IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2023 of 2005()
1. MARIAKUTTY, W/O. SAIDALAVI,AGED 53 YEARS
... Petitioner
2. FATHIMA, W/O LATE HAMEED @ SHAHUL HAMEED
3. HASNA FERHAMATH, AGED 5, MINOR.
4. MUHAMMED @ MANU, AGED 30 YEARS.
5. AYSHA, 33 YEARS, W/O ISMAIL.
6. SUBAISA, 26 YEARS, W/O.HAMEED.
Vs
1. RAHIM M.K, S/O MUHAMED KUNJU,
... Respondent
2. RATHEESH KUMAR.A., SREE VISAK, IC 19/326
3. THE NATIONAL INSURANCE COMPANY LTD.,
For Respondent :SRI.N.S.MOHAMMED USMAN
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :01/11/2010
O R D E R
A.K. Basheer & P.Q. Barkath Ali, JJ.
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MACA.No. 2023 of 2005 – B
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Dated this the 1st day of November, 2010
Judgment
Basheer, J:
Legal heirs of deceased victim of a road traffic
accident have filed this appeal impugning the award passed
by the Motor Accidents Claims Tribunal.
2. The deceased was riding a two wheeler on the
ill-fated day. It appears that his two wheeler collided
against a lorry coming from the opposite direction. The
Claim Petition was initially laid under Section 166 of the
Motor Vehicles Act. But later the claim was converted as
one under Section 163A. However no other amendments
particularly with regard to the monthly income of the
deceased was carried out in the Claim Petition.
3. It is the case of the appellants that the deceased
was working in a Middle East country and earning
Rs.22,000/- per month. But when the Claim Petition was
converted as one under Section 163A, no suitable
amendment was sought for. The Tribunal dismissed the
Claim Petition as not maintainable since the monthly
income of the deceased exceeded Rs.4,000/-.
4. There is yet another aspect of the matter. As has
MACA.2023/05 : 2 :
been mentioned earlier, the accident occurred due to a head
on collision. It is on record that the Police charge sheeted
the driver of the lorry as well as the rider of the two
wheeler. Pw.2 was examined on the side of the claimants
and he spoke about the accident. However the lorry driver
never bothered to step into the box and deny the charge of
rash and negligent driving made against him. But still the
Tribunal proceeded to hold that deceased rider was entirely
responsible for the accident, ignoring the fact that the
Police had charge sheeted both the drivers. We are afraid
the approach made by the Tribunal is totally unwarranted,
especially in the absence of any contra evidence adduced by
the lorry driver. The Tribunal has of course referred to the
scene mahazar prepared by the Police. But that could not
have been the be-all and end-all in such matters.
5. A Division Bench of this Court in Phillippose
Cherian and anr. v. T.A.Edward Lobo & anr. (1991 ACJ
634) has observed thus:
“..In a scene mahazar it is usual to
contain two types of facts. Those
facts which were observed by the
MACA.2023/05 : 3 :
author with his own eyes and those
which he heard from others. The latter
category is hearsay and is hence
inadmissible except for certain limited
uses. An entry in scene mahazar which
relates to what the author has seen
with his own eyes is admissible as
direct evidence.”
We have referred to the conclusion made by the Tribunal
in order to highlight the fact that such an exercise has been
carried out by the Tribunal in the absence of any contra
evidence adduced by the driver and that too relying solely
on the scene mahazar. In our view, the Tribunal ought to
have been a little more circumspect and careful especially
on the face of the composite charge laid by the Police
against the two drivers. Anyway, we do not propose to
deal with the above issue any further, in view of the order
that we propose to pass.
6. Having heard learned counsel for the parties and
having perused the materials available on record, we are of
the view that the appellants have to be given a further
MACA.2023/05 : 4 :
opportunity to prosecute their case appropriately. It will be
open to the appellants to amend the pleadings, if so advised,
in which event the respondents shall also be entitled to
adduce further evidence, both oral and documentary.
7. Therefore the impugned award is set aside. The
case is remitted to the Tribunal for fresh disposal in
accordance with law.
Parties shall appear before the Tribunal on November
30, 2010.
A.K. Basheer
Judge.
P.Q. Barkath Ali
Judge.
an.