Kerala High Court
G.Sasi vs The Managing Director
Author: C.K.Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
FRIDAY, THE 1ST DAY OF DECEMBER 2017/10TH AGRAHAYANA, 1939
MACA.No. 1598 of 2017 ()
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(AGAINST THE AWARD DATED 30-09-2013 IN OPMV 1251/2004 of
M.A.C.T., ATTINGAL)
APPELLANT/APPLICANT.:
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G.SASI
S/O. JOSEPH, AGED 61 YEARS,
REVATHY, CHAYKKARAKONAM, VETTINADU,
VATTAPPARA P.O., THIRUVANANTHAPURAM.
BY ADVS.SRI.O.D.SIVADAS
SRI.K.P.RAJEEVAN
RESPONDENTS/RESPONDENTS:
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1. THE MANAGING DIRECTOR,
KERALA STATE ROAD TRANSPORT CORPORATION,
TRANSPORT BHAVAN, FORT,
THIRUVANANTHAPURAM, PIN. 695023.
2. SURENDRAN NAIR,
S/O KUNJUKRISHNA PILLAI,
JAYA NIVAS, PANTHAPLAVU, VATTAPPARA PO,
THIRUVANANTHAPURAM. 695028.
R1 BY ADV. SRI.P.C.CHACKO, SC, KSRTC.
R2 BY ADV. SRI.P.C.CHACKO (PARATHANAM)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 01-12-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
AMG
C.K. ABDUL REHIM, J.
&
K.P. JYOTHINDRANATH, J.
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M.A.C.A No. 1598 OF 2017
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DATED THIS THE 1st DAY OF DECEMBER, 2017
J U D G M E N T
Abdul Rehim, J:
The applicant/claimant before the Motor Accidents Claims Tribunal, Attingal in OP (MV) No.1251/2004 is the appellant herein, challenging the award to the extent it dismissed the claim petition. Adv. P.C. Chacko, learned Standing Counsel appearing for the 1st respondent, entered appearance. Having considered the fact that the 1st respondent was contesting the matter before the Tribunal even on behalf of the 2nd respondent and in view of the order proposed in this appeal, we are not issuing notice to the 2nd respondent.
2. Heard; counsel for the appellant and Standing Counsel appearing for the 1st respondent. The accident in question occurred on 08-07-2004. According to the appellant he was riding on a motor cycle through MACA No.1598/2017 -2- Vattappara-Vembayam public road and at the spot of the accident a KSRTC stage carriage which was proceeding in front at a tremendous speed applied brake abruptly, thereby causing the motor cycle to hit on the rear of the bus, which resulted in causing serious injuries to the appellant. In proof of the accident the claimant had produced the records relating to the criminal case registered by the police. Ext.A1 is the copy of the F.I.R registered at Vattappara Police Station. Exhibit A5 is the copy of the draft charge sheet. The above said documents would indicate that the police had registered a case against the 2nd respondent, who was the driver of the bus, and chargesheeted him for offences punishable under Section 279, 337 and 338 of IPC. But the Tribunal relying on the decision of this court in Prasanna V. KSRTC (2008 (4) KLT 953), held that, "if a vehicle is seen to have hit against another vehicle moving in its front, or ahead, indeed its driver had applied sudden brake, the driver of the vehicle moving ahead, or in front of the vehicle coming behind, MACA No.1598/2017 -3- cannot be found to have been rash and negligent in having caused the accident." The Tribunal found that the appellant alone was negligent because he had driven the motor cycle in a rash and negligent manner and cause the same to hit on the back side of the KSRTC bus. Accordingly the claim petition was dismissed holding that the appellant have not succeeded in proving the case that he sustained bodily injuries being involved in road traffic accident whereof the vehicle in question were collided each other.
3. Learned counsel for the appellant contended that, the findings of the Tribunal had no basis on the materials on record and on the evidence available. Reliance was placed on the decision of a Division Bench of this court in New India Assurance Co. Ltd. V. Pazhaniammal (2011 (3) KLT 648) wherein it is held that, production of police chargesheet is prima facie sufficient evidence to prove the negligence for the purpose of a claim under Section 166 of the Motor Vehicles Act. According to learned counsel, the appellant had discharged the prima facie burden of proving MACA No.1598/2017 -4- the negligence on the part of the driver of the bus and the said evidence remains unrebutted since no contra evidence was adduced from the side of the respondents. It is further contended that, the Tribunal had failed in appreciating the fact that the accident was caused only due to the abrupt braking of the bus which was being driven in a tremendous speed.
4. Question whether the claimant was successful in proving the negligence, needs to be evaluated based on the evidence available on record. On a perusal of the impugned award, we notice that the Tribunal, without properly appreciating the evidence, had dismissed the claim based on the presumption that the appellant himself was solely negligent in hitting the motor cycle from behind of the bus. We are of the considered opinion that, there was no proper appreciation of the evidence on record. Therefore the Tribunal has to make a proper appreciation and should take an appropriate conclusion on the aspect of negligence. Even the Tribunal can look into the question as to whether there MACA No.1598/2017 -5- was any contribution of negligence on the part of the appellant. We are of the opinion that a remand of the matter for taking a fresh decision on the above said aspect would suffice to meet the ends of justice.
5. Hence the above appeal is hereby allowed. The impugned award passed by the Tribunal is hereby set aside. The MACT, Attingal is directed to restore OP (MV) No.1251/2004 on its files and to dispose of the same afresh, taking into consideration of the evidence available on record. It is will be left open to the Tribunal to permit the parties to adduce further evidence, if any.
6. Considering the fact that the claim is of the year 2004 the Tribunal shall take all earnest endeavour to dispose of the matter at the earliest possible, at any rate, within a period of 3 months from the date of appearance of the parties.
7. The parties shall appear before the Tribunal on 20-12-2017.
MACA No.1598/2017 -6-
8. We make it clear that we have not entered upon any findings with respect to the aspect of negligence and the Tribunal shall take an independent decision based on the evidence available, untrammelled by any of the observations contained herein above.
Sd/-
C.K. ABDUL REHIM, JUDGE.
Sd/-
K.P. JYOTHINDRANATH, JUDGE.
AMG True copy P.A. to Judge