IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 MACA.No. 1849 of 2005() ----------------------- OPMV.271/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): APPELLANT/2ND RESPONDENT: --------------------------------------- THE MANAGING DIRECTOR, TAMIL NADU STATE TRANSPORT CORPORATION (COIMBATORE DIVISION-I)LTD. BY ADV. SRI.P.RAVINDRAN, SENIOR ADVOCATE SRI.V.G.SANKARAN RESPONDENT(S): PETITIONERS/1ST RESPONDENT --------------- 1. JANAKI, W/O. PATTIVELAN, AGED 54 YEARS, GANESAPURAM, PAMPAMPALLAM, PALAKKAD. 2. AMBIKADEVI, D/O. PATTIVELAN, AGED 28 YEARS, GANESAPURAM, PAMPAMPALLAM, PALAKKAD. 3. SIVANUNNI, S/O. PATTIVELAN, AGED 25 YEARS, GANESAPURAM, PAMPAMPALLAM, PALAKKAD. 4. NIRMALADEVI, D/O. PATTIVELAN, AGED 24 YEARS, GANESAPURAM, PAMPAMPALLAM, PALAKKAD. 5. SREEDEVI, D/O.PATTIVELAN, AGED 21 YEARS, GANESAPURAM, PAMPAMPALLAM, PALAKKAD. 6. K. SHANMUGHAN, S/O. KANTHASWAMY, AGED 54, C-232 CHERAN COLONY, THUDIYALLUR, COIMBATORE-34 (DRIVER OF TN-38/N 0108 BUS DL.NO.4700 BADGE NO.9855) ( DELETED) Respondent No.6 is deleted from the party array vide order dated 12/7/2006 in I.A.No.1268/2006 at the risk of the petitioner ADV. SRI.SAJAN VARGHEESE K. FOR R1 TO R5 SRI.LIJU. M.P FOR R1 TO R5 SRI.M.V.BIPIN FOR R1 TO R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 1849 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of September, 2010 JUDGMENT Basheer, J. One Pattivelan was allegedly knocked down by a bus owned by the appellant/Cheran Transport Corporation at about 5.40 a.m. on May 22, 1996. It appears that the victim succumbed to the injuries instantaneously. The alleged accident occurred on the National Highway at Pampampallam within the limits of Valayar police station. The police charge sheeted respondent No.6 herein, who was allegedly driving the offending vehicle. 2. The wife and children of deceased Pattivelan laid a claim before the Motor Accidents Claims Tribunal under Section 166 of Motor Vehicles Act seeking compensation from the appellant Corporation and the driver of the offending vehicle. 3. The Tribunal after considering the oral and documentary evidence available on record held that Pattivelan was knocked down by the bus belonging to the Corporation, while it was being driven by MACA.No.1849/2005 2 respondent No.6 on the ill-fated day and directed the appellant Corporation to pay a sum of Rs.1,00,714/- towards compensation with interest @ 9% from the date of petition till date of realisation. The said award is impugned in this appeal by the Corporation. 4. Sri.Anil Sivaraman, learned counsel for the appellant, submits that the impugned award is wholly unsustainable for reasons more than one. He points out that there was absolutely no evidence to show that the vehicle bearing Reg.No.TN 38/N 0108 belonging to the appellant corporation was involved in the alleged accident. Still worse, there was not even an iota of evidence to show that respondent No.6 was the driver of the vehicle at the time of the accident. Learned counsel contends that question of vicarious liability will arise only if it is established that a tort feasor as alleged by the claimant was involved in the alleged accident. Since the vehicle belonging to the appellant corporation was not at all involved, there was no question of the appellant becoming liable to pay any compensation to the victim of the so called incident. There was absolutely no evidence to show that respondent No.6 was driving the alleged offending vehicle at the time MACA.No.1849/2005 3 of the accident. In this context, learned counsel places heavy reliance on Ext.B1 judgment of the Criminal Court which had found respondent No.6 not guilty of the charge levelled against him under Section 279 and 304 A of IPC. 5. Are the above contentions valid and tenable ? 6. The case of the appellant Corporation before the Tribunal appears to be that deceased Pattivelan was found lying on the road apparently being knocked down by some vehicle. It is true that the claimants did not adduce any evidence before the Tribunal as regards the accident. However, one Mr.Selvaraj, who was stated to be the conductor of the bus bearing Reg.No.TN 38/N 0108 was examined as DW1. He asserted in his testimony before the Tribunal that his vehicle was not involved on the alleged day of the incident. According to him, he was on duty on that day in TN 38/N 0108 as conductor. His bus came from Coimbatore to Palakkad as per the schedule. While the vehicle was returning to Coimbatore, it was taken into custody by the police. He knew nothing more about the so called involvement of his vehicle in the alleged accident. But he admitted that respondent No.6 MACA.No.1849/2005 