K.K. Sivankutty Painamparambil Mudiyackal v. The Managing Director, KSRTC; V. E. Basheer Vazhipparampil; The National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA WEDNESDAY, THE 15[TH] DAY OF JUNE 2022 / 25TH JYAISHTA,** ## **1944** ## **MACA NO. 2330 OF 2009** **AGAINST THE AWARD IN OPMV 743/2005 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANT:** K.K.SIVANKUTTY PAINAMPARAMBIL MUDIYACKAL, MEENADOM POST,, PUTHUPPLLY, KOTTAYAM. BY ADVS. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI ## **RESPONDENTS:** 1 THE MANAGING DIRECTOR, K.S.R.T.C K.S.R.T.C. THIRUVANANTHAPURAM. 2 V.E.BASHEER VAZHPPARAMPIL KANJIRAMPPALLY, KOTTAYAM. 3 THE NATIONAL INSURANCE CO. LTD. KOTTAYAM. BY ADVS. SRI.JOY GEORGE, SC, K.S.R.T.C. SRI.E.M.JOSEPH SRI.P.C.CHACKO(PARATHANAM) ALEX ANTONY SEBASTIAN P.A. SRI. E.M JOSEPH - R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.05.2022, THE COURT ON 15.06.2022 DELIVERED THE FOLLOWING: M.A.C.A.No.2330/2009 2 ## **M.R.ANITHA, J** ****************** M.A.C.A.No.2330 of 2009 ----------------------------------------------Dated this the 15[th] day of June, 2022 ## **JUDGMENT** This appeal has been directed against the dismissal of O.P (M.V) No.743/2005 on the file of Motor Accidents Claims Tribunal, Kottayam (in short 'Tribunal'). The claim petition has been filed under Section 166 of Motor Vehicles Act, 1988 (in short 'the Act') for the injury sustained by the appellant/claimant in a motor accident alleged to have occurred on 05.07.2001 at about 2.30 p.m in front of Logo Junction, Shastri Road, Kottayam. A total compensation of Rs.1,85,000/- was claimed. It is alleged that the accident happened due to the rash and negligent driving of the 2[nd] respondent/driver of the KSRTC bus bearing Reg.No.KL-15 3538 (TS 436). The bus was in a high speed and at the Logos Junction, the right side of the bus hit the traffic island. Due to M.A.C.A.No.2330/2009 3 that hit, the appellant/claimant fell down on the road from the bus and sustained injuries. 1[st] respondent is the Managing Director of the KSRTC bus and 3[rd] respondent is the insurer of the bus. 2. Before the Tribunal, respondents 1 and 2 filed joint written statement contending that the appellant/claimant is put to strict proof regarding the age, occupation and income claimed in the petition. No injuries, as alleged, has been sustained to the appellant/claimant due to the alleged accident. The compensation claimed under various heads are also contended to be excessive and baseless. Rashness and negligence on the part of the second respondent is denied and it is contended that he was driving the bus carefully observing the traffic rules. The accident occurred only due to the negligence of the appellant/claimant. The bus was validly insured with the third respondent. So, no liability can be fastened on these respondents. 3. Third respondent/insurer filed separate written statement admitting the policy coverage with respect to M.A.C.A.No.2330/2009 4 KSRTC bus bearing Reg.No.KL 15/3538. The age, income and occupation of the appellant/claimant alleged in the petition are denied. The allegation that KSRTC bus was in high speed and right side of the bus hit the traffic island at Logos Junction, is denied. The appellant has been working as Conductor in KSRTC bus at Kottayam Depot. On the date of accident he was travelling to Collectorate, Kottayam for his personal purpose. When the bus reached near Collectorate, the petitioner got out of the running bus without the permission or knowledge of the conductor or driver of the bus and thereby he fell down on the road and sustained injuries. Though crime was registered, after investigation, the case was referred as false. In any way, the appellant/claimant is liable for contributory negligence. The driver of the vehicle was not having valid driving licence. The owner of the vehicle has not intimated the accident or filed any claim to the Company. There is collusion between respondents 1 and 2. Hence the third respondent sought permission to contest on all grounds. M.A.C.A.No.2330/2009 5 4. PWs 1 to 3 were examined and Exts.A1 to A9 and Ext.X1 were marked from the side of the appellant/claimant. There was no evidence from the side of the respondents. 5. The Tribunal, on evaluating the evidence, came to the conclusion that driver of the KSRTC bus was not at all responsible for the fall of appellant and thereby the appellant/claimant failed in proving negligence against the second respondent/driver of the KSRTC bus. So, the respondents are not liable to pay any compensation to the appellant/claimant and accordingly the claim petition was dismissed. 6. Aggrieved by the award dismissing the claim petition, appellant/claimant approached this Court in appeal on various grounds stated in the memorandum of appeal. 