IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 MACA.No. 1588 of 2005 --------------------- (OP(MV).No.45/2001 of MACT, Muvattupuzha) APPELLANTS/PETITIONERS: ----------------------- 1. K.D. ANTONY, S/O. DAVID, AGED 54 YEARS, KULAKKATTNJALIL HOUSE, KIZHAKKUMBALAM KARA, KIZHAKKAMBALAM VILLAGE. 2. SARAMMA ANTONY, W/O. ANTONY, AGED 50 YEARS, KULAKKATTNJALIL HOUSE, KIZHAKKAMBALAM KARA, KIZHAKKAMBALAM VILLAGE. 3. SAIBY ANTONY, D/O. ANTONY, AGED 26 YEARS, KULAKKATTNJALIL HOUSE, KIZHAKKAMBALAM KARA, KIZHAKKAMBALAM VILLAGE. 4. SHANOJ ANTONY, S/O. ANTONY, AGED 19 YEARS, KULAKKATTNJALIL HOUSE, KIZHAKKAMBALAM KARA, KIZHAKKAMBALAM VILLAGE. BY ADV. SRI.P.K.VIJAYAN RESPONDENTS/RESPONDENTS: ----------------------- 1. SHAJU, S/O. KURIAKOSE, MADATHIPARAMBIL HOUSE, EDATHALA, ALUVA, (OWNER OF BUS KL.7M.5193). 2. BIJI PAUL, S/O. PAULOSE, MADATHIKUDY HOUSE, NARALLOOR KARA, KIZHAKKAMBALAM VILLAGE. (DRIVER OF BUS KL.7M.5193). 3. NATIONAL INSURANCE CO.LTD., KOLENCHERRY BRANCH, P.O.BOX.NO.6, MEDICAL MISSION JUNCTION, KOLENCHERRY-682 311. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer & P.Q. Barkath Ali, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 1588 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of July, 2010 Judgment Basheer, J: Having heard learned counsel for the appellants and the learned counsel for respondent No.3 and having perused the award impugned in this appeal, we have no hesitation to hold that the award is liable to be set aside for reasons more than one. 2. The Tribunal dismissed the claim petition holding that the accident did not take place as alleged by the claimants. However the materials which were produced before the Tribunal will unerringly show that the vehicle in which the deceased was travelling did hit against an electric post on the side of the road resulting in some fatal injuries on the deceased culminating in his death. 3. The Police had registered a crime against the driver of the offending vehicle. The Police records like Ext.A1 First Information Report, charge sheet (Ext.A2) and scene mahazar (Ext.A3) which were available before the Tribunal clearly revealed that the rear side of the bus had hit on the electric post. The witnesses who were questioned by the Investigating Officer also had spoken about the manner in which the accident had MACA.1588/2005.I : 2 : occurred. The report of the Assistant Motor Vehicles Inspector also shows that the rear side of the bus had suffered damage. Thus the case of the claimants that the deceased sustained injuries in the above accident while the bus hit against the electric post stood clearly substantiated. The Tribunal noticed that the charge sheet also revealed the deceased was standing in the bus on the rear side. The reasoning of the Tribunal that the deceased ought to have taken care to keep his head inside the bus may not have any significance or relevance because admittedly the rear side of the bus had sustained damage. In other words, if the mishap occurred only because the deceased put his head outside the bus, then no damage should have been caused to the bus. In short, the evidence adduced by the appellants clearly established that the deceased had succumbed to the injuries sustained by him in the motor accident in question. In that view of the matter, the finding entered by the Tribunal cannot be sustained at all. It is held that the accident occurred because of the negligence of the driver of the bus. 4. Therefore the impugned award is set aside. The case is remanded to the Tribunal to fix the quantum. The Tribunal shall afford sufficient opportunity to the appellants as well as the respondents to adduce further evidence in the matter, if they so MACA.1588/2005.I : 3 : choose. The Tribunal shall make an earnest endeavour to dispose of the case as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. 5. The parties shall appear before the Tribunal on August 10, 2010. 6. The appeal is disposed of in the above terms. The Registry shall send back the lower court records to the Tribunal forthwith. 1 A.K. Basheer Judge. P.Q. Barkath Ali Judge. an.