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2025 DIGILAW 2120 (KER)

Ramesan O. K. S/o Kumaran v. Selvi Joseph

2025-07-31

SHOBA ANNAMMA EAPEN

body2025
JUDGMENT : SHOBA ANNAMMA EAPEN, J. 1. This appeal is filed by the claimant in O.P.(MV) No.539 of 2010 on the files of the Motor Accidents Claims Tribunal, Muvattupuzha, challenging the dismissal of the award dated 22.04.2014 passed by the tribunal. The respondents herein were the respondents before the Tribunal. 2. According to the appellant/claimant, on 05.02.2010, at about 4.30 p.m., while the claimant was driving a car bearing registration No.KL-44/677 through Kothamangalam – Muvattupuzha road, a private bus bearing registration No.KL-17/E- 8964 driven by the second respondent in a rash and negligent manner, hit against the car and as a result, he sustained serious injuries. The appellant approached the Tribunal claiming a total compensation of Rs. 2,50,000/-. 3. The first, second and third respondents were the owner, driver and the insurer of the offending vehicle respectively. Though notice was issued to the respondents, the first and second respondents remained absent and were set ex parte before the tribunal. The third respondent – insurer filed a written statement, contending that the accident was solely due to negligence on the part of the petitioner who was driving the car in violation and in breach of statutory requirements. Before the Tribunal, Exts.A1 to A11 and B1 to B3 were marked. Pws.1 and 2 were also examined. The Tribunal, after analysing the pleadings and materials on record, dismissed the petition finding that the accident occurred due to the negligence on the part of the claimant himself and held the respondents cannot be held liable for the injuries sustained on account of the accident. Challenging the dismissal of the original petition, the claimant has come up in appeal. 4. Heard Sri. T.K. Koshy, the learned counsel for the appellant and Sri. A.R.George, the learned Standing Counsel for the respondent – insurance company. 5. The learned counsel for the appellant submitted that the appellant while driving the car on the correct side through Kothamangalam – Muvattupuzha road, the private bus which came from the opposite direction, driven in a rash and negligent manner, violating the traffic rules, hit the car and as a result of the accident, the appellant sustained serious injuries. The appellant further submitted that all necessary documents relating to the accident, the details of the injuries sustained and the treatment undergone were duly produced before the Tribunal. The appellant further submitted that all necessary documents relating to the accident, the details of the injuries sustained and the treatment undergone were duly produced before the Tribunal. The evidence of witnesses as well as the evidence of the appellant/claimant were also adduced before the Tribunal. However, the Tribunal found fault with the appellant for not producing the final report and the scene mahazar. The learned counsel for the appellant further submitted that the witness, who was examined as PW1, was found by the tribunal as trustworthy and also the testimony of the PW2 appellant, that the accident occurred on the correct side, was also disbelieved by the Tribunal. Immediately after the accident, at the time of admission to the hospital, the appellant was in an unconscious state and, therefore, was not in a position to give a First Information Statement (FIS) to the police. Moreover, the counsel argued that the dismissal of the claim petition by the Tribunal relying on scene mahazar, is also legally unsustainable. It is also submitted that the respondents have not adduced any evidence and in such circumstances the evidence of PW1 and PW2 ought to have been accepted by the Tribunal. The learned counsel also argued that Ext.B1 final report is not the conclusive evidence to prove that there was negligence on the part of the appellant in driving the car. While he was examined as PW2, he had clearly testified that against Ext.B1 final report, he had preferred a complaint before the Deputy Superintendent of Police, Muvattupuzha. The learned counsel for the appellant submitted that the Tribunal, without properly considering the oral and documentary evidence, had dismissed the original petition, without proper application of mind. Hence, he sought one more opportunity to prove his case before the tribunal. 6. Per contra, the learned Standing Counsel appearing for the insurance company contended that the appellant did not produce the final report or adduce any satisfactory evidence to prove that there was negligence on the part of the driver of the bus. However, it was further contended that the appellant had not challenged the Ext.B1 final report submitted by the police and that the report has become final. However, it was further contended that the appellant had not challenged the Ext.B1 final report submitted by the police and that the report has become final. In the report, it was specifically stated by the investigating officer that the case put forward by the appellant herein was a false one and hence there is no justification to interfere with the order passed by the Tribunal. 