7. Adv.P.C.Chacko entered appearance on behalf of the 1[st] respondent. Adv.E.M.Joseph appeared on behalf of the third respondent. Notice as against the second respondent is dispensed with. Heard both sides. Lower court records were called for and perused. M.A.C.A.No.2330/2009 6 8. According to the learned counsel for the appellant, the Tribunal failed to appreciate the facts and circumstances and evidence adduced in a proper perspective and erroneously dismissed the claim finding that the second respondent driver of the KSRTC bus is not negligent. Evidence adduced by the appellant through PW1 DTO admitting the genuineness of FIR before the Tribunal has not been considered. A crime was registered in pursuance of the FIS lodged by the appellant and subsequently the fact that the crime was referred by itself is not a reason to discard the claim since the appellant through PW1 to PW3 and the documents proved the accident and negligence on the part of the driver of the bus. He would also contend that one of the reasons for finding against the appellant is non-production of the reports of the concerned driver and conductor on the same day. Along with the appeal memorandum he filed I.A.No.2724/2009 and produced attested copies of the reports filed by driver and conductor of the KSRTC bus as Annexures A and B. He would also contend that the Tribunal had not evaluated M.A.C.A.No.2330/2009 7 the injuries sustained and the compensation to be awarded and at any rate the award passed by the Tribunal is not sustainable in law or on facts. 9. Learned counsel for the third respondent, on the other hand, would vehemently contend that the appellant sustained injury while he tried to alight from a running bus at Logos Junction in order to go to Kottayam Collectorate and there was no rashness and negligence on the part of the second respondent and though crime was registered, it was referred as false. Even though a protest complaint was filed by the appellant that was also decided against him. So, the appellant could not establish any rashness and negligence on the part of the second respondent in the accident in which he sustained injury and hence a petition under Section 166 of the M.V.Act is not at all maintainable and thereby the dismissal of the claim petition by the Tribunal cannot be interfered with. 10. From the above, the point that arise for consideration before this Court is whether the dismissal of the claim petition by M.A.C.A.No.2330/2009 8 the Tribunal for the reason that the 2[nd] respondent/driver of the bus is not responsible for the fall of the appellant from the bus is correct? 11. The Tribunal dismissed the claim petition mainly for the following reasons: (1) The intimation given from the medical college hospital to Traffic Police Station would state the cause of accident as fall on touching the wheel of the bus on the ridge while alighting from the bus and that intimation is not challenged. (2) The police officer after investigation filed refer report finding no negligence on the part of the driver and that refer report has not been produced, though appellant admitted during evidence about the filing of protest complaint by him, the judgment of the Magistrate Court on the basis of protest complaint filed by the appellant has not been produced. (3) There is no charge sheet against the driver of the bus on the basis of complaint filed by the appellant. (4) The delay in registering F.I.R by the KSRTC Kottayam M.A.C.A.No.2330/2009 9 before the Managing Director, KSRTC, Thiruvananthapuram. (5) Non-production of the investigation report and report filed by the Conductor and driver of the KSRTC bus involved in the accident and non-explanation of the above aspect by PW1, the District Transport Officer, KSRTC, Kottayam. (6) Collusion between the appellant and the employees of KSRTC by making manipulation in registering delayed FIR. (7) The FIR so registered before the Managing Director (Ext.A5) (Ext.X1) does not indicate that the accident occurred due to the negligence of the second respondent nor that appellant sustained injuries in an accident because of the rash and negligent driving of the second respondent and the delay caused in registering the same also not explained. (8) PW3, the witness examined, is not a reliable witness. (9) No evidence to prove that Korah who alleged to have sustained injury in the same accident was questioned by the police or undergone any treatment when he is also a driver of the KSRTC bus and nothing produced to prove that he is no more. M.A.C.A.No.2330/2009 10 (10) Inconsistent allegations in the FIS as well as in the pleadings. - (11) Lack of evidence to prove any damage sustained to - the bus due to hit on the traffic island. (12) The traffic police constable in the traffic island has not been cited as a witness. 