IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS
WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931
MACA.No. 402 of 2005()
---------------------AGAINST THE JUDGMENT IN O.P.(MV) 1232/99, MACT, MUVATTUPUZHA
## APPELLANT/PETITIONER
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K.P.MAIYAMMA W/O. LATE C.P.GEORGEKUTTY AGED 42 YEARS, CHAKKANAKKUZHIYIL HOUSE, PERINGOLE, P.O.KOLENCHERY
BY ADV. SRI.SAJEEV KUMAR K.GOPAL
RESPONDENT(S): RESPONDENTS
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1. DR.P.K.RASHEED, S/O.KUNJUMOHAMMED HAJI, APADIYATHU MANAPPATTU HOUSE, ERIYADU DESOM, ERIYADU VILLAGE, KODUNGALLOOR, THRISSUR DISTRICT.
2. THE BRANCH MANAGER, ORIENTAL INSURANCE CO.LTD., BRANCH OFFICE, MANAPPATTU BUILDING, KODUNGALLOOR.
3. THE BRANCH MANAGER, NEW INDIA ASSURANCE CO.LTD. BRANCH OFFICE, SILVER PLAZA SHOPPING COMPLEX, CALICUT.
ADV. SRI.C.S.ABDUL SAMMAD FOR R1 ADV. SRI. GEORGE CHERIAN (THIRUVALLA) FOR R2 ADV. SRI. RAJAN P. KALIYATH FOR R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2009, A/W. MACA NOS. 406 & 426 OF 2005, THE COURT ON 24/06/2009 DELIVERED THE FOLLOWING:
## **K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ.**
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- - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of June, 2009
## **JUDGMENT**
## **Joseph Francis, J.**
M.A.C.A. 402 of 2005 is an appeal filed by the petitioner in O.P.(M.V) 1232 of 1999, M.A.C.A. 406 of 2005 is filed by the petitioners in O.P.(M.V) 1501 of 1999 and M.A.C.A. 426 of 2005 is filed by the petitioner in O.P.(M.V.) 1267 OF 1999 on the file of the Motor Accident Claims Tribunal, Muvattupuzha. Respondents 1 to 3 are respondents 1 to 3 in the above Original Petitions.
2. All the above Original Petitions are filed under Section 166 of the M.V. Act. The common case of the petitioners is briefly as follows. The petitioner in O.P.(M.V) 1232 of 1999 and the petitioner in O.P.(M.V.) 1267 of 1999 were travelling in a
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## M.A.C.A.Nos. 402, 406 & 426 of 2005
Maruti car bearing No.KL 10/A 3636 driven by one Georgekutty from south to north along NH 17 on 16.5.1999. When that Maruti car reached at Mathilakam at about 2.30 p.m., an Ambassador car bearing No.KLP 3529 driven by the first respondent came from the opposite direction and collided with the Maruti car, as a result of which, Georgekutty and the passengers in the Maruti car sustained injuries. They were taken to Modern Hospital, Kodungallur and they were referred to the Medical Trust Hospital, Ernakulam. Georgekutty died on 31.5.1999, while undergoing treatment in that hospital due to the injuries sustained in the accident. The petitioner in O.P.(M.V) 1232 of 1999 and the petitioner in O.P.(M.V) 1267 OF 1999 were also treated in that hospital as inpatients. The petitioners alleged that the accident occurred due to the rash and negligent driving of the first respondent, who was driving the Ambassador car. The second respondent is the Insurer of that car. The third respondent is the Insurer of the Maruti car.
M.A.C.A.Nos. 402, 406 & 426 of 2005
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3. The petitioners in O.P.(M.V) 1501 of 1999 are the wife,
children and mother of deceased Georgekutty. The petitioner in O.P.
(M.V) 1232 of 1999 is the wife and the petitioner in O.P.(M.V) 1267 of 1999 is one of the sons of deceased Georgekutty, who were travelling in the Maruti car.
4. The first respondent remained ex parte before the Claims Tribunal. The second respondent filed written statement admitting the policy of the Ambassador car and contended that the accident occurred due to the negligence of deceased Georgekutty, who was driving the Maruti car. The third respondent filed written statement admitting the policy of the Maruti car and contended that the accident was due to the negligence of the first respondent, who was driving the Ambassador car.
5. Before the Claims Tribunal, all the above Original Petitions were jointly tried and evidence was recorded in O.P.(M.V.) 1232 of 1999. PWs. 1 to 6 were examined and Exts. A1 to A8, B1 to B6 and
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X1 to X5 were marked. The learned Claims Tribunal, on considering the evidence, dismissed all the above Original Petitions on finding that the accident was due to the negligence of Georgekutty, who was driving the Maruti car and that the petitioners failed to prove negligence on the part of the first respondent, who was driving the Ambassador car. Against that common award, the petitioners in the above Original Petitions filed the above appeals.
6. Heard the learned counsel for the appellants and the learned counsel for the respondents.
7. On going through the common award of the Claims Tribunal, it is seen that the Tribunal appreciated the evidence as if it was holding a criminal trial and the petitioners were required to establish the occurrence beyond any reasonable doubt. It is now well settled position of law that while considering a claim petition, the Tribunal is required to hold an enquiry and is not to act as a criminal court so as to find whether the claimants have established the occurrence beyond any
## M.A.C.A.Nos. 402, 406 & 426 of 2005
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shadow of doubt. In the enquiry if there is prima facie evidence of the occurrence, there is no reason to disbelieve such evidence.
