IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 MACA.No. 1336 of 2004() ----------------------- OPMV.1113/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANTS/ADDL.PETITIONERS 2,3 & 4: ---------------------------------------------------------------- 1. K.N.SARA, W/O. LATE V.M.JOHN, VAKASSERIL HOUSE, KEEZHUKUNNU BHAGOM, NATTASSERY KARA, MUTTAMBALAM VILLAGE. 2. BIJU M.JOHN, S/O. LATE V.M.JOHN, VAKASSERIL HOUSE, KEEZHUKUNNU BHAGOM, NATTASSERY KARA, MUTTAMBALAM VILLAGE. 3. BEENA V.JOHN, D/O. LATE V.M.JOHN, VAKASSERIL HOUSE, KEEZHUKUNNU BHAGAM, NATTASSERY KARA, MUTTAMBALAM VILLAGE. BY ADVS. SRI.K.S.MOHAMED HASHIM, SRI.SURIN GEORGE IPE. RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. GIMMY JOSEPH, S/O. JOSEPH, KUZHIVELIL KARA, KODUTHURUTHY VILLAGE. 2. UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, KOTTAYAM. R2 BY ADVS. SRI.JOHN KOSHY, SRI.RAJAN P.KALIYATH. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 1336 of 2004 =~=~=~=~=~=~=~=~=~=~=~= Dated this the 10th day of June, 2010 JUDGMENT Barkath Ali, J: In this appeal, under section 173 of the Motor Vehicles Act by claimants 2 to 4 in O.P.(MV) No.1113 of 1996 on the file of the Motor Accidents Claims Tribunal, Kottayam, the main question, which arises for consideration, is whether contributory negligence can be attributed to a passenger in a bus for placing his elbow on the window sill, while the bus was in motion and in the accident the elbow of such passenger was injured. 2. The O.P. was initially filed by deceased first claimant, claiming a compensation for the injuries sustained by him in the motor accident. Subsequently, he died. Claimants 2 to 4 are his legal heirs. On December 8, 1995 at about 7.30 p.m. the deceased first claimant was travelling in a bus bearing registration No. KL-5A 9689. At Thalayolaparambu, while the bus was giving side to a lorry, the right elbow of the first claimant kept on the window sill MACA 1336/2004 2 hit against the lorry. He sustained very serious injuries. According to him, the accident occurred due to negligence on the part of the third respondent, driver of the bus. The first respondent as the owner, second respondent as the insurer and third respondent as the driver of the offending bus are jointly and severely liable to pay the compensation to the first claimant. The first claimant claimed compensation of Rs.1.5 lakhs. 3. Respondents 1 and 3, the owner and driver of the offending bus, remained absent before the Tribunal. The second respondent, Insurance Company, filed a written statement, admitting the policy, but contending that the accident occurred due to negligence of the deceased first claimant and the driver of the lorry and that therefore, he is not entitled to any compensation. 4. PWs.1 and 2 were examined and Exts. A1 to A8 were marked on the side of the claimant. No evidence was adduced by the contesting third respondent. The Tribunal dismissed the O.P., finding that the accident occurred due MACA 1336/2004 3 to the negligence of the driver of the lorry involved in the accident, who could not be traced, and also due to the negligence on the part of deceased first claimant, as he has put his hand outside the bus negligently. The claimants have come up in appeal challenging the said findings of the Tribunal. 5. Heard learned counsel for the appellants and learned counsel for the second respondent Insurance Company. 6. The learned counsel for appellants/claimants 2 to 4 arguing the appeal submitted that deceased first claimant was only a passenger in the offending bus, that therefore no contributory negligence can be attributed to him and that the finding of the Tribunal that there was no negligence on the part of the bus driver and that the accident occurred due to the negligence of the driver of the lorry involved in the accident cannot be sustained, in the light of the evidence of PW2, an eye witness to the incident, and in the absence of any evidence on the side of the respondents. MACA 1336/2004 4 The learned counsel for the Insurance Company, on the other hand, supported the finding of the Tribunal. 7. The Tribunal mainly relied on the recital in Ext.P5, copy of the wound certificate wherein the alleged cause was shown as while deceased first claimant was travelling in the bus, the lorry came and hit the elbow of the deceased. Ext.A4, copy of investigation report of police, shows that the driver of the lorry was made an accused and the same was referred, as he could not be traced out. Therefore, the Tribunal came to the conclusion that there was no negligence on the part of the driver of the bus. But Ext.A5 is not proved by the doctor who issued the same and Ext.A4 is also not proved by the Investigating Officer. Therefore, the tribunal is not justified in relying on Exts.A4 and A5. On the other hand, PW1, the claimant, and PW2, and eye witness to the incident, categorically stated that the accident occurred due to the negligence of the driver of the bus. Their evidence in this aspects was not discredited in cross examination. The third respondent insurance MACA 1336/2004 5 company has not chosen to examine the driver of the bus as a witness to prove that there was no negligence on his part or to show that there was also responsible on the part of lorry driver. 8. That apart the second respondent, the driver of the bus, owes a duty of care for the safety of passengers travelling in the bus. He has a duty to see that the passengers do not receive any injuries during the course of the journey. To achieve this object he has to look out for any possible obstruction on the road and to take reasonable steps to avoid obstruction without causing any injury to the passengers. While overtaking a moving vehicle or crossing another vehicle, the driver has to leave sufficient space in order to see that there was no likelihood of the passengers' arms being injured. He should have foreseen the possibility of passengers resting their elbows on the window-sill. In the process of crossing or overtaking another bus, he must not only avoid contact with the body of the bus but also avoid the elbow of any passenger resting on window-sill coming in MACA 1336/2004 6 to contact with the oncoming bus or the bus which he is overtaking. Precautions are therefore to be taken by him to leave sufficient gap for preventing any mishap. From the evidence in this case it is clear that the 2nd respondent has not taken such precautions. Therefore from the evidence in this case it is clear that the accident occurred due to the negligence of the second respondent. 9. The next question to be considered is whether deceased/first claimant has contributed to the accident by keeping his elbow on the window-sill. A Division Bench of this court in Mammachan V. Kerala State Road Transport Corporation ( 1994(2) KLT 299) held that in such a circumstance contributory negligence cannot be attributed to the passenger. Negligence could have been attributed to the passenger, if he has stretched his arm while the bus was in motion and the arm has come into contact with the lorry. The accident in this case happened while the bus was crossing the lorry. The injury to deceased/the first claimant was on elbow, which shows that he has not stretched his MACA 1336/2004 7 arm outside the window. It shows that sufficient gap is not left between the bus and the lorry. Therefore, the finding of the Tribunal that there was contributory negligence on the part deceased first claimant is unsustainable. 10. In the result, the judgment and award of the Tribunal dismissing the O.P. are set aside. The matter is remanded to the Tribunal for computing the compensation which the claimants are entitled to for the injuries sustained by the deceased first claimant. The Tribunal shall dispose of the O.P. within three months from the date of receipt of a copy of this judgment. Both parties are entitled to adduce further evidence, if any, before the Tribunal. The parties shall appear before the Tribunal on July 15, 2010. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn MACA 1336/2004 8