12. Admittedly, this is a case in which no charge sheet has been filed by the police against the second respondent/the driver of the KSRTC bus. Ext.A1 is the copy of the FIR registered by the Kottayam Traffic Police Station in pursuance of the FIS given by the appellant. Ext.A2 is the copy of the FIS of the appellant recorded by the Head Constable attached to Traffic Police Station, Kottayam on 06.07.2001 at Medical College Hospital at about 4.30 p.m while he was undergoing treatment. In the F.I.S appellant has specifically stated that in front of Logos Centre bus suddenly twisted and the appellant who was standing on the rear side of the bus near the door by holding the top handrail thrown away from the bus and fell down on the road. Immediately he M.A.C.A.No.2330/2009 11 was taken to District Hospital and fracture was detected. He categorically stated that the accident occurred since the driver twisted the curve at a very high speed. It is true that in Ext.A1 F.I.R the intimation given by the Medical Officer attached to Director of Medical Education, Medical College Hospital has been attached wherein the Doctor had stated the alleged cause as fall on touching the wheel of the bus on the ridge while alighting from the bus. But, it is to be noted that the FIS did not contain any such version. The intimation given by the duty Doctor and the alleged cause stated by the Doctor in the said intimation cannot have any overriding effect over the FIS given by the appellant. That is the reason why while registering the FIR it has been categorically stated that while the bus reached in front of Logo Centre at the Traffic island, suddenly twisted towards Collectorate road causing the appellant to throw out of bus to the road and sustaining injury. 13. It is true that in the FIS Ext.P2, he stated that while he was going to Collectorate for his personal purpose, accident M.A.C.A.No.2330/2009 12 occurred whereas in the claim petition he has alleged that he got into the bus to go to his home. So, the Tribunal was of the view that the pleading and statement in FIS are inconsistent. It is relevant in this context to quote **Bimla Devi & Ors vs Himachal Road Transport Corpn. & : MANU/SC/0577/2007 : AIR 2009 SC 2819 : 2009 ACJ 1725.** That appeal was directed against the dismissal of a claim petition by the High Court of Himachal Pradesh, Shimla. While allowing that appeal, and setting aside the judgment of High Court in Paragraph 12 it has been held thus : _“12. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a Tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's_ M.A.C.A.No.2330/2009 13 _predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post mortem report vis-`-vis the averments made in a claim petition. ”_ 14. So, too much reliance of the Tribunal on the pleadings about the purpose for which the appellant boarded the bus is not at all warranted since the place where the accident occurred is not in dispute by any of the parties. 15. Next aspect is filing of refer report by the police and failure on the part of the appellant to produce the judgment passed in connection with the protest complaint filed by him. It is not in dispute that police has referred the crime as against the driver and the refer report has not been produced. But, in order to prove the accident and negligence of the driver appellant got examined himself as PW2 and PW3 a witness was also examined. The person who alleged to have taken him to the hospital and also PW1, the District Transport Officer, Kottayam have been examined. In **New India Assurance Co.Ltd v. Pazhaniammal : 2011(3) KLT 648** , a Division Bench of this Court dealt with in M.A.C.A.No.2330/2009 14 detail the mode of proof of negligence on the part of driver in motor accident claims. Paragraph No.9 of the said judgment is relevant in this context to be extracted which reads thus: _“9. The only question in this case is whether even in the absence of a specific finding on the question of negligence by the Tribunal, the impugned award is justified. The driver is in charge of the vehicle. He is responsible for the safety of all passengers in the vehicle. It is up to him to ensure that the doors are properly locked/fastened before he starts driving the vehicle. This burden on him is elementary and fundamental in the interests of the safety of persons who are being carried in his vehicle. The duty of the driver to the passenger must include the elementary duty of ensuring that the doors are properly fastened/locked before the vehicle is started. In the instant case the only evidence available is that while the deceased was travelling as a passenger, he made some movement; the door gave way; It opened and the passenger was thrown out of the vehicle. Certainly in these circumstance negligence on the part of the driver lies in the fact that he did not insist that the doors are properly locked and fastened before he started the vehicle. The accident speaks for_ M.A.C.A.No.2330/2009 15 _itself. The owner and the driver have no contra assertion. It cannot be held as a rule of law that a driver is not responsible if the door of the vehicle opens consequent to some movement of the passengers inside the jeep and one of the passengers is thrown