Kerala High Court · 2024

ANANDAN @ ANANDHAKRISHNAN, S/O. CHAMIYAR, RESIDING AT THEKKEPANAMKUTTY HOUSE, PERUVEMBU.P.O, PALAKKAD DISTRICT, 678531 MR.K. UNNIKANNAN, AGED 25 YEARS, S/O. KESAVAN, RESIDING AT THEKKEPANMKUTTY HOUSE, PERUVEMBU.P.O, PALAKKAD DISTRICT 678531 ALEXMATHEW, AGED 46 YEARS, S/O. MATHEW, RESIDING AT CHANDRANKUNNI HOUSE, NEELUR DESOM, KADANNAD VILLAGE, MEENACHIL TALUK, NELOOR P.O. KOTTAYAM - 686601 NATIONAL INSURANCE CO., LTD., EAST FORT, MAIDAN, CHITTUR ROAD, PALAKKAD. CHITTOOR P.O. 678 101. BY ADVS.SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHY SMT.REENA THOMAS SMT.NIGI GEORGE SMT.ANANTHU V.LAL. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No.942 of 2011 2 JUDGMENT Dated this the 22nd day of January, 2024 This appeal is originated from an award passed by Motor Accidents Claims Tribunal, Palakkad (for short ‘the Tribunal’) in O.P (M.V) No.931/2003 on 17.04.2008. The Original Petition was filed by the 1st respondent in the appeal on hand seeking compensation for the injuries sustained by him in a motor accident. He was a pillion in a motorcycle bearing Registration No.TN-37AB-/8670. The alleged motor accident was occurred at Kuthiran at 8:00 am on 09.09.2003, when a KSRTC bus bearing Registration No.KL-15/4179 dashed against the motorcycle in which the 1st respondent was pillion riding.

2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner, and respondents 1 to 5 in accordance with their status in the Original Petition. M.A.C.A.No.942 of 2011 3

3. The petitioner sustained serious injuries and was taken to Heart Hospital, Thrissur for treatment. There he was treated as inpatient till 20.09.2003. The injuries made him disabled. The motor accident was alleged as occurred due to the rash and negligent driving of the motorcycle as well as the KSRTC bus respectively by the 1st and 4th respondents. The owner and the insurer of the motorcycle and the owner and the insurer of the KSRTC Bus were arrayed in the Original Petition as respondents 1 to 3 and 5. A sum of `3,00,000/- was claimed as compensation. 1st respondent though served with notice did not turn up to contest the Original Petition by filing a written statement. 2nd respondent filed a written statement raising contentions that the motor accident was not occurred due to the rash and negligent riding of the motorcycle, that it was occurred due to the rash and negligent driving of the KSRTC bus by its driver, that the rider of the motorcycle was not holding a valid driving M.A.C.A.No.942 of 2011 4 licence at the material point of time and that the compensation claimed is excessive and without any basis. Claims regarding the age, occupation and monthly income of the petitioner are also disputed. 3rd respondent though served with notice did not turn up to contest the Original Petition and was declared as exparte by the Tribunal. The 5th respondent has filed written statement admitting insurance coverage of the KSRTC bus bearing Registration No.KL-15/4179 as on date of the motor accident. It was contended that the 4th respondent, the driver of the KSRTC bus was not rash and negligent while driving the same, that the motor accident was occurred due to the rash and negligent riding of the motorcycle by its rider, that the compensation claimed is excessive and without any basis. Claims regarding the age, occupation and the monthly income of the petitioner were also disputed.

4. Exts.A1 to A10 series and Ext.A11 series and Ext.A12 were marked on the side of the petitioner in M.A.C.A.No.942 of 2011 5 evidence. On appreciation of the above evidence, the Tribunal arrived at a finding that the petitioner is entitled to get compensation from the respondents. `1,39,807/- was arrived at as the compensation payable. Interest at the rate of 7.5% per annum for that sum from the date of the Original Petition till the date of realisation and a cost of `500/- were also ordered to be paid.

5. 3rd respondent before the Tribunal has approached this Court in the appeal on hand raising challenge against the motor accident itself. Alongwith the appeal memorandum, he has produced the award in OP(MV)No.1258/2004 as Annexure-A1 and that is sought to be marked in additional evidence. It is found that a petition seeking to mark the same in additional evidence under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (for short ‘the CPC’ ) is not seen filed alongwith Annexure-A1. M.A.C.A.No.942 of 2011 6

6. Though it was contended that from Annexure- A1, it can be found that the Tribunal has dismissed the Original Petition filed before Motor Accidents Claims Tribunal, Ottapalam as OP (MV) No.1258/2004 for the reason that negligence was found against the rider of the motorcycle on the basis of the scene mahazar marked in evidence and on the basis of the oral evidence tendered by RW1. The said award was challenged by the petitioner before this Court in MACA No.1431/2008. The appeal was allowed modifying the quantum but the finding of the Tribunal on negligence was maintained. The Review Petition filed by the petitioner against that was also dismissed.

7. The prayer of the learned counsel for the appellant in the appeal on hand was to reverse the finding of negligence on the part of the 4th respondent on the basis of Annexure A1 judgment in MACA No.1258/2004 passed by Division Bench of this Court confirming the M.A.C.A.No.942 of 2011 7 exoneration of liability of the 4th respondent and the order dismissing the revision filed as RP NO.697/12 passed against. The Tribunal found negligence on the part of the driver of the KSRTC bus who was arrayed as the 4th respondent on the basis of the final report marked in evidence as Ext.A5. Oral evidence was not adduced by any of the parties before the Tribunal. An allegation was also not raised against Ext.A5 by the respondents based on collusion of the petitioner and Investigating Officer while preparing the same. In that context, the Tribunal has held that the motor accident was occurred due to the rash and negligent driving of the KSRTC bus by it’s driver.

8. The learned counsel for the 3rd respondent is now before this Court canvassing for a re-consideration of the award on the basis of Annexure A1 and the order dismissing the Revision Petition. In Annexure A1, the finding of the Tribunal that the rider of the motorcycle was negligent was confirmed by the Division Bench based on M.A.C.A.No.942 of 2011 8 the description of the lie of the vehicle in the scene mahazar marked in evidence as Ext.A2 and the deposition of RW1, who is the drvier of the KSRTC, arrayed in the Original Petition as 4th respondent. In the case on hand, Ext.A4 final report chargesheeting the driver of KSRTC bus alone was there and the Tribunal fixed the liability on the driver on its basis. The respondent in the case on hand did not challenge the final report marked in evidence as Ext.A4. Collusion among the petitioner and investigating officer who laid Ext.A4 was also not alleged by the respondent. Annexure A1 judgment and the order in Revision Petition were not produced before the Tribunal while passing the impugned order. In the above circumstances that the Tribunal has found the 4th respondent responsible for causing the motor accident by his rash and negligent driving. This Court finds no reason to interfere with the finding of negligence on the 4th respondent in the M.A.C.A.No.942 of 2011 9 backdrop of the evidence available and relied on by the Tribunal. Appeal fails for the reasons and is dismissed. Sd/- MARY JOSEPH JUDGE MJL