7. I have considered the rival contentions raised by both sides. 8. The accident dated 05.02.2010 at 4.30 p.m., is not denied by both parties. The case of the appellant is that he was driving his car on the correct side of the road, and that the accident occurred solely due to the rash and negligent driving of the bus driver. The appellant relied on Ext.A1 - FIR and the treatment records produced, to prove that he sustained injuries in the accident which occurred on 05.02.2010. Ext.A1 - FIR was registered on the basis of Ext.A6 complaint, which was forwarded by the Judicial First Class Magistrate Court – Muvattupuzha under Section 156(3) of Cr.P.C. The petitioner did not produce the scene mahazar nor the final report in the afore case. It is the insurer who had produced the final report, the scene mahazar and the copy of the policy as Exts.B1 to B3. In Ext.B1 final report, it is found that the car was driven by the appellant in a rash and negligent manner and at an excessive speed through the wrong side and hit against the bus, which was going through the correct side of the road. It is true that the appellant had examined PW1, who was a witness to prove the incident. He was running a shop by the name “Arabian Parda Shop” near the place of accident. In the proof affidavit, PW1 had stated as follows: 9. PW1 stated that the accident occurred in front of his shop on 05.02.2010 at 4.30 p.m., and the accident was due to the rash and negligent driving of the bus. 10. During cross examination, he had testified as follows: 11. As per Ext.B2 scene mahazar, the accident is described as follows: 12. In the scene mahazar, it is specifically stated that the width of the road was 6.90 metre and the accident spot was 2 metre from the northern side towards south. 10. During cross examination, he had testified as follows: 11. As per Ext.B2 scene mahazar, the accident is described as follows: 12. In the scene mahazar, it is specifically stated that the width of the road was 6.90 metre and the accident spot was 2 metre from the northern side towards south. Hence as per Ext.B2 scene mahazar, the spot of accident was on the correct side of the bus. However, PW1 had testified that the accident occurred on the opposite side of the shop, at a distance of approximately 10 metres from the shop. In the scene mahazar, it is stated that the accident occurred on the point from 9.30 metres on the south-eastern side of the parda shop and 2 metres from the northern tar end towards south. As per scene mahazar, the accident spot is not on the opposite side of the shop but on the same side of the shop. The appellant has further testified that the bus was lying on the northern side. If the car was being driven by the appellant/claimant on the correct side, and as per the testimony of PW1, the accident occurred when the bus was overtaking an autorickshaw, then the bus which was moving from west to east, would necessarily have been on the southern side of the road, and not on the northern side, where the accident is alleged to have taken place. The Tribunal had found that PW1 is not a trustworthy witness. Even going by the deposition of PW1, it is clear that he has taken a different stand in the proof affidavit as well as during the cross examination. Hence, I find that the evidence of PW1 cannot be relied upon. 13. PW2, who is the appellant herein has also testified that he was driving through the correct side of the road at the time of accident. However, Ext.B1, final report was filed by the police referring it as a false case. The appellant could have filed a protest complaint against the refer report but did not do so. Though he deposed that he had submitted a complaint before the Deputy Superintendent of Police, no copy has been produced either before the Tribunal or before this Court to prove the same. 14. The appellant could have filed a protest complaint against the refer report but did not do so. Though he deposed that he had submitted a complaint before the Deputy Superintendent of Police, no copy has been produced either before the Tribunal or before this Court to prove the same. 14. Considering the evidence on record, it is clear that the accident occurred on the northern side of the road, which was the wrong side of the appellant/claimant. In view of the fact that the police submitted the final report treating the case as a false one, I find no reason to interfere with the finding of the Tribunal. The Tribunal has rightly dismissed the claim petition, holding that the accident occurred due to the rash and negligent driving of the car by the appellant. The appellant had failed to substantiate his case that the accident occurred due to the negligence on the part of the bus driver. Though the learned counsel for the appellant sought a remand of the case, I find that sufficient opportunity was granted to the claimant, by the tribunal, to adduce evidence. Considering the afore facts, I do not find any reason to interfere with the order passed by the Tribunal. Accordingly, the appeal stands dismissed.