IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1209 of 2008()
1. FATHIMA, W/O.AHAMADUNNI,
... Petitioner
Vs
1. T.NARAYANAN, S/O.KUMARAN,
... Respondent
2. RAJENDRAN, S/O.KUMARAN,
3. THE NEW INDIA ASSURANCE COMPANY LIMITED,
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :SRI.P.JAYASANKAR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :02/12/2008
O R D E R
M.N.KRISHNAN, J
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MACA Nos.1209 & 1239 OF 2008
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Dated this the 2nd day of December 2008
JUDGMENT
These appeals are preferred against the award of the Motor Accidents
Claims Tribunal, Ottappalam in O.P.(MV)Nos.1066 & 1068 of 2005. The
claimants were passengers in an autorickshaw which met with an accident
when it collided with a bus resulting in sustainment of injuries to them.
Claimants did not adduce any oral evidence before the Tribunal and the
Tribunal on the basis of the scene mahazar found the autorickshaw driver
negligent and dismissed the cases. It is against that decision, the present
appeals are preferred by the claimants.
2. Heard the counsel for the appellants as well as the counsel for the
insurance company. Learned counsel for the appellants would contend that
the Tribunal was not fully justified in relying upon the recitals in the scene
mahazar alone to arrive at a decision that the autorickshaw driver was
totally negligent. He would also contend that on the basis of the scene
mahazar and other evidence available, the police has charge sheeted the
driver of the bus and that has not been considered at all by the Tribunal. A
MACA 1209 & 1239/2008 -:2:-
perusal of the scene mahazar prima facie would indicate that there is
negligence on the part of the autorickshaw driver. The road was having a
width of 3.70 metres. The accident had taken place 25 cms. east of the
western tar end. The bus was proceeding from south to north and the
autorickshaw from the opposite direction. Prima facie the place of accident
would indicate that the autorickshaw has transgressed to the wrong side at
the time of accident. It has always to be remembered that when an accident
is about to take place, that too, on a curve of the road, normally there will be
a tendency for the drivers of the vehicles to swerve the vehicles to avert the
accident. Then the position of the vehicles immediately after the accident
may not be a conclusive factor to find out how the accident took place. This
can be explained by adducing evidence in the matter. Further, the claimants
should not be deprived of any compensation as they have not contributed
anything to the accident and they can also be given an opportunity to
implead the driver, owner and the insurance company of the autorickshaw
so that the matter can be decided with all on record. Therefore the award
under challenge is set aside and the matter is remitted back to the Tribunal
with a direction to permit the claimants to amend the application by
impleadment, if they choose to do so and also to adduce both documentary
as well as oral evidence in support of their respective contentions and then
MACA 1209 & 1239/2008 -:3:-
dispose of the matter in accordance with law. Parties are directed to appear
before the Tribunal on 5.1.2009.
MACAs are disposed of as above.
M.N.KRISHNAN, JUDGE
Cdp/-