Rajam v. The Managing Director, Kerala State Road Transport Corporation, and Sasidharan Pillai

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 25[TH] DAY OF AUGUST 2022 / 3RD BHADRA, 1944** **MACA NO. 357 OF 2014** **AGAINST THE AWARD DATED 21.12.2013 IN OP(MV) No.232/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA APPELLANT/APPLICANT:** RAJAM, AGED 44 YEARS, D/O.KAMALAM, RESIDING AT PANTHAVILA PUTHEN VEEDU, PERUMPAZHUTHOOR VILLAGE, NEYYATINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.R.NIKHIL SRI.P.ABDUL RAZAK ## **RESPONDENTS/RESPONDENTS:** 1 THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM - 695 001. 2 SASIDHARAN PILLAI, S/O.GOPALA PILLAI, SASI BHAVAN, ERUVA MURI, PATHIYOOR VILLAGE, KAYAMKULAM - 690 572. BY ADVS. SRI SREEPRAKASH K NAIR (BY ORDER) SRI.P.C.CHACKO, SC, KSRTC SRI.ALEX ANTONY SEBASTIAN P.A., SC, KSRTC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.357 of 2014** 2 ## **JUDGMENT** This is an appeal filed under Section 173 of the Motor Vehicles Act, challenging award dated 21.12.2013 in O.P.(M.V) No.232/2006 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara, at the instance of the petitioner. The respondents 1 and 2 before the Tribunal are the respondents herein. 2. Heard the learned counsel for the appellant as well as Sri.Alex Antony Sebastian P.A., learned Standing Counsel for KSRTC. 3. Brief facts of the case: **==> picture [380 x 13] intentionally omitted <==** 21.04.1996 at about 2:45 p.m., while the appellant was travelling as a passenger in a KSRTC bus bearing registration No.KL-15- 1052[TA-18] through Kollam-Thiruvananthapuram road, driven by the 2[nd] respondent, in a rash and negligent manner, the bus dashed against a **M.A.C.A No.357 of 2014** 3 private bus bearing registration No.KL-Z-1369 and, consequently, the appellant sustained very serious injuries. He was immediately taken to Holy Cross Hospital, Kottiyam and from there he was taken to Medical College Hospital, Thiruvananthapuram and treated there as inpatient. But she became permanently disabled due to the accident. 1[st] respondent is the owner of the vehicle. On the above facts, an application under Section 166 of the Motor Vehicles act was preferred by the appellant before the M.A.C.T, Neyyattinkara claiming compensation to the tune of Rs.1,50,000/- from respondents 1 and 2. 4. The 1[st] and 2[nd] respondents jointly filed written statement and resisted the claim. Negligence alleged on the part of 2[nd] respondent was denied, while disputing compensation under the various heads. 5. The Tribunal adjudicated the matter after marking Exts.A1 to A8(b) on the part of ## **M.A.C.A No.357 of 2014** 4 the appellant. No evidence let in on the side of the respondents. 6. The Tribunal dismissed the claim petition on the ground that the police charge not produced to prove negligence alleged against the 2[nd] respondent. The Tribunal also found that as per the narration in Ext.A3, Scene Mahazar the other private bus involved in the accident was on the wrong side and, therefore, the accident was contributed by the other private bus. 7. While assailing the verdict of the Tribunal, the learned counsel for the appellant submitted that since the appellant filed this petition, only in the year 2006 in relation to an occurrence during the year 1996, police charge was not produced before the Tribunal. However, the appellant produced Ext.A8 series, three numbers of award passed in the same accident, whereby the travellers in the KSRTC bus sustained injuries and the Tribunal failed **M.A.C.A No.357 of 2014** 5 to consider the said awards. It is pointed out that since three awards finding negligence on the part of the KSRTC driver were produced before the Tribunal, the Tribunal is not justified in dismissing the claim application for non-production of police charge and by giving emphasis to the narration Ext.A3, Scene Mahazar to find negligence against other bus involved in the accident. 8. Controverting this argument, the learned Standing Counsel for the KSRTC would submit that following the ratio in _**New India**_ _**Assurance Co. Ltd v. Pazhaniammal**_ **: 2011 (3) KLT 648,** at least police charge should have been produced to prove negligence. He also supported Scene Mahazar, while canvassing the position that the accident is the outcome of negligence on the part of the other bus involved in the accident. 9. In order to alleviate the rival ## **M.A.C.A No.357 of 2014** 6 contention put forth, I have perused Ext.A8 series award. Ext.A8 is the copy of the award in O.P.(M.V) No.1065/1997 dated 21.07.2001, wherein the Tribunal found negligence on the part of 2[nd] respondent. Similarly, as per Ext.A8(a), the award in O.P.(M.V) No.1026/1997 dated 12.07.2001 and Ext.A8(b), award in O.P. (M.V) No.1083/1997 dated 20.09.2002 also, in similar way the Tribunal found negligence on the part of the 2[nd] respondent. It appears that no challenge raised by the KSRTC to dispute the finding of negligence in Ext.A8 series. Therefore, the Tribunal went wrong in dismissing the claim petition for want of proof of negligence merely for non-production of copy of police charge and by giving emphasis to Ext.A3 Scene Mahazar. Therefore, the finding of negligence entered into by the Tribunal stands set aside and it is held that the accident is the contribution of negligence on the part of the 2[nd] respondent, as found in Ext.A8 series. ## **M.A.C.A No.357 of 2014** 7 10. Though it is the duty of the Tribunal to decide the second issue regarding entitlement of compensation and the quantum thereof, in view of the mandate of Order XIV Rule 2 of Code of Civil Procedure, it was not done. However, in a case involving accident of the year 1996, remanding the matter for deciding the said issue cannot be justified and therefore, I am inclined to decide the quantum also, since the appellate court can decide an issue which was not decided by the Tribunal. 11. Ext.A5 is the copy of wound certificate showing lacerated injury (L) forearm in relation to the appellant. Ext.A7 is the casualty card issued from Medical College Hospital, Thiruvananthapuram dated 23.04.1996, wherein both bone fracture of left forearm was diagnosed and treated. No inpatient treatment underwent by the appellant. The above injuries could be gathered from Ext.A6, O.P.Ticket as well. No medical bills produced in this case. ## **M.A.C.A No.357 of 2014** 8 12. The appellant claimed her income at Rs.3,000/- per month. Since the accident is of the year 1996, in the absence of proof, Rs.2,500/- is fixed as the monthly income. Considering the both bone fracture, I am inclined to grant 'loss of earnings' for a period of four months at the rate of Rs.2,500/per month and the same would come to **Rs.10,000/-** (2,500x4). 13. No disability certificate produced to prove any disability to the appellant.Considering both bone fracture and treatment thereof, **Rs.15,000/-** is granted towards 'pain and sufferings'. Apart from that, **Rs.500/-** is granted towards 'transportation'. **Rs.1,000/-** is granted towards medical expenses. **Rs.500/-** is granted towards damages to clothing. **Rs.2,000/-** is granted towards 'extra nourishment' and **Rs.10,000/-** is granted towards 'loss of amenities'. 9 ## **M.A.C.A No.357 of 2014** 14. In the result, this appeal is allowed. It is held that the appellant is entitled to get **Rs.39,000/-** (Rupees Thirty Nine Thousand Only) as compensation with 7.5% interest per annum, payable by the 1[st] and 2[nd] respondents jointly and severally. But the 1[st] respondent is liable to pay the same from the date of petition till the date of deposit or realisation. The 1[st] respondent is directed to deposit the amount in the name of the appellant within two months from today. On deposit, the appellant is entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.**