Don Bosco P.J vs K. Sasidharan Pillai
2021 Latest Caselaw 13494 Ker

                 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

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

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

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

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."

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.

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

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