away from the jeep. The negligence in the instant case lies in the fact that the driver had admittedly not ensured that the doors are properly fastened/locked before he started the vehicle. On that negligence the victim is certainly entitled to compensation. There is no case that the doors which were properly fastened/locked were opened by any of the passengers negligently. Such a plea if any should certainly come from the driver/owner. In the absence of such a plea the negligence which is evidently established from the totality of facts and circumstances clearly constitute the foundation of the direction to pay compensation. Even though the Tribunal had not approached the question from this angle, we are of the opinion that the ultimate direction of the Tribunal is justified in the facts and circumstances of this case."_ In paragraph 7 of the said judgment, it has also been categorically found that M.A.C.A.No.2330/2009 16 _“We would certainly not want the Tribunals to be prisoners of the conclusions of police officers. If the Tribunal finds it suspicious, it can insist for better evidence. But as a general rule it can safely be accepted that production of the police charge sheet is prima facie sufficient evidence of negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. A system cannot feed itself on a regular diet of distrust of the police. Prima facie, charge sheet filed by a police officer after due investigation can be accepted as evidence of negligence against the indictee. If any one of the parties do not accept such charge sheet, the burden must be on such party to adduce oral evidence. If oral evidence is adduced by any party, in a case where charge sheet is filed, the Tribunals should give further opportunity to others also to adduce oral evidence and in such a case the charge sheet will pale into insignificance and the dispute will have to be decided on the basis of the evidence. In all other cases such charge sheet can be reckoned as sufficient evidence of negligence in a claim under Section 166 of the Motor Vehicles Act. We mean to say that on production of such charge sheet the shifting of burden must take place. It is not as_ M.A.C.A.No.2330/2009 17 _though we are not conscious of the dangers and pit falls involved in such an approach. But we feel that adoption and recognition of such practice would help to reduce the length of the long queue for justice before the Tribunals. The judicial recognition of the practice will help the Tribunals to ensure the optimum use of judicial time at their disposal for productive ventures."_ Paragraph 8 of the said judgment is also relevant in this context to be extracted which reads thus: _"8. We do not intend to say that collusive charge sheets need be accepted. Wherever on the facts of a given case the Tribunals feel that the police charge sheet does not satisfy their judicial conscience, the Tribunals can record that the charge sheet cannot be accepted and can call upon the parties, at any stage, to adduce oral evidence of the accident and the alleged negligence. In such a case, the issue of negligence must be decided on the other evidence, ignoring the charge sheet."_ 16. So, from the above, it could be found that the Tribunals are not bound by the conclusions of the police charge and what is held therein is that as a matter of prudence and convenience police chargesheet filed after due investigation M.A.C.A.No.2330/2009 18 _prima facie_ can be accepted as evidence, as proof of negligence against the indictee and if anyone of the parties do not accept the chargesheet the burden is upon such party to adduce oral evidence. If oral evidence is adduced by any party in a case where chargesheet is filed, Tribunal should give further opportunity to others to adduce oral evidence and in such a case chargesheet will fell into insignificance and the dispute will have to be decided on the basis of evidence. Here, though a crime has been registered by the police, after investigation it was referred. Claimant along with an eye witness (PW3) and PW1, the District Transport Officer, Kottayam along with documents like medical records, FIR and FIS etc have been produced to prove the accident, injuries sustained by him as well as the negligence of the driver. 