IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 10TH DAY OF AUGUST 2022/19TH SRAVANA, 1944
MACA NO. 1529 OF 2012
AGAINST THE AWARD DATED 06.01.2011 IN O.P(MV) 498/2007 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPPALAM
APPELLANT/5TH RESPONDENT IN O.P.(MV):
M/S.ICICI GENERAL INSURANCE CO.LTD.,
6/255/C, 2ND FLOOR, CITY PLAZA,
YMCA CROSS ROAD, KOZHIKODE.
BY ADVS.
SRI.K.B.RAMANAND
SRI.R.AJITH KUMAR
RESPONDENTS/CLAIMANTS AND RESPONDENTS 1 TO 4 AND 6 IN
O.P.(MV):
1 SHANTIMOL, W/O.LATE ANTHRAYOSE, AGED 26 YEARS,
KAYYALAYIL HOUSE, IRUMBAMUTTY, PALAKKAYAM (PO),
MANNARKAD TALUK - 678 591.
2 DONA, D/O.LATE ANTHRAYOSE, AGED 3 YEARS (MINOR),
KAYYALAYIL HOUSE, IRUMBAMUTTY, PALAKKAYAM (PO),
MANNARKAD TALUK, REPRESENTED BY HER MOTHER,
1ST RESPONDENT HEREIN - 678 591.
3 N.GOVINDANKUTTY, S/O.KARUNAKARAN NAIR,
AGED 46 YEARS, ANANDAMANDIRAM,
PADINCHARETHARA POOZHITHRA, THIRUMANGALAM,
WAYANAD.
4 THE MANAGING DIRETOR, KSRTC,
THIRUVANANTHAPURAM-695 001.
5 MUHAMMED NAHIM, S/O.SIDDIQUE, AGED 32 YEARS,
SIDHOOR HOUSE, NEAR INDIRA AUTO FUELS,
THARA (PO), KANNUR - 670 001.
M.A.C.A No.1529 of 2012
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6 SUSMITH, S/O.SUBRAMANIYAN, KOROTH HOUSE,
NANMANDA (PO), KOZHIKODE - 673 001.
7 SARAMMA, W/O.PHILIPOSE, AGED 55 YEARS,
MAKAPALLIL HOUSE, THADUKKASSERY (PO),
KONGAD, PALAKKAD TALUK - 678 641.
BY ADVS.
SRI.P.K.MOHANAN(PALAKKAD)
SRI.BABU JOSEPH KURUVATHAZHA, SC, KSRTC
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY
HEARD ON 10.08.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
M.A.C.A No.1529 of 2012
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JUDGMENT
This is an appeal at the instance of the 5 th respondent, filed under Section 173 of the Motor Vehicles Act, challenging contributory negligence found against the 3rd respondent, the driver of the Omni van bearing Registration No.KL-11L-4399, as per award dated 06.01.2011 in O.P.(M.V) No.498/2007 on the file of the Motor Accidents Claims Tribunal, Ottapalam.
2. Respondents herein are the claimants and other respondents before the Tribunal.
3. Heard the learned Standing Counsel for the appellant, learned Standing Counsel for KSRTC as well as learned counsel for respondents 1 and 2 (claimants before the Tribunal).
4. Brief facts of the case:
The claimants before the Tribunal raised contention that on 11.01.2007 at about 3:00 p.m., while one Anthrayose was travelling in an M.A.C.A No.1529 of 2012 4 Omni van bearing Reg.No.KL-11L-4399 driven by the 3rd respondent, a KSRTC bus bearing Reg. No.KL-15-3699 driven by the 1st respondent in a rash and negligent manner, dashed against the Omni van and, consequently, Anthrayose was thrown out of the Omni van and he sustained fatal injuries. He was immediately taken to Medical College Hospital, Calicut but he succumbed to the injuries. According to the appellants, the accident occurred due to the rash and negligent driving of respondents 3 and
5. In this matter, the claimants, who are the wife and minor child of the deceased, approached the Tribunal and claimed the compensation to the tune of Rs.8 lakh. The respondents before the Tribunal are Managing Director, KSRTC as well as the driver of the KSRTC bus and the owner and driver of the Omni van and the insurer.
5. The 3rd and 4th respondents were set ex- parte by the Tribunal.
M.A.C.A No.1529 of 2012 5
6. R1 and R2 filed joint written statement denying negligence attributed against the 3 rd respondent as well as quantum of compensation claimed under various heads.
