IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 MACA.No. 365 of 2009() ---------------------- OPMV.1802/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/2ND RESPONDENT: -------------- THE MANAGING DIRECTOR KERALA STATE ROAD TRANSPORT CORPORATION THIRUVANANTHAPURAM. BY ADV. SRI.K.PRABHAKARAN, SC, K.S.R.T.C. RESPONDENTS/PETITIONER & 1ST & 3RD RESPONDENTS: --------------- 1. M.S. UNNIKRISHNAN, S/O.SREEDHARAN NAIR MUKALEL HOUSE, COLONY, NERIAMANGALAM PO KOTHAMANGALAM. 2. REJI.K.MATHEW, PULIYATTIL HOUSE CHUNANGAMVELY P.O.ALVUA (VIA) ERNAKULAM DISTRICT 3. NATIONAL INSURANCE CO.LTD VAZHUTHACAUD, THIRUVANANTHAPURAM. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT NO REPRESENTATION. APPELLANT ABSENT. COUNSEL ABSENT. THE APPEAL IS DISMISSED FOR DEFAULT. 3.11.2009 SD/= M.N. KRISHNAN, JUDGE. /TRUE COPY/ P.A. TO JUDGE. cl M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 365 OF 2009 = = = = = = = = = = = = = = = Dated this the 22nd day of January, 2010. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV) 1802/02. The case is as follows. The claimant was a passenger in a bus bearing Reg.No.K.-15/3126 driven by the first respondent and owned by the K.S.R.T.C. When the bus reached Kulanadu junction on its way from Kottayam the claimant sustained injuries due to throwing of stones by the followers of a party which had called for a bundh on 1.12.99. 2. The K.S.R.T.C would contend the accident took place not on account of the negligence of the bus driver but due to the pelting of stones by the bundh activists. The Tribunal by relying on the decision reported in Rita Devi's case found that the accident had taken place due to the use of the vehicle and awarded a compensation of Rs.36,116/- and had exonerated the insurance company from the liability and directed the appellant to pay the amount. It is against that decision the present appeal is preferred. M.A.C.A. 365 OF 2009 -:2:- 3. It has to be remembered that the decision relied upon by the Tribunal namely Rita Devi and others v. New India Assurance Company Ltd. (AIR 2000 SC 1930) was a case which arose under Section 163A of the M.V.Act. Being one u/s 163A the question of negligence was not the criteria and the only use of the motor vehicle was the criteria. So by finding that the accident took place in that case on account of the use of the motor vehicle Apex Court awarded the compensation. A similar question had come up before consideration before a Division Bench of this Court in the decision reported in Shaju v. Babu (2007 (4) KLT 1076). It was a case where the mob attacked a bus by throwing stones, bombs etc. resulting in injuries to the occupants of the bus. It was a claim u/s 166 of the M.V.Act and the Division Bench of this Court held that, “Unlike in a claim u/s 163A, for making the driver or owner liable u/s 166, their negligence has to be proved. If driver is negligent in driving and is responsible for M.A.C.A. 365 OF 2009 -:3:- the accident, he is liable to pay compensation and owner is also liable vicariously to pay compensation. The Court further held that it is essentially a tortuous liability and the exception is only u/s 140 or 163A of the M.V.Act. But to award a claim u/s 166 there must be negligence on the part of the driver or owner of the offending vehicle even though proof required in criminal case cannot be insisted by the Tribunal. Analyzing the matter the Court held that the accident had taken place not on account of the negligence of the bus driver but on account of an act by an external agency over which the driver did not have any control and therefore negligence cannot be attributed on the driver. Thereafter this Court dismissed the case. The Court also observed that the said finding will not take away the right of the appellants in claiming damages from the person who caused bomb blast. M.A.C.A. 365 OF 2009 -:4:- 4. Now the principles laid down in the above case will squarely apply to the facts of the case. The bus was run by the driver on a bundh day. It is a practice by some of the political parties. There will not be any prohibition to drive public utility vehicles and considering the inconvenience of the public at large vehicles are plied. Under such circumstances if somebody who has nothing to do with the vehicle by acting from outside pelted stones on the bus, one cannot attribute negligence on the driver of the bus. So the principal difference between the dictum laid down in Rita Devi's case and the present case is to the effect that this is a case where the negligence is to be proved as the claim is only u/s 166 of the M.V.Act whereas in Rita Devi's case the question was not of negligence for the reason it was a claim u/s 163A where the Court was only concerned over the injury or death had taken place on account of the use of a motor vehicle. Therefore I hold that the claimant has not succeeded in proving the negligence of the driver and an M.A.C.A. 365 OF 2009 -:5:- action u/s 166 cannot be entertained. Therefore the claim petition is dismissed. In the result the appeal is allowed and the award passed by the Tribunal is set aside and the original petition namely the claim application is dismissed. M.N. KRISHNAN, JUDGE. ul/-