IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 MFA.No. 957 of 2001() --------------------- OPMV.2304/1991 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANTS/PETITIONERS: ----------- 1.THANKAPPAN PILLAI JANARDHANAN PILLAI, AGED 43 YEARS, KALLUVILA PADINJATTETHIL VEEDU, ADICHANALLOOR, KOLLAM. 2.THANKAPPAN PILLAI SASIDHARAN PILLAI, KALLUVILA PADINJATTETHIL VEEDU, ADICHANALLOOR, KOLLAM. 3.THANKAPPAN PILLAI SUDHARMA AMMA, KALLUVILA PADINJATTETHIL VEEDU, ADICHANALLOOR, KOLLAM. 4.THANKAPPAN PILLAI RADHAKRISHNA PILLAI, KALLUVILA PADINJATTETHIL VEEDU, ADICHANALLOOR, KOLLAM. BY ADV. SRI.C.C.THOMAS SMT.T.NISHA SRI.NIRESH MATHEW RESPONDENTS/RESPONDENTS: ------------- 1.APPUKUTTAN NAIR,PROPRIETOR, MAHADEVAN AUTOMOBILES & OWNER OF KHAN BROTHERS, K.R.T.NO.2410, ATTINGAL. 2.S.SREEKUMAR,CHERUKULATHU VEEDU, THATTAMALA, KOLLAM. 3.THE MANAGER,NEW INDIA ASSURANCE CO. LTD., ATTINGAL. 4.INDIRA BABY,DAMU VILLA, MAYYANAD P.O., KOLLAM. 5.GOPALAN,C/O.INDIRA BABY, DAMU VILLA, DAMU VILLA, MAYYANAD P.O., KOLLAM. BY ADV. SRI.MATHEW JOHN (K) FOR R4 SRI.BABY THOMAS FOR R4 SRI.KKM.SHERIF FOR R3 SMT.K.A.ANGEL TREENA THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ------------------------------- M.F.A.NO.957 OF 2001 (D) ----------------------------------- Dated this the 29th day of January, 2008 J U D G M E N T KOSHY,J. This appeal is filed by the claimants in O.P.(MV). No.2304/1991 on the file of Motor Accidents Claims Tribunal, Kollam. One Ratnamma died on 24.2.1991 at about 5 p.m. The case of the claimants was that, while the deceased along with her daughter, son and grandson were going to the temple to see the festival through public road. There was a big procession coming from the temple accompanying by seven elephants. At that time, a stage carriage bus bearing registration No.KRT-2410 coming with excessive speed hit the elephant and suddenly the elephant being disturbed became violent and turned backwards after throwing away his mahout and caught hold of the deceased and thrust upon the body as a result of which deceased got fatal injuries. The procession was disturbed and the people ran away. Deceased was later taken to the hospital. But on the way, she died. It is held that the MFA.957/2001 2 entire accident caused due to the negligence of the 2nd respondent driver of the bus and the above bus was owned by the 1st respondent which was insured by the 3rd respondent Insurance company. These facts were proved by the evidence of PWs.1 and 2. Ext.A1 FIR shows how injuries occurred to the deceased by the elephant and Ext.A3 is the FIR regarding the rash and negligent driving of the 2nd respondent and hitting of the bus on the elephant. A reading of the above will show that elephant turned violent only because of the hit by the bus. Tribunal found that bus hit the elephant but did not award any compensation, as there is no direct evidence to show that only because of the hitting of the bus, elephant attacked. Having found that elephant was hit by the bus due to rash and negligent driving of the driver and consequently it turned violent and incident occurred is admitted. Therefore, it cannot be stated that the accident has no relation to the use of the vehicle. We also note that driver of the bus was found guilty and he was punished. In the above circumstances, we are of the view that incident occurred only due to the negligent driving of the bus insured by the Insurance company and MFA.957/2001 3 Insurance company is liable to pay compensation. Coverge of insurance is not disputed. Then the question is regarding the quantum of compensation. Nothing was stated by the tribunal regarding the quantum of compensation. Therefore, we remand the matter to the tribunal for fixing the quantum of compensation. Parties may appear before the tribunal on 25.3.2008. Parties are free to adduce sufficient evidence regarding the quantum of compensation. With the above observations, this appeal is remanded. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- M.F.A.NO.957 OF 2001 (D) --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 29th January, 2008