the Tribunal adjudicated the question, on the basis of the scene mahazer. This court is of the view that, the finding of the Tribunal is therefore unsustainable.
7. In this regard, it is also noteworthy that, even going by the statements contained in Ext.A3, the motor cycle ridden by the appellant was keeping its proper side.
This is discernible from the observations made in the award itself. As per the scene mahazar, the motor cycle was going from North to South, whereas the KSRTC bus was moving from South to North. Total width of the road is 6.35 Mtrs and the spot of accident is 3.05 Mtrs west from eastern tarr end. Therefore, it can be seen that the spot of accident as revealed from Ext.A3 is slightly on the eastern side of the road, which is the proper side of the motor cycle ridden by the appellant. Thus going by the scene mahazer also, the finding of the Tribunal is highly improbable.
MACA No.1702 of 2012 8
8. The learned counsel for the Insurance Company contends that, while considering the question of negligence, the relative size of the bus as against the size of two wheeler, is also to be considered along with the contents of the mahazer. The learned Standing Counsel for the 2nd respondent supports the Insurance Company. However, this court is of the view that, when direct evidence relating to the incident is available in the form reliable oral evidence of eye witnesses, reliance can be placed upon the same. Further, as against the evidence of Pws 1 and 2, no contra evidence is adduced by the respondents
9. In the above circumstances, considering the materials available on record, this Court has no hesitation to conclude that the accident occurred because of the negligence of the driver of the KSRTC bus. Hence, the order of dismissal of claim petition passed by the Tribunal is to be set aside, by holding that the accident occurred due to the sole negligence of the 1st respondent. All the respondents shall be jointly and severally liable to pay the amount of compensation. However, as the vehicle is MACA No.1702 of 2012 9 covered with a valid insurance policy issued by the 3rd respondent, the amount of compensation is to be deposited by them.
10. Since, this is a case of dismissal, the quantification of compensation was not done by the Tribunal. It is a matter to be decided on the basis of the evidence and this Court feels it appropriate to remand the matter back to the Tribunal for quantifying the compensation receivable by the appellant.
In the above circumstances, the award passed by the Motor Accidents Claims Tribunal, Ernakulam in OP(MV) 1913/2003 dated 25.07.2011 is set aside and the matter is remitted back to the Tribunal for determining the quantum of compensation. All parties are free to adduce fresh evidence for adjudicating the issues relating to the quantum of compensation. Parties shall appear before the Tribunal on 21.07.2021.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE DG