Kerala High Court

Jamuna Devi. J vs The Managing Director on 7 April, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

           THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

   WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943

                          MACA.No.2497 OF 2013

 AGAINST THE AWARD IN OPMV 26/2009 DATED 26-11-2012 OF ADDITIONAL
            MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM


APPELLANTS/PETITIONERS:

      1      JAMUNA DEVI. J
             AGED 47 YEARS, W/O. LATE RAMESAN,
             RAJANI NIVAS, 7/131, EROOR NORTH,
             TRIPUNITHURA, NOW RESIDING AT ARA 108,
             RAJESH BHAVAN, MUNDAKKAL EAST,
             KOLLAM - 691 001.

      2      RAJANI,
             AGED 27 YEARS, D/O. LATE RAMESAN,
             RAJANI NIVAS, 7/131, EROOR NORTH,
             TRIPUNITHURA, NOW RESIDING AT ARA 108,
             RAJESH BHAVAN, MUNDAKKAL EAST,
              KOLLAM - 691 001.

      3      RAJEESH R.
             AGED 25 YEARS, S/O. LATE RAMESAN,
             RAJANI NIVAS, 7/131, EROOR NORTH,
             TRIPUNITHURA, NOW RESIDING AT ARA 108,
             RAJESH BHAVAN, MUNDAKKAL EAST,
             KOLLAM - 691 001.

             BY ADVS.
             SRI.R.SUDHISH
             SMT.M.MANJU
             SRI.K.R.RANJITH

RESPONDENTS/RESPONDENTS:

1 THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM.

2 SUDHARSHANAN, S/O. BHARATHAN, CHERUKARA HOUSE, KILIKOLLOOR P.O., KOLLAM.

3 NATIONAL INSURANCE COMPANY LIMITED, DIVISION NO. 10, FLAT NO. 101-106, MACA.No.2497 OF 2013 & Conn.Cases

N-1, B M C HOUSE, CONNOUGHT PLACE, NEW DELHI -1.

R1 BY SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN.

R1, R3 BY ADV. SRI.LAL K.JOSEPH R1 BY ADV. SRI.V.S.SHIRAZ BAVA R1 BY ADV. SRI.JOHN MATHEW, SC, KERALA STATE ROAD TRANSPORT CORPORATION R1 BY ADV. SRI.A.A.ZIYAD RAHMAN

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.04.2021, ALONG WITH MACA.1256/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA.No.2497 OF 2013 & Conn.Cases

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943

MACA.No.1256 OF 2013

AGAINST THE AWARD IN OPMV 26/2009 DATED 26-11-2012 OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM

APPELLANT/1ST RESPONDENT:

KERALA ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN, FORT P.O.

TRIVANDRUM - 23

BY ADVS.

SRI.P.K.BEHANAN,SC,KSRTC SRI.P.C.CHACKO(PARATHANAM) SC, KERALA STATE ROAD TRANSPORT CORPORATION - KSRTC

RESPONDENTS/PETITIONERS:

              1       JAMUNA DEVI J
                      AGED 43 YEARS
                      W/O LATE RAMESAN,
                      RAJANI NIVAS 7/131, EROOR NORTH
                      TRIPUNITHURA
                      PIN 682301

              2       RAJANI J
                      AGED 23 YEARS
                      D/O LATE RAMESAN
                      RAJANI NIVAS 7/131, EROOR NORTH
                      TRIPUNITHURA
                      PIN 682301

              3       RAJESH R
                      AGED 21 YEARS
                      S/O LATE RAMESAN
                      RAJANI NIVAS 7/131, EROOR NORTH
                      TRIPUNITHURA
                      PIN 682301

              4       NATIONAL INSURANCE COMPANY LTD
                      DIVISION NO 10, FLAT NO 101106,

MACA.No.2497 OF 2013 & Conn.Cases

N-1 BMC HOUSE, CONNOUGHT PALACE, NEW DELHI -1

R1-3 BY ADV. SRI. K.R. RANJITH R1-3 BY ADV. SRI. R.SUDHISH R1 BY ADV. SRI.M. MANJU R4 BY ADV. SRI.A.R.GEORGE SRI.LAL.K.JOSEPH, SC

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.04.2021, ALONG WITH MACA.2497/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA.No.2497 OF 2013 & Conn.Cases

COMMON JUDGMENT

[ MACA.2497/2013, MACA.1256/2013 ]

Dated this the 7th day of April 2021

These two appeals are connected and therefore, I am

disposing these two appeals by a common judgment.

2. MACA No.2497/2013 is filed by the petitioners in

O.P.(MV)No.26/2009 on the file of the Additional Motor

Accidents Claims Tribunal, Ernakulam. The first respondent in

the above claim petition had filed MACA No.1256/2013.