17. It is to be noted that in the claim petition in column No.28 there is specific allegation that accident happened due to the rash and negligent driving of the second respondent/driver of the KSRTC bus bearing Reg.No.KL-15 3538 (TS 436) In the M.A.C.A.No.2330/2009 19 written statement filed by respondents 1 and 2, they denied the said allegation and further contended that the accident occurred solely due to the negligence of the petitioner. But the allegation in the claim petition that when the bus reached in front of Locos Centre in high speed the right side of the bus hit to the traffic island at Logos Junction and out of it the appellant fell down to the road and sustained injuries as described in Column No.11 is not seen specifically denied. What is the negligence attributed against the appellant is also not specified in the written statement of respondents 1 and 2. If at all the respondents 1 and 2 have got a case that the appellant jumped out of the bus when reached at Logos Junction in order go to Collectorate it ought to have been raised in the written statement. Though in the written statement filed by the third respondent it has been contended that when bus reached near Collectorate, the appellant got out of the running bus without the permission and knowledge of the driver and conductor and thereby he fell down and sustained injuries and suggestions to that effect has also been put during M.A.C.A.No.2330/2009 20 cross-examination at the instance of third respondent, that has been stoutly denied by the appellant. As has been held in **Pazhaniammal,** it is upon the driver or owner/1[st] or 2[nd] respondent who was in-charge of the vehicle at the time of accident to specifically contend how accident occurred and prove the same. Here none of the witnesses were cross examined by 1[st] and 2[nd] respondents. If at all the appellant actually jumped out of the bus without the knowledge of the Conductor or the Driver as has been alleged by the third respondent it could have been proved by examining the driver or conductor. That has not been done. It has come out that accident occurred while the bus was running. So the principle of 'res ipsa loquitor' also applies. The contentions so advanced by the third respondent are also seem to be quite unbelievable especially because the appellant during the time of accident was a conductor attached to Kottayam Depot of K.S.R.T.C. So, if at all he actually wanted to alight at the Logos Junction in traffic island he could have very well requested the driver or the conductor to slow down the bus for enabling him M.A.C.A.No.2330/2009 21 to alight from the bus at the place of accident inspite of jumping out of the running bus as contended. 18. Moreover, apart from making such contention in the written statement, 3[rd] respondent could not adduce any contra evidence to the evidence tendered by the appellant as PW2. Nothing was also brought out to discredit his testimony during cross examination also. Since accident occurred while the bus was running, the case projected by the appellant is seems to be more probable also. 19. So also the medical records produced from the side of the appellant as Ext.A6 to A8 would go to show that he was examined at Medical College Hospital at 6.20 p.m on 05.07.2001 with the alleged history of road traffic accident and he sustained Montegge fracture, dislocation of radius. The history stated in the case sheet is, RTA at 2.30 p.m history of no loss of consciousness, vomiting, no history of seizures and he is complaining of pain at right elbow and pain is aggravated by moving the elbow. The appellant was also examined as PW2 and M.A.C.A.No.2330/2009 22 he deposed that he was taken to District Hospital by the passengers in the bus and Conductor and Driver and after examination by the Doctor he was referred to Medical College Hospital. 20. PW3 alleged to have witnessed the incident. He was also a passenger in the bus sitting in the front seat of the Conductor's seat and the bus was plying with high speed while going through Logos Junction towards Collectorate road he heard a noise and thereupon himself and others alighted from the bus and saw the appellant lying on the road and himself and others taken the appellant and other injured Kora to District Hospital initially and from there to Medical College Hospital. The Tribunal was not prepared to believe PW3 for the reason that he has not been questioned by the police and PW2 know that himself had taken him to the hospital but PW2 did not refer about his name. Again it has been found by the Tribunal that a traffic police constable would be present in the traffic island. But, PW3 pleaded ignorance about the police constable at the scene at the time of M.A.C.A.No.2330/2009 23 occurrence. But the medical records produced from the side of the appellant would convincingly establish the examination of PW2 at Medical College Hospital on the same day and the treatment undergone by him till 07.07.2001. Subsequently also, Ext.A7 shows the follow up treatment undergone by him in connection with the same. So, the accident, injury sustained by the appellant etc could be established convincingly by the appellant both by the oral and documentary evidence. So, the only question is whether there is any material to conclude that the accident happened due to the overt act of the appellant in jumping out of the bus on reaching Logos Junction. As found earlier, apart from the contention in the written statement by the 3[rd] respondent and suggestions put to PW2 during examination, there is no evidence whatsoever to substantiate the contention of the third