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 2ND MARCH 2010 / 11TH PHALGUNA 1931 MACA.No. 1612 of 2007 ----------------------------------- OPMV.128/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... APPELLANTS / PETITIONERS: ----------------------------------------------- 1. SARASWATHY, W/O. LATE SUBRAMANIAN, EDAPATTY, MUTTIL POST, VYTHIRI TALUK, WAYANAD DISTRICT. 2. RAJESWARI, D/O. LATE SUBRAMANIAN, -DO- -DO-. 3. MANIKANDAN, S/O. LATE SUBRAMANIAN, AGED 18 YEARS, -DO- -DO-. BY ADV. SRI.GRASHIOUS KURIAKOSE SMT.CELINE JOSEPH RESPONDENTS / RESPONDENTS: ----------------------------------------------------- 1. VELAYUDHAN, S/O. RAVUNNY, PULIMANIL VEEDU, PAZHUPATHOOR, S. BATHERY. 2. THE MANAGING DIRECTOR, SOUTH WAYANAD MOTOR SERVICE (P) LTD., SULTHAN BATHERY. 3. UNITED INDIA INSURANCE CO. LTD., NOORNAL BUILDINGS, S. BATHERY. ADV. SRI.AUGUSTINE JOSEPH FOR R1 & 2 SRI.K.S.ROCKEY FOR R1 & 2 SRI.A.A.MOHAMMED NAZIR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 02/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1612 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of March 2010 JUDGMENT Basheer, J. Appellants are the widow and two minor children of deceased Subramanian who was allegedly involved in a road traffic accident. The claim petition filed by the appellants was dismissed by the Motor Accident Claims Tribunal holding that they could not establish that deceased Subrahmanian died due to heart failure consequent to the fall inside the bus when the driver applied sudden break. Hence this appeal. 2. The case of the appellants/claimants before the Tribunal was that on January 16, 1999 at about 2 p.m. deceased Subramanian had boarded the bus bearing Registration No.KL12/2035 from the bus stop near Civil Station at Kalpetta, in order to come to his residence at Edapetty. According to the appellants, the driver (respondent No.1) drove the bus in a rash and negligent manner and suddenly applied break as a result of which the deceased Subramanian lost balance and fell down inside the bus resulting in some injuries on his face. Sri.Subramanian was taken to the hospital at Kalpetta immediately, since he collapsed because of the fall. However, he succumbed to the injuries on his way to the hospital. Appellants contended that the mishap occurred only because of the rash and negligent driving of the bus by respondent No.1. The bus was owned by respondent No.2. Since respondent No.3 Insurance Company had issued a valid policy certificate in respect of the bus, the appellants claimed compensation from the respondents. M.A.C.A.No.1612 OF 2007 :: 2 :: 3. The owner and driver of the bus remained absent and they were set ex parte. In the counter affidavit filed by respondent No.3, it was contended that deceased Subramanian was a heart patient. He suffered a heart attack inside the bus and was taken to the hospital. Death of Subramanian was not due to any accident as alleged, but it was only due to the coronary artery disease that he was afflicted with. 4. The wife of deceased Subramanian was examined as PW1. A co-passenger of the deceased was examined as PW2 to peak about the accident. Exts.A1 to A5 were marked on the side of the appellants. An officer of the insurance company was examined as RW1 and the doctor who conducted autopsy on the body of deceased Subramanian was examined as RW2. Exts.B1 and B2, the final report submitted by the police as regards the accident and the policy certificate issued by the insurance company respectively, were also marked in the case. 5. The Tribunal, after considering the oral and documentary evidence on record, took the view that going by the final report submitted by the police (Ext.B1) it cannot be said that deceased Subramanian was a victim of the accident. The Tribunal also relied on Ext.A1, postmortem certificate and the oral testimony of RW2, the doctor who conducted autopsy on the body of deceased Subramanian in this regard. 6. When this appeal came up for consideration, we called for the lower court records. We have heard learned counsel for the parties at length and perused the entire materials available on record. 7. As has been noticed already, deceased Subramanian was admittedly a passenger in the bus driven by respondent No.1. While the claimants would allege M.A.C.A.No.1612 OF 2007 :: 3 :: that deceased Subramanian lost his balance and fell inside the bus because of the impact of the sudden break applied by the driver, the case of the insurance company is that deceased Subramanian had died due to heart failure. 8. RW1, an officer of the Insurance company, deposed before the court that he had come to know about the cause of death only from Ext.A1, postmortem certificate and also from Ext.B1, final report submitted by the police. Similarly, he came to know about the coronary ailment of deceased Subramanian from these two documents. 