BY AD v. SRI.ANIL S.RAJ

BY ADVS. SRI.ANIL S.RAJ SMT.ANILA PETER SRI.G.ARUN GOPAN SMT.K.N.RAJANI SRI.J.VIVEK GEORGE RESPONDENTS/RESPONDENTS: 1 2 3 T.N.RAMESAN,S/O.NARAYANAN, THEKKUMTHALA HOUSE, MANAPPILLY,AYYAMPILLY P.O., ERNAKULAM DISTRICT PIN 682 501. K.B.BIJU,S/O.BOSE, KALAVAMPARA HOUSE, KATTATHURUTH,MOOTHAKUNNAM VILLAGE, MOOTHAKUNNAM P.O., ERNAKULAMDISTRICT, PIN 683 516. UNITED INDIA INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, VETTUKATTIL BUILDINGS, M.G.ROAD,COCHIN 682 016. BY ADVS. SRI.K.S.RAJEEV (ALUVA) SRI.M.A.GEORGE P.K.ManojKumar THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No.1349 of 2012 2 JUDGMENT The appellants are the petitioners in O.P.(M.V) No. 2319/2007 on the files of the Motor Accidents Claims Tribunal, Ernakulam. The said claim petition was submitted by them seeking compensation for the death of one Balan, who died due to the injuries sustained in a motor accident that occurred on

31.08.2007. The death was on 07.11.2007 while he was undergoing treatment. The appellants/claimants are the wife, daughter and sons of the deceased.

2. According to the appellants, the accident occurred while the deceased was travelling in a bus driven by the 2nd respondent, and when the bus negotiated a curve without reducing the speed, the deceased was thrown out from the bus and sustained injuries. He was 60 years old at the time of the accident, and at the relevant time, he was working as a Principal in a parallel college with a monthly income of Rs.4,500/-. The claim petition was submitted in such circumstances.

3. The 3rd respondent filed a written statement admitting the insurance coverage for the bus but denied the liability on M.A.C.A No.1349 of 2012 3 various grounds. The quantum of compensation was also disputed by them.

4. The evidence in this case consists of Ext.A1 to A10 from the side of the appellants, and no evidence was adduced from the side of the respondents.

5. After the trial, the Tribunal came to the conclusion that, at the time of the accident, the deceased was under the influence of alcohol, and he died due to the injuries sustained as he slipped down from the bus, losing balance due to the influence of alcohol. Therefore, the claim petition was dismissed. This appeal is submitted by the appellants in such circumstances challenging the said order of dismissal.

6. Heard, Smt.Rajani K N, the learned counsel appearing for the appellants and Sri. P.K.Manojkumar, the learned counsel appearing for the 3rd respondent.

7. It is discernible from the observations made in the award that while arriving at the conclusion that the deceased was under the influence of alcohol and fell down due to its influence, the Tribunal mainly placed reliance upon the Ext.A6 wound certificate. Of course it is true that, in Ext.A6 wound certificate, M.A.C.A No.1349 of 2012 4 the history and the alleged cause of injury was mentioned as “മദ(cid:3)പ(cid:5)ച(cid:7) വണ(cid:5)യ(cid:5)ൽ കയറ(cid:5)യത(cid:5)ന(cid:7) ശ(cid:18)ഷ(cid:20) ബ(cid:22)ലൻസ(cid:26) തതറ(cid:5) തനത(cid:22)ൻ ഊർന(cid:26) ശറ(cid:22)ഡ(cid:5)ൽ വ"ണത(cid:5)ൽ തവച(cid:26)". The Doctor also made an observation in the wound certificate that the deceased was fully under the influence of alcohol.

8. However, the question that arises is whether the claim petition can be dismissed by merely relying on the said entry in the wound certificate. When considering the other documents available on record, it is to be noted that the police registered Annexure A1 FIR as Crime No.216/2007 of Varappuzha Police Station in connection with the incident and after completing the investigation Ext. A4 final report was also submitted, wherein the driver of the bus was charge-sheeted for rash and negligent riding. In New India Assurance Co.Ltd v, Pazhaniammal [2011 (3) KLT 648], a Division Bench of this Court categorically observed that, in the absence of any contra evidence, the conclusion arrived by the police after the investigation conducted in the crime registered in connection with the accident can be accepted for determining the question of negligence. M.A.C.A No.1349 of 2012 5

9. In this case, even though there is an observation in the Ext.A6 wound certificate that he was under the influence of alcohol, that by itself cannot be a reason to attribute negligence upon the deceased himself in its entirety. The specific reason cited in the police reports as to the cause of the accident was that the deceased lost the grip while travelling in the bus and fell down from the bus through the door, when the bus violently negotiated a curve at high speed. In the wound certificate also, it was specifically mentioned that he fell down through the door of the bus. Evidently, the door of the bus was kept open, otherwise, a passenger in the vehicle would not have fallen through the door, while the vehicle was on the move.

10. Anywhere in the police report and the documents produced along with the same, the fact that the deceased was under the influence of alcohol is not mentioned. On the other hand, the culpability was specifically attributed to the driver of the bus. Therefore, merely because there were some observations in the Ext.A6 wound certificate to the effect that the deceased was under the influence of alcohol, it cannot be assumed that he lost control and fell down from the bus due to the same. When the M.A.C.A No.1349 of 2012 6 police had investigated the matter and filed a final report without any finding that the deceased was under the influence of alcohol, the Tribunal could not have disregarded the said police report in its entirety by giving preference to the Ext.A6 wound certificate over the said record.

11. Moreover, in this case, as against the conclusions arrived at by the police as per Ext.A4 charge sheet, the respondents did not adduce any contra evidence as well. The observations in the wound certificate, even if accepted, would only show that he was under the influence of alcohol, but it would not establish that the fall of the deceased was due to the influence of alcohol. He was thrown out of the bus, which evidently was on the move without closing the doors. Therefore, the driver and the owner of the bus cannot escape from the liability to pay the compensation, by attributing negligence on the part of the deceased himself. Thus, in the light of the Ext.A4 final report submitted by the police and the absence of contra evidence on the part of the respondents or any other materials to show that the fall of the deceased from the bus was due to the influence of alcohol, I am of the view that the finding of the Tribunal M.A.C.A No.1349 of 2012 7 dismissing the application is liable to be set aside and it is ordered accordingly.

12. The next aspect relates to the quantum of compensation. As the quantification of compensation was not done, since the claim petition itself was dismissed, I am of the view that the matter can be remanded back to the Tribunal for the said purpose alone. In such circumstances, this appeal is allowed. The award passed by the Motor Accidents Claims Tribunal, on 18.10.2011 in O.P.(M.V) No. 2319/2007, dismissing the claim petition is set aside. The claim petition is restored by holding that the accident occurred due to negligence on the part of the 2nd respondent in driving the bus, and there is no dispute with regard to the coverage of policy as well. In such circumstances, the 3rd respondent is held liable to pay the compensation. To determine the quantum of compensation, the matter is remanded back to the Tribunal, and all the parties shall be at liberty to adduce further evidence in support of their respective contentions, with regard to the assessment of the compensation. After considering all the said materials, the Tribunal shall take a decision on the quantum of M.A.C.A No.1349 of 2012 8 compensation. The parties shall appear before the Tribunal on

11.02.2024. Sd/- ZIYAD RAHMAN A.A. JUDGE