Kerala High Court
Jolly vs Antony on 12 March, 2025
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MACA NO.1475 OF 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 12TH DAY OF MARCH 2025 / 21ST PHALGUNA, 1946
MACA NO. 1475 OF 2014
AGAINST THE AWARD DATED 24.03.2014 IN OPMV NO.851 OF 2009 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA
APPELLANTS/PETITIONERS 2 TO 5:
1 JOLLY
W/O. LATE BABY, KUNNEL HOUSE, KADALIKKADU KARA,
MANJALLOOR VILLAGE.
2 JORBIN
S/O. LATE BABY, KUNNEL HOUSE, KADALIKKADU KARA,
MANJALLOOR VILLAGE.
3 JIBIN
S/O. LATE BABY, KUNNEL HOUSE, KADALIKKADU KARA,
MANJALLOOR VILLAGE.
4 JUBIN
S/O. LATE BABY, KUNNEL HOUSE, KADALIKKADU KARA,
MANJALLOOR VILLAGE, MINOR, REPRESENTED BY MOTHER
JOLLY, W/O. LATE BABY, KUNNEL HOUSE, KADALIKKADU
KARA, MANJALLOOR VILLAGE.
BY ADVS.
SRI.T.K.KOSHY
SRI.ABE RAJAN
RESPONDENTS/RESPONDENTS 1 TO 3:
1 ANTONY
S/O. PAILY, VETTIYAMKAL VEEDU, MULLAPOUZHACHAL,
AYAVANA, KALLOORKKADU, MUVATTUPUZHA-686 661.
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2 BINU
S/O. SREEDHARAN, KUNNATHUMATTATHIL HOUSE,
KOTTAKAVALA, KALLOORKADU VILLAGE, PIN-686 661.
3 BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
KOCHI BRANCH, ERNAKULAM-682 016.
BY ADV SEBASTIAN VARGHESE(K/141/2000)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 12.03.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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JUDGMENT
The petitioners 2 to 5 in OP(MV)No.851/2009 on the files of the
Motor Accident Claims Tribunal, Muvattupuzha, are the appellants. They are
the wife and three children of the deceased 1st petitioner, Baby Mani, who
sustained injuries in the motor vehicle accident that occurred on 04.10.2008.
Subsequently during the pendency of the OP he died and it was at that time
the present appellants are impleaded as additional petitioners 2 to 5.
2. According to the petitioners on 04.10.2008 at about 8.50 p.m.,
while he was riding a motorcycle bearing reg.no.KL-06/2378 along the
Muvattupuzha-Thodupuzha public road and when he reach Carmal Nursery
School, Vazhakulam, he stopped the vehicle on the southern side of the road,
at that time a car bearing reg. no.KL-17/C 50 driven by the 2 nd respondent in
excessive speed hit against the motorcycle and as a result he fell down and
sustained injuries.
3. The 1st respondent is the owner, 2nd respondent is the driver and
3rd respondent is the insurer of the offending vehicle.
4. However the Tribunal found that the accident occurred due to the
negligence of the original petitioner himself and accordingly the claim
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petition was dismissed. Aggrieved by the above order of the Tribunal,
petitioners 2 to 5 came before this Court in appeal.
5. One of the arguments advanced by the learned counsel for the
appellants is that the accident occurred due to the negligence of the 2 nd
respondent and that the finding of the Tribunal that the accident occurred due
to the negligence of the original petitioner is not correct. On the other hand
the learned counsel for the 3rd respondent/insurer would argue that as per
Ext.P2 charge sheet filed by the police in Crime No.402/2008, the original
petitioner was made accused and as per this charge sheet the accident
occurred due to the negligence of the original petitioner himself. Therefore,
according to him, the Tribunal was justified in finding negligence on the part
of the original petitioner.
6. It is true that in Ext.P2 Final report it is alleged that the accident
occurred due to the negligence of the original petitioner. However, in this case
the appellant examined P2, from one of the witness cited in the Final Report
as PW2 to prove that the accident occurred due to the negligence of the 2 nd
respondent. When PW2 was examined he claimed that he had seen the
accident and according to him, the car hit on the motorcycle when it was
parked on the southern side of the road. However, during the cross-
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examination an attempt was made to show that he has not actually seen the
accident and that he happened to reach the place of the occurrence only after
hearing the noise of the accident. However, he denied the said suggestion.
The respondents have not examined the investigating officer to prove that
PW2 had given statement to the effect that he had reached the spot only after
hearing the noise of the accident. From Ext. A3 and A4 AMVI reports, it can
be seen that damages were noted on the front left side of the car and front
wheel of the motorcycle. Though, as per C2 & A2 scene mahazar, the place of
occurrence is 2.6 mts. towards north from the southern tar end nobody was
examined to prove the place of occurrence. In the above circumstances, the
learned counsel for the appellants relying upon the decision of the Hon'ble
Supreme Court in Jiju Kuruvila and Others v. Kunjujamma Mohan and
Others [2013 (9) SCC 166], would argue that the Tribunal was not justified
by in relying upon the scene mahazar to discard the evidence of PW2. In this
case, the exact scene of occurrence is not proved by examining the any
witnesses who have actually witness the accident. The only witness examined
in this case is PW2 depose that he had seen the accident and according to him
the accident occurred when the car hit on the motorcycle which was parked
by the deceased at the southern side of the road. Since the AMVI noted
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damages on the left front side of the car and on the front portion of the
motorcycle. The motorcycle must have race at least the southern end of the
road, since the road at the place of occurrence had a width of 12 mts. there
was enough space for a car driver also to turn his car towards north. In the
above circumstances, from the available evidence, it can be seen that, there
was negligence on the part of the 2nd respondent also in the occurrence of the
accident. In such circumstances, it is not possible to appreciate the
contributory negligence on the part of the rival driver exactly. In the above
circumstances, I hold that, from the available evidence, it can be held that,
there was equal contribution from the original petitioner as well as from the
2nd respondent and as such the Tribunal was not justified in holding that the
accident occurred solely due to the negligence of the original petitioner.
7. In the above circumstances, the impugned award passed by the
Tribunal dismissing the claim petition is liable to be set aside and the matter
requires reconsideration by the Tribunal in the light of the above observations.
Therefore this appeal is allowed, impugned award is set aside and the matter
is sent back to the Tribunal for fresh disposal as per law.
8. In the above circumstances, for the purpose of assessing the
quantum of compensation the matter is remanded to the Tribunal. Considering
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the fact that this OP of the year 2009 the Tribunal have right to every
endeavor to dispose of the same at the earliest at any rate within a period of
six months from the date of receipt of this judgment. The parties are directed
to appear before the Tribunal on 25.04.2025.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
Pvv