(Hereinafter the parties are mentioned in accordance to their

rank before the Tribunal)

3. Short facts are like this:- On 09.03.2008 at about

2.00 p.m. while the deceased was driving a car bearing

Reg.No. KL-7/BC 3860 from north to south through

Thiruvananthapuram - Ernakulam National Highway road and

when he reached at Kalavoor the offending bus bearing Reg

No. KL-15/6604 driven by the 2 nd respondent in a rash and

negligent manner hit on the car and thereby deceased

sustained serious injury. He was treated at Medical College MACA.No.2497 OF 2013 & Conn.Cases

Hospital, Alappuzha. He succumbed to the injuries. According

to the petitioners the accident occurred due to the negligence

of the 2nd respondent - bus driver. Therefore, the claim

petition is filed for compensation from the respondents jointly

and severally.

4. To substantiate the case Exts. A1 to A12 were

marked on the side of the petitioners. Ext. X1 is the certificate

issued from the Cochin Shipyard. Ext.B1 is the copy of the

final report submitted by the police. Three witnesses were

examined on the side of the petitioners as PW1, PW2 and

PW3. The Tribunal after going through the evidence and the

documents found that the accident occurred because of the

rash and negligent driving by the 2nd respondent. Thereafter,

the Tribunal fixed a compensation of Rs.15,48,392/-.

5. Aggrieved by the quantum of compensation the

petitioners filed MACA No.2497/2013. The first respondent

filed MACA No.1256/2013 challenging the finding that the

accident occurred because of the rash and negligent driving by

the 2nd respondent - driver of the KSRTC.

6. Heard the learned counsel for the petitioners and MACA.No.2497 OF 2013 & Conn.Cases

the learned counsel for the respondents.

7. The learned counsel for the 1 st respondent

submitted that the police registered a case in connection with

this accident and the police referred the matter. Ext.B1 is the

final report submitted by the police. Thereafter the Tribunal,

simply relied the evidence of PW3 and concluded that the

driver of the KSRTC bus is negligent. The counsel submitted

that the finding of the Tribunal is not sustainable. The counsel

for the petitioners supported the impugned award. The

counsel also submitted that the quantum of compensation

fixed by the Tribunal is too low.

8. Admittedly, a criminal case was registered in

connection with the above accident. As per Ext.B1 final report

the police found that the accident occurred not because of the

negligence on the part of the 2 nd respondent. The Tribunal

relied the oral evidence adduced by PW3 to conclude that the

accident occurred because of the negligence on the part of 2 nd

respondent. The finding of the Tribunal is extracted

hereunder:-

"9. Ext.A1 is the copy of FI statement and report which shows that crime was registered against the KSRTC driver. Ext.A2 is the scene mahazar locating MACA.No.2497 OF 2013 & Conn.Cases

place of occurrence. A8 and 9 are motor vehicle inspector reports of bus and car. Ext.B1 is the copy of final report showing that case was referred by the police finding that car hit against the KSRTC Bus. Reason for hit is no where mentioned in Ext.B1. The investigation report filed by investigating officer cannot be treated for evidence for negligence. On the contrary, evidence of PW3 the passenger of KSRTC Bus who witnessed the accident shows that the accident was due to the negligence of KSRTC driver. Therefore, considering the evidence of PW3, I find that the accident was due to negligence to the 2nd respondent bus driver."

9. I find no reason to interfere with that part of the

award passed by the Tribunal. The Tribunal relied the evidence

of PW3. There is no serious cross examination to the evidence

adduced by PW3. The counsel for the 1st respondent submitted

that he may be given a further opportunity to adduce further

evidence. The counsel submitted that the final report of the

police is in favour of the 2 nd respondent, the court ought to

have presume that the accident occurred because of the

negligence on the part of driver of the car. The counsel relied

on the judgment of this Court in Kolavan & Others v Salim &

Others [2018(1) KLJ 733] and in New Indian Insurance

Company Ltd. v. Pazhaniammal [2011(3)KLT 648] . It is true

that in these decisions, this Court declared that the final

report of the police is to be taken as prima facie evidence to

prove negligence. But that doesn't mean that the other party MACA.No.2497 OF 2013 & Conn.Cases

can't adduce further evidence to rebut the same. In this case

the petitioners adduced evidence. The counsel for the 1 st

respondent submitted that, he want to adduce further

evidence to rebut the evidence already adduced by the

petitioners.

In such circumstances, I think an opportunity can be

given to the 1st respondent to adduce further evidence. The

question regarding the enhancement of compensation is also

left open. The petitioners also can adduce evidence for that

purpose before the Tribunal. There can be a time limit also for

disposing the claim petition.

Therefore, these appeals are disposed of in the following

manner:-

(i) MACA Nos.1256/2013 and 2497/2013 are

allowed.

(ii) Award dated 26.11.2012 in O.P.(MV)

No.26/2009 on the file of the Motor

Accidents Claims Tribunal, Ernakulam is set

aside and the Tribunal is directed to restore

the claim petition.

MACA.No.2497 OF 2013 & Conn.Cases

(iii) The Tribunal will allow the petitioners and

respondents to adduce further oral and

documentary evidence, if any. I make it

clear that no de novo trial is necessary.

(iv) After giving opportunities to both sides, the

Tribunal will pass appropriate orders in

accordance with law, as expeditiously as

possible, at any rate within a period of four

months from the date of receipt of a copy of

this judgment.

(v) The parties shall appear before the Tribunal