MACA.No.2497 of 2013 & MACA.No.1256 of 2013 (Common Judgment)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943** ## **MACA.No.2497 OF 2013** **AGAINST THE AWARD IN OPMV 26/2009 DATED 26-11-2012 OF ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANTS/PETITIONERS:** |**1**|**JAMUNA DEVI. J**| |---|---| ||**AGED 47 YEARS, W/O. LATE RAMESAN,**| ||**RAJANI NIVAS, 7/131, EROOR NORTH,**| ||**TRIPUNITHURA, NOW RESIDING AT ARA 108,**| ||**RAJESH BHAVAN, MUNDAKKAL EAST,**| ||**KOLLAM - 691 001.**| |**2**|**RAJANI,**| ||**AGED 27 YEARS, D/O. LATE RAMESAN,**| ||**RAJANI NIVAS, 7/131, EROOR NORTH,**| ||**TRIPUNITHURA, NOW RESIDING AT ARA 108,**| ||**RAJESH BHAVAN, MUNDAKKAL EAST,**| ||**KOLLAM - 691 001.**| |**3**|**RAJEESH R.**| ||**AGED 25 YEARS, S/O. LATE RAMESAN,**| ||**RAJANI NIVAS, 7/131, EROOR NORTH,**| ||**TRIPUNITHURA, NOW RESIDING AT ARA 108,**| ||**RAJESH BHAVAN, MUNDAKKAL EAST,**| ||**KOLLAM - 691 001.**| ||**BY ADVS.**| ||**SRI.R.SUDHISH**| ||**SMT.M.MANJU**| ||**SRI.K.R.RANJITH**| ## **RESPONDENTS/RESPONDENTS:** - **1 THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM.** - **2 SUDHARSHANAN, S/O. BHARATHAN, CHERUKARA HOUSE, KILIKOLLOOR P.O., KOLLAM.** - **3 NATIONAL INSURANCE COMPANY LIMITED, DIVISION NO. 10, FLAT NO. 101-106,** **MACA.No.2497 OF 2013 & Conn.Cases** **2** **N-1, B M C HOUSE, CONNOUGHT PLACE, NEW DELHI -1.** **R1 BY SRI.P.C.CHACKO, SC, KERALA STATE ROAD TRANSPORT CORPN. R1, R3 BY ADV. SRI.LAL K.JOSEPH R1 BY ADV. SRI.V.S.SHIRAZ BAVA R1 BY ADV. SRI.JOHN MATHEW, SC, KERALA STATE ROAD TRANSPORT CORPORATION R1 BY ADV. SRI.A.A.ZIYAD RAHMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.04.2021, ALONG WITH MACA.1256/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2497 OF 2013 & Conn.Cases** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943** **MACA.No.1256 OF 2013** **AGAINST THE AWARD IN OPMV 26/2009 DATED 26-11-2012 OF THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/1ST RESPONDENT:** **KERALA ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN, FORT P.O. TRIVANDRUM - 23** **BY ADVS. SRI.P.K.BEHANAN,SC,KSRTC SRI.P.C.CHACKO(PARATHANAM) SC, KERALA STATE ROAD TRANSPORT CORPORATION - KSRTC** ## **RESPONDENTS/PETITIONERS:** |**1**|**JAMUNA DEVI J**| |---|---| ||**AGED 43 YEARS**| ||**W/O LATE RAMESAN,**| ||**RAJANI NIVAS 7/131, EROOR NORTH**| ||**TRIPUNITHURA**| ||**PIN 682301**| |**2**|**RAJANI J**| ||**AGED 23 YEARS**| ||**D/O LATE RAMESAN**| ||**RAJANI NIVAS 7/131, EROOR NORTH**| ||**TRIPUNITHURA**| ||**PIN 682301**| |**3**|**RAJESH R**| ||**AGED 21 YEARS**| ||**S/O LATE RAMESAN**| ||**RAJANI NIVAS 7/131, EROOR NORTH**| ||**TRIPUNITHURA**| ||**PIN 682301**| |**4**|**NATIONAL INSURANCE COMPANY LTD**| ||**DIVISION NO 10, FLAT NO 101106,**| **MACA.No.2497 OF 2013 & Conn.Cases** **4** **N-1 BMC HOUSE, CONNOUGHT PALACE, NEW DELHI -1** **R1-3 BY ADV. SRI. K.R. RANJITH R1-3 BY ADV. SRI. R.SUDHISH R1 BY ADV. SRI.M. MANJU R4 BY ADV. SRI.A.R.GEORGE SRI.LAL.K.JOSEPH, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07.04.2021, ALONG WITH MACA.2497/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2497 OF 2013 & Conn.Cases** **5** ## **COMMON JUDGMENT** **[ MACA.2497/2013, MACA.1256/2013 ] Dated this the 7th day of April 2021** These two appeals are connected and therefore, I am disposing these two appeals by a common judgment. 2. MACA No.2497/2013 is filed by the petitioners in O.P.(MV)No.26/2009 on the file of the Additional Motor Accidents Claims Tribunal, Ernakulam. The first respondent in the above claim petition had filed MACA No.1256/2013. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal) 3. Short facts are like this:- On 09.03.2008 at about 2.00 p.m. while the deceased was driving a car bearing Reg.No. KL-7/BC 3860 from north to south through Thiruvananthapuram – Ernakulam National Highway road and when he reached at Kalavoor the offending bus bearing Reg No. KL-15/6604 driven by the 2[nd] respondent in a rash and negligent manner hit on the car and thereby deceased sustained serious injury. He was treated at Medical College **MACA.No.2497 OF 2013 & Conn.Cases** **6** Hospital, Alappuzha. He succumbed to the injuries. According to the petitioners the accident occurred due to the negligence of the 2[nd] respondent - bus driver. Therefore, the claim petition is filed for compensation from the respondents jointly and severally. 4. To substantiate the case Exts. A1 to A12 were marked on the side of the petitioners. Ext. X1 is the certificate issued from the Cochin Shipyard. Ext.B1 is the copy of the final report submitted by the police. Three witnesses were examined on the side of the petitioners as PW1, PW2 and PW3. The Tribunal after going through the evidence and the documents found that the accident occurred because of the rash and negligent driving by the 2[nd] respondent. Thereafter, the Tribunal fixed a compensation of Rs.15,48,392/-. 