4 was the driver of the above vehicle on that day. 7. It may be noticed that in the statement filed by the appellant Corporation before the Tribunal, reference has been made to three buses belonging to the Corporation which were in operation on the route in question during the approximate time of occurrence. According to the officer, who filed the statement, all these three buses were stopped by the police and some enquires were made. But it was contended that none of the buses of the Corporation had knocked down any pedestrian in the early hours of that day as alleged by the police. In short, the contention of the Corporation before the Tribunal was of total non-involvement of any of its vehicle or employee. 8. However, the Tribunal noticed that police had registered a crime against respondent No.6 on the basis of Ext.A1, First Information Report. A perusal of Ext.A1 will show that the police had registered the crime at 7.30 a.m. on the basis of statement given by one K.Prabhakaran, who was examined as PW1 in the criminal case referred to earlier ( C.C.No.176/1996 on the file of Judicial Magistrate of First Class I, Palakkad). It is true that the driver of the offending MACA.No.1849/2005 5 vehicle was not mentioned by name in Ext.A1. But the number of the vehicle was specifically referred to in the FIR as TN 38/N 0108. First informant had stated in Ext.A1 that he had heard some sound on the road while he was sitting in his shop situated very near to his residence. When he rushed to the scene of the accident, he saw the vehicle bearing Reg.No.TN 38/N 0108 speeding away from the scene. He also saw one person lying on the road. The Tribunal further noticed that police had charge sheeted respondent No.6 after completing investigation. Ext.A5 is the final report filed by the police before the Criminal Court. Ext.A2- copy of the report of the Assistant Motor Vehicle Inspector, Ext.A3- copy of the Inquest Report prepared by the police and Ext.A4- Postmortem Certificate were also relied on by the Tribunal to come to the conclusion that the deceased victim was knocked down by the bus belonging to the Corporation. 9. As has been noticed already, there was no direct evidence to show that it was respondent No.6, who was driving the vehicle at the time of the accident. It is also beyond controversy that the Criminal Court found respondent No.6 not guilty and acquitted him under MACA.No.1849/2005 6 Section 256(1) of Code of Criminal Procedure. But in our view, the acquittal of respondent No.6 of the criminal charge may not be of any significance as far as determination of the liability of the appellant to pay compensation to the claimants. Going by the provisions contained in Section 169 of the Motor Vehicles Act, any eqnuiry on a petition seeking compensation is of a summary nature. What has to be considered by the Tribunal is only whether the claimant had suffered any injury in a road traffic accident and whether he was entitled to any compensation and if so, to be paid by whom. 10. It is contended by learned counsel for the appellant that it should have been established that Pattivelan had succumbed to the injuries sustained by him arising out of use of a motor vehicle. We are afraid the above contention is wholly untenable particularly in the nature of the materials that were produced before the Tribunal and reference to which have already been made by us. Appellant does not have a case that police had falsely implicated respondent No.6 in the Criminal Case with any ulterior motive or due to any ill will Ext.A1 FIR will unambiguously show that the vehicle of the appellant MACA.No.1849/2005 7 Corporation was involved in the accident. The police had filed Ext.A5 final report after conducting a full fledged investigation as provided under the Code of Criminal Procedure. 11. In that view of the matter, we have no hesitation to hold that the vehicle bearing Reg.No.TN 38/N 0108 was involved in the accident. Having considered the entire materials available on record, we do not find any reason to interfere with the above finding entered by the Tribunal. Lastly, learned counsel for the appellant contended that the amount of compensation awarded by the Tribunal is on the higher side. On a perusal of the award, we are unable to agree with the learned counsel. In our view, the amount awarded by the Tribunal is just and reasonable. In the peculiar facts and circumstances of the case, we are not inclined to interfere with the finding of the Tribunal in this regard as well. The appeal fails and it is accordingly dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1849/2005 8 MACA.No.1849/2005 9