Mercy Xavier vs The Managing Director Ksrtc
2021 Latest Caselaw 22925 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA,
                              1943
                  MACA NO. 975 OF 2012
 AGAINST THE AWARD IN OP(MV) 441/2004 OF MOTOR ACCIDENTS
               CLAIMS TRIBUNAL, ERNAKULAM
APPELLANT/PETITIONER :

    1    MERCY XAVIER,
         AGED 59 YEARS,
         WIFE OF LATE M.J.XAVIER.
    2    SAM XAVIER,
         AGED 37 YEARS,
         SON OF LATE M.J.XAVIER.
    3    SIM XAVIER,
         AGED 37 YEARS,
         SON OF LATE M.J.XAIVER.


         ALL APPELLANTS ARE RESIDING AT MANIYAMPOZHI
         HOUSE, ANDHAKARANAZHI P.O., PATTANAKKAD
         VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.
         BY ADVS.
         SRI.ANIL S.RAJ
         SMT.ANILA PETER
         SMT.K.N.RAJANI
         SRI.J.VIVEK GEORGE



RESPONDENTS/RESPONDENTS   :

    1    THE MANAGING DIRECTOR,
         KSRTC, FORT, TRIVANDRUM-695023.
    2    M.V.RAMESAN, S/O.VISWANATHAN,
         MARATTIL HOUSE, KADEBHAGOM,
         PALLURUTHY P.O., COCHIN-682006.
 M.A.C.A.No.975 of 2012          ..2..




            BY ADVS.
            SRI.P.K.BEHANAN, SC, KSRTC
            SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT
            CORPN.
            SRI.ALEX ANTONY SEBASTIAN P.A., STANDING COUNSEL



             THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN
FINALLY HEARD ON 23.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 M.A.C.A.No.975 of 2012                  ..3..




                         M.A.C.A.No.975 of 2012
           -------------------------------------------------------


                             JUDGMENT

The legal heirs of M.J.Xavier viz., wife and children

have filed O.P.(MV)No.441 of 2004 before the Motor Accidents

Claims Tribunal, Ernakulam and claimed compensation to the

tune of Rs.7,88,300/- under Section 166 of the Motor Vehicles

Act.

2. According to the appellants, the accident was

the outcome of negligence on the part of the second

respondent, the driver of KSRTC bus bearing registration No.KL-

15/3948. The specific contention raised by the appellants

before the Tribunal is that, when the above said Xavier

attempted to get into the bus which was stopped near

Shenoy's Junction, the second respondent rashly and

negligently moved the bus and accordingly, the deceased fell M.A.C.A.No.975 of 2012 ..4..

down and sustained injuries. Later, he succumbed to the

injuries.

3. Heard the learned counsel on both sides.

4. Respondents 1 and 2 filed written statement

and disputed the negligence. The negligence alleged against

the second respondent was emphatically denied raising the

specific contention that the deceased tried to get into the foot

board of the running KSRTC bus and his body hit on a private

service bus bearing registration No.KL-7 AG 1453 and

accordingly, he sustained injuries.

5. The Tribunal went on trial. PW1 examined and

Exts.A1 to A6 marked on the side of the petitioners/appellants.

RW1 and RW2 examined on the side of the respondents.

Finally, the Tribunal dismissed the application holding that the

negligence attributed against the second respondent was not

proved.

6. While assailing the award, the learned counsel

for the appellants submitted that atleast contributory M.A.C.A.No.975 of 2012 ..5..

negligence ought to have been fixed by the Tribunal, though he

failed to point out substantive evidence to prove the

negligence alleged against the second respondent.

7. The learned counsel for the respondents would

submit that in the FIR registered in this occurrence, there is no

whisper as to how the accident occurred and involvement of

the KSRTC bus. The police charge, in fact, is against the

allegation in the petition and therefore, the same was not

produced before the Tribunal or before this Court. Despite

that, no positive evidence adduced to prove the negligence on

the part of the second respondent. Therefore, the Tribunal

rightly dismissed the petition and the said dismissal does not

require any interference in any manner.

8. While addressing rival arguments, a perusal of

the available documents is necessary. Ext.A1 is the copy of

FIR, registered on the basis of FIS given on the date of

occurrence by a third party, who did not witness the

occurrence, stating that M.J.Xavier died in consequence of a M.A.C.A.No.975 of 2012 ..6..

motor accident occurred near Shenoy's Junction at 5.45 p.m.

on 28.10.2002. There is no whisper regarding the number of

the vehicle or the nature of the vehicle in Ext.A1. As rightly

pointed out by the learned counsel for the respondents, no

police charge produced to support negligence. One K.J.Thomas

was examined as PW1. In fact, he was the Inspector of KSRTC

at the relevant time of accident. His evidence during chief

examination itself is that, the person, who died in the accident,

was a KSRTC conductor. He had deposed further that the

occurrence might be the result of careless attempt on the part

of the conductor to get into the bus. Thus, the evidence

available as that of PW1 in no manner support the case of the

appellants though the same, in fact, supported the case of the

respondents. RW1 and RW2, who were driver and conductor of

the KSRTC bus, also given evidence negativing the contentions

raised by the appellants. Thus, it has to be held that, in this

case, no sort of evidence is available to find negligence against

the second respondent and therefore, the Tribunal dismissed M.A.C.A.No.975 of 2012 ..7..

the application holding so.

9. In fact, the said finding does not require any

interference in any manner, since the appellants herein failed

to substantiate the negligence attributed against the second

respondent by convincing evidence or even by remote

evidence.

In the result, this appeal fails and it is, accordingly,

dismissed. Consequently, the award impugned is confirmed.

Sd/-

A.BADHARUDEEN, JUDGE rkj