5. Aggrieved by the quantum of compensation the petitioners filed MACA No.2497/2013. The first respondent filed MACA No.1256/2013 challenging the finding that the accident occurred because of the rash and negligent driving by the 2[nd] respondent – driver of the KSRTC. 6. Heard the learned counsel for the petitioners and **MACA.No.2497 OF 2013 & Conn.Cases** **7** the learned counsel for the respondents. 7. The learned counsel for the 1[st] respondent submitted that the police registered a case in connection with this accident and the police referred the matter. Ext.B1 is the final report submitted by the police. Thereafter the Tribunal, simply relied the evidence of PW3 and concluded that the driver of the KSRTC bus is negligent. The counsel submitted that the finding of the Tribunal is not sustainable. The counsel for the petitioners supported the impugned award. The counsel also submitted that the quantum of compensation fixed by the Tribunal is too low. 8. Admittedly, a criminal case was registered in connection with the above accident. As per Ext.B1 final report the police found that the accident occurred not because of the negligence on the part of the 2[nd] respondent. The Tribunal relied the oral evidence adduced by PW3 to conclude that the accident occurred because of the negligence on the part of 2[nd] respondent. The finding of the Tribunal is extracted hereunder:- “ _9. Ext.A1 is the copy of FI statement and report which shows that crime was registered against the KSRTC driver. Ext.A2 is the scene mahazar locating_ **MACA.No.2497 OF 2013 & Conn.Cases** **8** _place of occurrence. A8 and 9 are motor vehicle inspector reports of bus and car. Ext.B1 is the copy of final report showing that case was referred by the police finding that car hit against the KSRTC Bus. Reason for hit is no where mentioned in Ext.B1. The investigation report filed by investigating officer cannot be treated for evidence for negligence. On the contrary, evidence of PW3 the passenger of KSRTC Bus who witnessed the accident shows that the accident was due to the negligence of KSRTC driver. Therefore, considering the evidence of PW3, I find that the accident was due to negligence to the 2[nd] respondent bus driver.”_ 9. I find no reason to interfere with that part of the award passed by the Tribunal. The Tribunal relied the evidence of PW3. There is no serious cross examination to the evidence adduced by PW3. The counsel for the 1[st] respondent submitted that he may be given a further opportunity to adduce further evidence. The counsel submitted that the final report of the police is in favour of the 2[nd] respondent, the court ought to have presume that the accident occurred because of the negligence on the part of driver of the car. The counsel relied on the judgment of this Court in _**Kolavan & Others v Salim & Others [2018(1) KLJ 733]**_ and in _**New Indian Insurance Company Ltd. v. Pazhaniammal [2011(3)KLT 648]** ._ It is true that in these decisions, this Court declared that the final report of the police is to be taken as _prima facie_ evidence to prove negligence. But that doesn't mean that the other party **MACA.No.2497 OF 2013 & Conn.Cases** **9** can't adduce further evidence to rebut the same. In this case the petitioners adduced evidence. The counsel for the 1[st] respondent submitted that, he want to adduce further evidence to rebut the evidence already adduced by the petitioners. In such circumstances, I think an opportunity can be given to the 1[st] respondent to adduce further evidence. The question regarding the enhancement of compensation is also left open. The petitioners also can adduce evidence for that purpose before the Tribunal. There can be a time limit also for disposing the claim petition. Therefore, these appeals are disposed of in the following manner:- (i) MACA Nos.1256/2013 and 2497/2013 are allowed. (ii) Award dated 26.11.2012 in O.P.(MV) No.26/2009 on the file of the Motor Accidents Claims Tribunal, Ernakulam is set aside and the Tribunal is directed to restore the claim petition. **MACA.No.2497 OF 2013 & Conn.Cases** **10** (iii) The Tribunal will allow the petitioners and respondents to adduce further oral and documentary evidence, if any. I make it clear that no _de novo_ trial is necessary. (iv) After giving opportunities to both sides, the Tribunal will pass appropriate orders in accordance with law, as expeditiously as possible, at any rate within a period of four months from the date of receipt of a copy of this judgment. (v) The parties shall appear before the Tribunal on 10.05.2021. **Sd/P.V.KUNHIKRISHNAN JUDGE** VPK