Shiju vs Joseph on 12 January, 2009

[Cites 3, Cited by 0]

Kerala High Court

Shiju vs Joseph on 12 January, 2009

Bench: M.N.Krishnan

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 1755 of 2006()


1. SHIJU, S/O.MATHEW,
                      ...  Petitioner

                        Vs



1. JOSEPH,
                       ...       Respondent

2. THE ORIENTAL INSURANCE COMPANY LTD.,

                For Petitioner  :SRI.K.K.CHANDRAN PILLAI

                For Respondent  :SRI.A.R.GEORGE

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :12/01/2009

 O R D E R
                         M.N. KRISHNAN, J
                         -----------------------
                    M.A.C.A.No. 1755 OF 2006
                    ---------------------------------
               Dated this the 12th day of January, 2009


                              JUDGMENT

This appeal is preferred against the award of the Motor Accident Claims Tribunal, Thodupuzha in O.P.(MV) No.934/96. It is the case of the claimant that on 27.9.96 while he was going from Vazhakkulam to Anchiri a branch of a tree standing on the road side fell on the top of the jeep causing damage to it and injuries to the petitioner. The tribunal held that negligence has not been proved and dismissed the application.

The learned counsel would submit that the doctrine of strict liability rendered in Rylands and another v. Fletcher (1868) LR 3 HL 330] is to be extended to this case. The facts of that case would reveal that there was perculation of water to the neighbouring coal field and it was held that the owner of the property is to enjoy his property without detrimentally affecting the right of others. So far as this case is concerned, the claimant was travelling in a jeep. A person was cutting a branch of tree. It fell on the jeep in which the claimant was travelling and resulting in injuries to him. How can one attribute negligence on the driver M.A.C.A.No. 1755 OF 2006 -2- when he was driving along the road? No person would dare enough to drive a vehicle under a tree if there is cutting of the branches. There is no evidence tendered by the tribunal as well to show that in spite of knowledge that a branch of tree was being cut, the driver moved the vehicle dangerously which resulted in the accident. If such a situation had arisen, certainly one can attribute negligence to the driver for taking lack of care and it is a settled principle that is the duty of the driver to take persons travelling in the vehicle safely to the destination. Here there is no evidence tendered in that regard and the only fact that is available is a branch of tree falling on the jeep that resulted in injuries. Had it been a case that had arisen out under Section 163 A of the Motor Vehicles Act, the mere use of the vehicle or the fact that injuries had been sustained on account of the use of the motor vehicle could have come to the rescue of the claimant. Yet another condition section under 163A is that there must be death or permanent disablement as contemplated under the Workmen's Compensation Act. So under Section 166 proceedings which is an extension of the tortious liability under the Civil law unless negligence is proved a claimant will not be eligible to get compensation and that is why the statutes M.A.C.A.No. 1755 OF 2006 -3- specifically provide carving out exemption under Section 140 or under Section 163A of the Motor Vehicles Act. But here the case was filed under Section 166 of Motor Vehicles Act and in the absence of proving of negligence one cannot hold the driver liable much less the owner vicariously liable and then directing the Insurance Company to pay the amount. The decision does not call for any interference.

Therefore the appeal lacks merit and the same is dismissed without costs.

M.N. KRISHNAN,JUDGE vkm

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