Biju,S/O.Velli,P.O.Venappara,Kozhikode vs P.K.Haneefa,Puthankayyil ...
2022 Latest Caselaw 7522 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
             THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
    FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
                       MACA NO. 2772 OF 2009
AGAINST THE ORDER DATED 12.12.2007 IN OPMV 2453/2003 OF MOTOR
                ACCIDENT CLAIMS TRIBUNAL,KOZHIKODE
APPELLANT/CLAIMANT:

             BIJU, AGED 28 YEARS,
             S/O.VELLI,
             PANIYARKUNNU HOUSE,
             P.O.VENAPPARA, KODUVALLY (VIA),
             KOZHIKODE DISTRICT.
             BY ADV SMT.K.V.RESHMI


RESPONDENTS/RESPONDENTS:

    1        P.K.HANEEFA,PUTHANKAYYIL HOUSE,
             MELUR POST, KOYILANDY, KOZHIKODE.
    2        THE NATIONAL INSURANCE CO.LTD.
             BRANCH OFFICE: PARCO TOWER,
             P.M.TAJ ROAD, KOZHIKODE.

             BY ADVS.
             SRI.P.JACOB MATHEW
             SRI.SAJU J.VALLYARA


     THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 21.06.2022, THE COURT ON 24.06.2022 DELIVERED THE
FOLLOWING:
 M.A.C.A.No.2772/2009              2




                     A. BADHARUDEEN, J.
             ================================
                     M.A.C.A No.2772 of 2009
             ================================
                Dated this the 24th day of June, 2022


                          JUDGMENT

The petitioner in O.P(MV).No.2453/2003 on the file of Motor

Accidents Claims Tribunal, Kozhikode, has preferred this appeal

under Section 173 of the Motor Vehicles Act, being aggrived by

dismissal of the above petition by the Tribunal. The respondents

herein are the respondents before the Tribunal.

2. Heard the learned counsel for the appellant as well as

the learned counsel for the insurance company.

Brief facts of the case:-

While the appellant was working as a cleaner in the bus

bearing Reg.No.KL-11/K 6903, on 15.08.2003 at about 4.30 p.m

the bus dashed on a lorry bearing Reg.No.KL 11/A 6485, due to

rash and negligent driving, of the bus driver. The appellant has

sustained injuries and he was taken to Medical College Hospital.

He claimed Rs.2 lakh as compensation.

3. The 2nd respondent insurer filed written statement and

admitted valid policy to the bus bearing Reg.No.KL-11/K 6903. It

was contended before the Tribunal that the case is one arose out of

collision between two vehicles and the bus driver was not negligent

in the matter of accident. Therefore, the petition deserved to be

dismissed.

4. No oral evidence adduced in this matter. Ext.A1

duplicate copy of wound certificate alone marked on the side of

the appellant. The Tribunal, after appraising the evidence available

through Ext.A1, found that the appellant failed to establish the

motor accident as contended and also failed to establish that he had

sustained injuries in consequence of the accident. Thus the petition

was dismissed.

5. The learned counsel for the appellant argued that an

opportunity may be given to the appellant to adduce evidence in

support of his contention in the petition and for which the matter

may be remanded to the Tribunal.

6. Whereas the learned counsel for the insurance company

would submit that no documents produced before this Court also,

to see any accident and negligence on the part of the 1 st respondent,

driver of the bus, apart from Ext.A1 wound certificate.

7. It is settled law that, in order to succeed a claim under

Section 166 of the Motor Vehicles Act, based on fault liability, it is

the bounden duty of the petitioner to prove the accident as well as

negligence. Similarly, the petitioner shall prove that he sustained

injuries in consequence of the accident and for which he is entitled

for compensation. In this case, no police records produced before

the Tribunal. The one and only document marked is the copy of

wound certificate, Ext.A1. Copy of F.I.R or any other records

pertaining to the crime, if any, registered in connection with the

accident not produced before the Tribunal. It is well settled that

police report attributing negligence against the offending vehicle

can be relied on in the absence of other evidence to find the

accident and negligence. Apart from that, if independent evidence

is adduced to prove the accident, the same also can be relied on, in

tune with the police records. Thus it appears that, in this matter,

the appellant miserably failed to produce any documents relating to

the accident, not only before the Tribunal, but before this Court

also. Thus it appers that the Tribunal rightly found that no

evidence available to find a motor accident involving bus bearing

Reg.No.KL-11/K 6903 due to rash and negligent driving of the 1 st

respondent. Coming to Ext.A1, the copy of wound certificate,

wherein the history and alleged cause of injury are stated as `RTA'.

But the wound certificate does not suggest what is the mode of

accident. It is surprising to note that even though the accident is of

the year 2003 and this appeal has been filed in the year 2009, the

appellant miserably failed to produce even a scrap of paper apart

from Ext.A1, to prove the accident and also not produced copy of

police records before this Court. Thus callous negligence on the

part of the appellant could be foreseen in the matter of prosecuting

the matter throughout. Non production of police records, at least

before this Court, to find out whether the accident and negligence

alleged by the appellant are true, shows that the appellant is still in

darkness regarding the said documents. In view of the matter, it is

held that the Tribunal rightly dismissed the application and the said

judgment does not require any interference.

8. It is true that in an appropriate case, remand can also be

made facilitating the appellant to adduce evidence. But the order

of remand shall not be automatic and for which also, some sort of

prima facie materials should be there. To put it otherwise, if the

appellant produced any materials before this Court to prima facie

find that there was an accident due to the negligence on the part of

the 1st respondent involving the bus, then also, a remand is just and

proper. Since no records are available before this Court even to see

an accident and negligence prima facie, I am not inclined to

remand the matter at this stage, that is to say, after 20 years of the

accident, since no purpose will be achieved even on remand.

Therefore, this appeal is found to be meritless and is

accordingly dismissed.

Sd/-

(A. BADHARUDEEN, JUDGE) rtr/