8. The learned counsel for the appellants, relying on the decisions reported in **The Krishna Bus Service Ltd. v. Smt. Mangli & others** ((1976) 1 SCC 793) and **Shaju v. Babu** (2007 (4) KLT 1076), argued that the maxim ' _**res ipsa loquitur**_ ' is applicable in the facts of the case. But on considering the facts and circumstances of the case, we are of the view that the principle ' _**res ipsa loquitur**_ ' is not applicable in this case. The learned counsel for the appellants, relying on the decision in **The Krishna Bus Service Ltd. v. Smt. Mangli and others** (AIR 1976 SC 700) submitted that since the first respondent, who was driving the Ambassador car, had special knowledge of the relevant factors, he had to explain how the accident occurred and as he is not examined an adverse inference can be drawn
against the first respondent. We will consider this aspect while appreciating the evidence adduced in these cases.
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9. PW1, Mariamma, is the petitioner in O.P.(M.V) 1232 of 1999 and the first petitioner in O.P. (M.V) 1501 of 1999. She is an eye witness to the accident, who was travelling in the Maruti car involved in the accident. PW1 deposed that on 16.5.1999 at about 2.30 p.m. she was travelling along with her son in a Maruti car bearing No.KL 10/A 3636 driven by her husband deceased Georgekutty from south to north through NH17 and when that car reached at Mathilakam, an Ambassador car bearing No.KLP 3529 driven by the first respondent in a rash and negligent manner came from the opposite direction from north to south and hit on the front side of the Maruti car, as a result of which, PW1, her husband Georgekutty and their son sustained injuries and Georgekutty died on 31.5.99 while undergoing treatment in the hospital.
10. PW1 swears that the accident was occurred due to the rash and negligent driving of the Ambassador car by the first respondent. PW1 deposed that the accident occurred when the Ambassador car went to the western side of the road. PW3, Sajeevan, is an eye witness
M.A.C.A.Nos. 402, 406 & 426 of 2005
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who was conducting a Canteen near Yamuna Theatre, Peringanam. He swears that the accident occurred due to the rash and negligent driving of the first respondent, who was driving the Ambassador car.
11. PW3 deposed that the accident occurred when the Ambassador car suddenly turned towards the western side of the road. Immediately after the accident, PW3 and others took the passengers in another Maruti car to the hospital. He swears that due to the accident there was a traffic block in the road and when he returned back from the hospital he saw the Maruti car on the eastern side of the road and the Ambassador car was not there.
12. PW5, Sabu, is an eye witness to the accident. He saw the Ambassador car hitting on the Maruti car coming from the opposite side. According to him the accident was due to the rash and negligent driving of the first respondent, who was driving the Ambassador car. At that time, PW5 was driving his Maruti car from north to south and he was travelling 50 yards behind the Ambassador car. After the
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## M.A.C.A.Nos. 402, 406 & 426 of 2005
accident PW1, her husband and son were taken to the hospital in the Maruti car driven by PW5.
13. In connection with the accident, a crime was registered as Crime No.225 of 1999 of Mathikalakam Police station under Sections
279 and 337 I.P.C. against deceased Georgekutty on the basis of the F.I. statement given by the first respondent on 17.5.1999. Ext.X4(a) is the scene mahazar prepared on 18.5.1999, as shown to the police by the first respondent. Since the F.I. statement is not given by an independent witness and as it is given by the first respondent, who is interested in absolving his own liability in the accident, we cannot rely on that statement given by the first respondent. The scene mahazar is prepared as shown by the first respondent. The accident was on 16.5.1999 but the scene mahazar was prepared only on 18.5.1999. No tyre marks is noted in the scene mahazar. CW2 is the brother and CW3 is the wife of the first respondent. CWs. 4 to 7 are not eye witnesses to the accident. The case diary shows that the police has not recorded the statement of independent eye witnesses. Therefore much reliance
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cannot be placed on the police records. Since the first respondent had not gone to the witness box, an adverse inference can be drawn against him. As the evidence of PW1 is corroborated by the evidence of PWs. 3 and 5, the Tribunal is not justified in discarding their evidence. As the accident occurred more or less in the middle of the road and it was a head on collision between two cars, we are of the view that the driver of the Maruti car, deceased Georgekutty, and the first respondent, driver of the Ambassador car, are equally responsible for the accident.
14. The learned Claims Tribunal has not assessed the compensation payable to the petitioners in the above Original Petitions as those Original Petitions were dismissed on the ground that the petitioners have failed to prove negligence on the part of the first respondent, who was driving the Ambassador car. In view of our finding that the first respondent was 50% negligent, the Tribunal has to assess the compensation payable to the petitioners in the above
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## M.A.C.A.Nos. 402, 406 & 426 of 2005
Original Petitions on that basis. For that purpose the above Original Petitions have to be remanded back to the Tribunal for fresh disposal.
15. Accordingly, M.A.C.A. Nos. 402, 406 and 426 of 2005 are allowed. O.P.(M.V) Nos. 1232, 1267 and 1501 of 1999 are remanded to the M.A.C.T., Muvattupuzha for considering the question regarding compensation payable to the petitioners. For assessing the compensation, the Tribunal shall give sufficient opportunity to both sides to adduce further evidence. The parties are directed to appear before the Claims Tribunal on 7.8.2009. The parties are directed to suffer their respective cost in these appeals.
**(K. M. JOSEPH)** Judge
**(M.L. JOSEPH FRANCIS)** Judge
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