7. The appellant herein/5th respondent also filed written statement denying negligence on the part of the driver of the Omni van, while disputing quantum of compensation and admitting valid policy in relation to Omni van bearing registration No.KL-11L-4399.
8. The Tribunal adjudicated the matter after examining PW1 and marking Exts.A1 and A6 on the part of the appellants. RW1 examined on the side of KSRTC.
9. The Tribunal appraised the evidence and finally granted Rs.4,26,000/- as compensation along with 7% interest per annum.
10. In paragraph 8 of the award, the Tribunal discussed the question of negligence mainly relying on Ext.A1, copy of FIR in Crime M.A.C.A No.1529 of 2012 6 No.17/2007 registered by Thamarasseri police on the allegation that the 1st respondent driven the vehicle at the time of accident in a rash and negligent manner.
11. In this matter, either the appellants or the contesting respondents not produced police charge before the Tribunal. The Tribunal referred non-production of police charge in paragraph No.8 of the award. It is submitted by the learned counsel for the appellant/5 th respondent, that after passing the award, the claimants filed I.A.Nos.1577/2011 and 1578/2011 to review the award along with copy of charge. However, the Tribunal dismissed the above applications.
12. It is argued further that, as per the police charge produced along with the Review Petition, which is not part of the evidence, police attributed negligence against the 1 st respondent and, therefore, the Tribunal went M.A.C.A No.1529 of 2012 7 wrong in finding 40% on the part of driver of the Omni van and the same is liable to be set aside.
13. The learned Standing Counsel for the KSRTC zealously opposed this argument on the finding that the police charge relied on the appellant herein not produced before the Tribunal during trial and it was produced at a belated stage along with a petition to condone the delay in Review Petition. Therefore, the Tribunal rightly dismissed the Review Petition. He also argued that the evidence of RW1 also was considered by the Tribunal while finding contributory negligence.
14. It is submitted by the learned counsel for respondents 1 and 2 herein, the claimants, that KSRTC already deposited 60% of the award amount as ordered by the Tribunal and the remaining amount ordered to be paid by the appellant is yet to be deposited and, therefore, M.A.C.A No.1529 of 2012 8 the claimants are trailing to survive.
15. In order to allay the controversy, I am inclined to mark, copy of police charge produced along with the Review Petition, forming part of the records of the Tribunal as Ext.A7. Ext.A7 would go to show that as rightly argued by the learned counsel for the appellant, police laid charge against the 1st respondent.
16. In this matter, PW1 was examined. However, PW1 admittedly not an eye witness to the occurrence and, therefore, the evidence given by PW1 to substantiate the negligence is nothing but 'hearsay' and no credence can be given to the evidence of PW1, to find negligence as 'hearsay evidence' is 'no evidence'.
17. Apart from Ext.A7 charge, RW1, the driver of KSRTC bus, against whom Ext.A7 charge was laid, appeared before the Tribunal and given evidence. RW1 during chief-examination, categorically denied the negligence on his part M.A.C.A No.1529 of 2012 9 and he had given evidence stating that the accident was the outcome of negligence on the part of the Omni van of the driver. It is pertinent to note that during cross-examination, the claimants alone cross-examined RW1. No attempt was made by the 5th respondent /appellant herein to cross-examine RW1. Although, during cross-examination, the learned counsel for the claimants put a suggestion to RW1 that the accident was the contribution of both drivers, the said suggestion was denied by RW1.
18. Going by the evidence of RW1, it could not be held that the police charge shall be given predominance eschewing the substantive evidence of RW1. Though as per the police charge, negligence was attributed against the 1 st respondent, the evidence of RW1, attributed negligence on the part of the Omni van driver. This is the context in which the Tribunal found contributory negligence in the proportion 60:40 M.A.C.A No.1529 of 2012 10 on the part of the 1st respondent/KSRTC driver and the 3rd respondent/Omni van driver, respectively. Since the available evidence does not support absolute negligence on the part of the 1st respondent alone, the finding of the Tribunal is not liable to be interferred. Therefore, in this case, I am not inclined to revisit the finding of the Tribunal in any manner.
Accordingly, this appeal stands dismissed.
Sd/-
A.BADHARUDEEN, JUDGE.
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