IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 512 of 2005()
1. SUNIL. T.K., AGED 25 YEARS,
... Petitioner
Vs
1. HEAD MASTER, ATHANASIUS COLLEGE
... Respondent
2. JIMMY JOHN, S/O. JOHN, NARCEMCHERRY
3. ORIENTIAL INSURANCE CO.LTD.,
For Petitioner :SRI.V.K.ISSAC
For Respondent :SRI.GEORGE JACOB (JOSE)
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :11/07/2008
O R D E R
M.N.KRISHNAN, J
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MACA Nos.512, 516 & 595 OF 2005
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Dated this the 11th day of July 2008
JUDGMENT
These appeals are preferred against the award of the Motor Accidents
Claims Tribunal, Perumbavoor in O.P.(MV)Nos.1147/98, 691/98 and
1316/98, which were disposed of by a common award. The Tribunal
dismissed all the applications. The brief facts necessary for the disposal of
the appeals are stated as follows: It is the case of the petitioners that there
was a collision between the car bearing Regn.No.KRF-2010 and a tempo
van bearing Regn.No.KL/7J/9138, as a result of which the car got damaged
and the passengers in the car sustained injuries. Respondents 1 and 2 in
these applications, viz., the owner and the driver of the school van did not
contest the case at all. It was only the 3rd respondent, who contested the
case disputing the factum of negligence. The Tribunal, on analysis held that
the negligence is not proved. Whether such a finding is proper in the light
of the materials available or whether the matter requires reconsideration is
the point to be considered by this Court at this stage. Admittedly two of the
persons, who were travelling in the car had been examined as PW1 and
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PW4. It is submitted that a police case was filed against the driver of the car
for the negligence and on a private complaint filed by the driver of the car a
case was registered against the driver of the tempo van. I am informed that
both the cases have ended in acquittal. The approach to cases under
Sections 279 and 338 is to affix the criminal negligence whereas in a motor
accident case, we are concerned really about the civil negligence. The
approach to both the cases are different for the reason that a criminal case
requires absolute proof whereas a civil case can be decided on the
preponderance and probability of the case. I had been taken through the
award by the learned counsel for the appellants. It is seen that Pws.1 and 4
have deposed about the negligence of the school van driver but the court is
not prepared to accept them for the reason only known to it. A question
was put in the cross examination whether any document has been produced
by the petitioner to prove the negligence of the tempo driver for which
PW1 answered positively but would contend that the tempo driver was
acquitted by the criminal court. As discussed by me earlier and it can be
seen that both the cases had ended in acquittal and in a motor accident case
the court has necessarily to find the negligence either composite or
contributory or absolute. So the method of approach has to be in that angle
which unfortunately the Tribunal below did not direct itself. If further
MACA 512/05 & con.cases -:3:-
evidence is necessary or documents are to be produced that can be done and
the matter can be re-appreciated and appropriate award be passed in
accordance with law.
Therefore the awards under challenge in all these cases are set aside
and the matters are remitted back to the Tribunal for fresh consideration
after affording an opportunity to the appellants in each case to produce both
documentary and oral evidence in support of their respective contentions
and also permission is granted to the insurance company to adduce evidence
in support of its contentions. Parties are directed to appear before the
Tribunal on 25.8.2008.
MACAs are disposed of as above.
M.N.KRISHNAN, JUDGE
Cdp/-