Kerala High Court
M/S. Icici General Insurance ... vs Shantimol, W/O.Late Anthrayose on 10 August, 2022
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
2
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
3
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
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
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
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
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
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
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
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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