IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 28TH OCTOBER 2008 / 6TH KARTHIKA 1930 MACA.No. 1473 of 2005() ----------------------- OPMV.977/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA .................... APPELLANT(S): -------------- 1. MARYKUTTY, WIFE OF CHACKO, SAWRIYAR, VAYARAKUNNIL HOUSE, CHIRAYIRAMBU.P.O., MARAMON. 2. PRASANNA V.S., D/O. OF DO. 3. ALEX SAWRIYAR, SON OF DO. BY ADV. SRI.V.G. ARUN RESPONDENT(S): --------------- 1. JAMES K.MATHEW, KIZHAKKEPARAMBIL HOUSE, CHAMPAKKARA, KARUKACHAL, KOTTAYAM. 2. SALI P.CHERIAN, PALATHINKAL HOUSE, POOVANTHURUTHU, PANABHIKKADU, KOTTAYAM. 3. THE MANAGER, NEW INDIA ASSURANCE COMPANY LTD., CENTRAL JUNCTION, KATTAPPANA. ADV. SRI.A.C.DEVY FOR R3 SRI.JAIBY PAUL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 28/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. .................................................................... M.A.C.A. No.1473 of 2005 .................................................................... Dated this the 28th day of October, 2008. JUDGMENT Ramachandran Nair, J. Appeal is filed challenging the order of the MACT rejecting a claim petition filed for compensation for the death of son of the first appellant who is the brother of appellants 2 and 3, in a road accident. The deceased who was only 25 years of age was driving an autorickshaw at the time of the accident. The autorickshaw collided with a bus driven by the first respondent and the deceased who was driving the autorickshaw sustained fatal injuries. Immediately after the accident he was admitted in the hospital with head injuries and fracture of both legs. The accident happened at 8.30 in the morning on 27.8.1994 and after two days of hospitalisation, the driver of the autorickshaw who is the son of the first appellant, died in the hospital on 30.8.1994. A passenger in the autorickshaw was also injured in the same accident. Both the appellants as well as the injured passenger of the autorickshaw filed claim petition against second respondent and the insurer of the bus. While the claim of the injured passenger was settled by the third respondent, the claim petition filed by the appellants was contested by the 2 third respondent and the MACT rejected the claim petition holding that the accident was caused on account of negligence of the deceased who was driving the autorickshaw. 2. We have heard counsel appearing for the appellants and Standing Counsel appearing for the third respondent. The appellants' case is that the reason for rejection of claim petition is only the FI statement alleged to have been given by the deceased soon after the accident wherein he conceded that the autorickshaw went out of control and dashed against the bus. Counsel for the appellants contended that FI statement cannot be relied on because it is not proved by anybody. When the person who gave FI statement is no more, it should have been proved by the person who recorded it which is also not seen done in this case. In fact, MACT has assumed that the contents of FI statement are correct. Counsel for the appellants highlighted the physical condition of the deceased-injured at the time of giving FI statement and according to him, the injured was not in a physical or mental condition to give cogent statement about the accident and sign the same. We find some force in this contention because the deceased was critically injured with injuries to the face, fracture of two legs and he 3 had also sustained internal injuries which led to his death within two days of the accident. Besides challenge against the acceptability of FI statement, the appellants have also contended that the Insurance Company has settled the claim of the passenger of the autorickshaw who had also sustained injuries. However, counsel for the Insurance Company pointed out that the insurer of the autorickshaw as well as the bus was the same company and therefore, it makes no difference whether the claim was settled by the Branch of the company which insured the bus or by the Branch which insured the autorickshaw. We accept this argument because if the claim was not settled by the Branch of the Insurance Company which insured the bus, the other Branch which insured the autorickshaw was liable to pay compensation to the passenger of the autorickshaw who sustained injuries. However, we do not find justification for the Tribunal to reject appellant's claim merely based on the FI statement alleged to have been given by the injured-deceased, more so when the FI statement is not proved through the person who recorded it. The injuries sustained by the appellant are such that it can happen only because of the speed of the vehicles or atleast one of the vehicles. It is also be noted that even though injured stated that the 4 autorickshaw slipped out of his hand, he has not conceded that he was negligent or was driving the autorickshaw at an uncontrollable speed. In fact he has not even ruled out the possibility of negligence or high speed on the side of the bus driver. MACT has placed much reliance on the scene mahazar to hold that the autorickshaw was in the wrong side. However, we notice that the autorickshaw was thrown off on account of the collision and therefore, the location or scene of occurrence itself is a matter of guess work made by the Police Officer who prepared the mahazar. From the facts and circumstances stated above, we feel it will not be proper to attribute negligence for the accident solely on the deceased. In other words, there is likelihood of atleast contributory negligence on the part of the first respondent, more so because the Insurance Company settled the claim of the injured passenger of the autorickshaw who filed claim petition on the ground that the accident was caused on account of the negligence of the first respondent who was driver of the bus. In the circumstances and since the deceased was only 25 years of age at the time of accident and since the first appellant is the widowed mother of the deceased driver of the Autorickshaw, we award a compensation of rupees one lakh to the first 5 appellant. Since Rs.25,000/- is already paid under interim award, we direct the Insurance Company to deposit the balance amount before the MACT in favour of the first appellant, within a period of one month from date of production of copy of this judgment. If payment is not made within the time stated above, then there will be direction to the Insurance Company to pay interest at 9% p.a. on this amount from date of this judgment till date of payment. C.N.RAMACHANDRAN NAIR Judge HARUN-UL-RASHID Judge pms