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2024 DIGILAW 40 (KER)

Yamuna M. S. v. Krishnakumar

2024-01-09

ZIYAD RAHMAN A.A.

body2024
JUDGMENT : (ZIYAD RAHMAN A.A., J.) All these appeals arise from a common award dated 30.11.2010 in O.P.(MV) Nos. 562 of 2004, 227 of 2004, and 630 of 2004 on the files of the Motor Accidents Claims Tribunal, Alappuzha. The respective claim petitions were submitted by the respective claimants seeking compensation for the injuries sustained to them in a motor accident on 22.08.223. 2. According to them, the accident occurred when the Motor cycle ridden by the petitioner in O.P.(MV) No. 227/2004, carrying his wife and child, who are petitioners in O.P.(MV) No. 562/2004 and O.P.(MV) No. 630/2004 respectively, it was hit by another motorcycle bearing registration No. KL-4/G-686 ridden by the 1st respondent, owned by the 2nd respondent and insured with the 3rd respondent. The claim petitions were submitted in such circumstances. 3. The 3rd respondent filed a written statement admitting the insurance policy for the motorcycle that hit the claimant's vehicle. However, they disputed the negligence as well as the quantum of compensation. 4. The evidence in these cases consists of oral testimonies of PWs 1 to 3 and documentary evidence as Exts.A1 to A14 from the side of the claimants. After the trial, the Tribunal came to the conclusion that the claimants could not establish the negligence of the 1st respondent in riding the motorcycle. Accordingly, the claim petitions were dismissed. These appeals were submitted challenging the order dismissing the respective claim petitions. 5. Heard Sri. P.C. Suresh Menon, the learned counsel appearing for the appellant, Smt. Raji T. Baskar, learned counsel appearing for the 2 nd respondent in M.A.C.A Nos. 1822 of 2011 and 1718 of 2011, Smt. Deepa George, learned counsel appearing for the 2 nd respondent in M.A.C.A. No. 1672 of 2011. 6. The learned counsel for the appellants contends that the finding of the Tribunal, to the effect that the appellants failed to establish the negligence on the part of the respondents, is erroneous. 7. On the other hand, the learned counsel appearing for the 2 nd respondent-insurance company would point out that, there are absolutely no materials to establish the negligence on the part of the 1 st respondent and hence, no interference is necessarry. 8. I have carefully gone through the records. The police registered Ext.A14 FIR in connection with the incident, and after investigation, they filed Ext.A13 final report referring the case. 8. I have carefully gone through the records. The police registered Ext.A14 FIR in connection with the incident, and after investigation, they filed Ext.A13 final report referring the case. The claimants examined PWs 1 to 3 to substantiate the negligence on the part of the 2 nd respondent. PW1 is the petitioner in O.P(M.V) No.227/2004, who was riding the motorcycle along with the other claimants. PW2 is the pillion rider and the petitioner in O.P(M.V) No.562/2004 and PW3 is an independent witness. On carefully going through the depositions of PW1 and PW2, it can be seen that even though in their proof affidavits the manner in which the accident occurred has been mentioned in detail, their version of the accident was not seriously challenged when they were cross- examined by the respondents. As far as the cross-examination of the PW1 is concerned, it was confined to the refer report submitted by the police. In the cross-examination of PW1, not even a suggestion was put to him highlighting any falsity in the narration of the accident he made in the chief examination. Regarding the cross-examination of PW2, it is to be noted that, apart from a suggestion that the accident did not occur and no injuries were sustained to her, no other questions were asked. PW3 was an independent witness. In chief examination, he also clearly described the manner in which the accident occurred. However, his cross- examination was confined to the question of whether the police called him to record his statement and whether he was a witness in the complaint submitted by the petitioner in O.P(MV) No.227/2004. Here also, the version of the accident he narrated in the chief examination was not challenged. 9. Of course, it is true that the evidence of PW1 and PW2 could be treated as interested versions, but in the absence of any challenge against their version, their evidence cannot be discarded in its entirety. The manner of the accident, as described by PWs 1 and 2, was fortified by the deposition of PW3 as well, and his version was also not challenged in the cross-examination. As far as the method of appreciation of evidence in a claim under 166 of the Motor Vehicles Act is concerned, what is relevant is only the preponderance of probabilities. Therefore, the evaluation of the evidence has to be made by keeping that aspect in mind. As far as the method of appreciation of evidence in a claim under 166 of the Motor Vehicles Act is concerned, what is relevant is only the preponderance of probabilities. Therefore, the evaluation of the evidence has to be made by keeping that aspect in mind. This is particularly because this is welfare legislation that intends to protect the interest of the victim. When the evidence is analysed with that perspective, I am of the view that the evidence adduced by the claimants in the form of PWs 1 to 3 cannot be ignored. 10. In such circumstances, the contention of the appellants/claimants with regard to the negligence has to be accepted. Thus, from the available materials, the only conclusion possible is that the accident occurred due to the negligence on the part of the 1 st respondent, the rider of the motorcycle bearing registration No KL 4 -/G-686. As the 3rd respondent admits the coverage of the policy, the liability of the 1 st and 2 nd respondent has to be indemnified by them. However, since the Tribunal did not determine the quantum of compensation, the matter has to be remanded back to assess the compensation. In the light of the aforesaid findings, these appeals are allowed, and the common award dated 30.11.2010 passed by the Motor Accidents Claims Tribunal, Alappuzha in O.P(M.V) Nos.227/2004, 562/2004 and 630/2004 are hereby set aside. It is held that the accident occurred due to the sole negligence of the 1st respondent; therefore, all the respondents are jointly and severally liable. Being the insurer of the said vehicle, the 3rd respondent shall deposit the quantum of compensation to be determined by the Tribunal. The matter is remitted back to the Tribunal to assess the compensation. The appellants, as well as the respondents, shall be at liberty to adduce such further evidence to substantiate their respective contentions, and the Tribunal shall decide on the quantum of compensation after evaluating the materials so adduced by them. The parties shall appear before the Tribunal on 06.02.2024. However, it is clarified that, as the appeals were submitted with a delay of 122 days, if any amounts are awarded in the claim petitions, the appellants/claimants shall not be entitled to interest on the said amount for the said period.