respondent that the accident happened due to the act of the appellant in jumping out of the running bus. In this context, it is relevant to quote **Kaushnuma Begum v. New India Assurance Company Ltd : 2001 (1) KLT 408** wherein the M.A.C.A.No.2330/2009 24 Apex Court while dealing with Section 165 of the Act the question arose whether the claim can be maintained before the Motor Accident Claims Tribunal on the basis of strict liability propounded by Rylands v. Fletcher, 1861-1873 All England Reports 21. In that case, the Tribunal dismissed claim made before it solely on the ground that there was neither rashness nor negligence in driving the vehicle and hence the driver has no liability, and the corollary of which is that the owner has no vicarious liability to pay compensation to the dependents of the victim of a motor accident. A Division Bench of the High Court of Allahabad dismissed the appeal against which the claimant approached the Apex Court. It is true that it was a case in which the accident occurred on 20.03.1986 that is before the Amendment. In that case, the jeep involved in the accident capsized while it was in motion due to bursting of the front tyre of the jeep. In that process, the vehicle hit on Haji Mohammed Hanif who was walking on the road and consequently he succumbed to the injuries. Appellants are the widow and children M.A.C.A.No.2330/2009 25 ## of Haji Mohammed Hanif. Paragraphs 12 and 19 of the said decision are relevant which reads thus: _“12 . Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident? This question depends upon how far the Rule in Rylands vs. Fletcher (supra) can apply in motor accident cases. The said Rule is summarised by Blackburn, J, thus:_ _"The true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default, or, perhaps, that the escape was the consequence of vis major, or the act of God; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient."_ _19. Like any other common law principle, which is acceptable to our jurisprudence, the Rule in Rylands vs. Fletcher can be followed at least until any other new principle which excels the former can be evolved, or until_ M.A.C.A.No.2330/2009 26 _legislation provides differently. Hence, we are disposed to adopt the Rule in claims for compensation made in respect of motor accidents._ 22. So, even though that was a case prior to the amendment of the Act, the Apex Court was pleased to award compensation in a case where there was no negligence on the part of the driver or owner of the vehicle. 23. Third respondent also would contend about the delay caused in registering Ext.A5 (Ext.X1). But it is for the first respondent to explain the delay since the lodging of FIR before the Managing Director is not under the control of the appellant, who is the injured passenger in the bus. 24. In **N.K.V. Brothers (P) Ltd. v. V.M.Karunamai Ammal and Others : AIR 1980 SC 1354 : (1980) 3 SCC 457 : 1980 SCC (Cri) 774** Apex Court while dealing with S.110B and S.110C of Motor Vehicles Act, 1939 held that Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability only because of some doubt here or some obscurity there. M.A.C.A.No.2330/2009 27 25. Yet another contention advanced by the learned counsel is with regard to the non-production of the investigation report and report filed by the Conductor and driver of the KSRTC bus involved in the accident from the side of the appellant and non-explanation of the above aspect by PW1, the District Transport Officer, KSRTC, Kottayam. But at the time of argument the learned counsel for the appellant would contend that along with the appeal appellant filed I.A.No.2724/2009 along with copies of the report filed by the conductor and driver as well as the investigation report filed by the Inspector, K.S.R.T.C, Kottayam as Annexures A, B and C. But the learned counsel for the third respondent/insurer would contend that no copy of those documents or I.A has been served upon them. So without serving copy to the contesting respondent, the application cannot be considered by this Court. Moreover, on looking at the Award, it is seen that the Tribunal has not evaluated the injuries and also not assessed the compensation to be awarded. So the Award passed by the Tribunal suffers that infirmity also. Taking the overall facts M.A.C.A.No.2330/2009 28 and circumstances, I find it just and proper to set aside the Award passed by the Tribunal and the Tribunal shall give an opportunity to adduce further evidence, if any, from either side, and thereafter dispose the claim petition within a period of three months from the date of receipt of certified copy of this judgment in the light of discussions made above. Both parties are directed to appear before the Tribunal on 04.07.2022. In the result, the Appeal allowed. The Award passed by the Tribunal is set aside and the case is remanded to the Tribunal for fresh disposal. (sd/-) **M.R.ANITHA, JUDGE** jsr/14/06/2022 True Copy P.S. To Judge