9. PW2, who was examined as an eye witness to the occurrence, deposed before the court that he was a co-passenger in the bus on the crucial date. According to him, deceased Subramanian was standing inside the bus holding on the steel bar over head. When the driver applied break suddenly in order to avert collision with an on coming vehicle, Subramanian lost his hold on the steel bar and resultantly lost his balance and fell forward. His nose and face hit on the perpendicular steel bar and he sustained injuries. According to this witness, the accident occurred only because of the rash and negligent driving by respondent No.1. This witness asserted that respondent No.1 was driving the vehicle at an excessive speed and in a reckless manner. He also stated that he knew deceased Subramanian for the last 20 years. In cross examination, it was brought out that this witness had never been questioned in connection with the crime registered by the police. 10. Sri.A.A.Mohammed Nazir, learned counsel for respondent No.3, insurance company submits that the Tribunal had rightly disbelieved PW2, since his evidence, on the face of it, was artificial and unreliable. The first informant who M.A.C.A.No.1612 OF 2007 :: 4 :: was none other than the brother in law of Subramanian was not cited or examined by the claimants before the tribunal. More importantly, the police after concluding the investigation had submitted the final report exonerating the driver. The Investigating officer found that deceased Subramanian suffered heart attack as soon as he boarded the bus. Learned counsel submits that there is no reason why the conclusion made by the Investigating Officer cannot be accepted. 11. We have carefully perused Ext.B1 final report filed by the Investigating officer before the court of competent jurisdiction. The report will not give any clue as to how the Investigating officer came to the conclusion that deceased Subramanian suffered heart attack as soon as he boarded the bus. The name of the witnesses who narrated such an incident before the officer has not been mentioned. It is seen stated by the Investigating officer that deceased Subramanian had to run a few paces in order to get into the bus which was on the move. As soon as he got inside the bus, deceased Subramanian complained of discomfort and he collapsed. 12. It may be noticed that deceased Subramanian had suffered some injuries on his face. Ext.A1 postmortem certificate will stand testimony to this. RW2, the doctor who conducted autopsy on the body of deceased Subramanian, candidly admitted that he had noted certain injuries in the body of deceased Subramanian. But he stated that he had not noted the age of the injuries. There is absolutely no mention about any such injury in the final report submitted by the police. Therefore, in our view, much reliance cannot be placed on the final report submitted by the police. We also do not find any reason to discard the oral testimony of PW2. 13. Having regard to the totality of facts and circumstances available on record, we are not satisfied with the reasoning or conclusion made by the Tribunal. M.A.C.A.No.1612 OF 2007 :: 5 :: The finding by the Tribunal that the claimants had failed to establish that deceased Subramanian was a victim of the accident cannot be sustained. Therefore, the said finding is set aside. The case is remitted to the Tribunal to quantify the compensation, if any, that the claimants would be entitled to get on the basis of the evidence adduced by them in this regard. It will be open to the parties to adduce further evidence, if any, in support of their respective contentions. 14. It is brought to our notice that during the pendency of the claim petition, the Insurance company had deposited a sum of Rs.50,000/- before the Tribunal as provided under Section 140 of the Act. After disposal of the claim petition, the Insurance company preferred an appeal apparently seeking recovery of the said amount from the claimants. But, by judgment dated August 5, 2005 in MFA No.281/2000, a Division Bench of this court held that the claim for refund was wholly untenable, especially, keeping in view the object of the legislation. 15. However, we make it clear that if ultimately the Tribunal finds that the appellants are entitled to get any compensation, the sum deposited by the Insurance company shall be adjusted towards the amount that may be awarded by the Tribunal. 16. Parties shall appear before the Tribunal on March 31, 2010. Registry shall send back the records to the Tribunal forthwith. Appeal is disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes