IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 MACA.No. 808 of 2005() ---------------------- AGAINST THE ORDER DATED 09/02/2005 IN OPMV.61/1998 & 112/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT(S): PETITIONER IN OP(MV)112/98 -------------------------------------------------- DILIP, S/O.RAMAN, AGED 27 YEARS, RESIDING AT PALLI PARAMBA HOUSE, P.O.QUILANDY. BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA RESPONDENT(S): RESPONDENTS IN OP(MV)112/98 ------------------------------------------ 1. T.P.SATHI, W/O.RAJAN P.V., PARIDEVA ELECTRICAL ENTERPRISES, S.H.K. COMPLEX, KOOTHUPATHA, PALAKKAD-7. (R.C OWNER, KL 9D-315 MINI LORRY). 2. K.REMESH, S/O.RAJAGOPALAN, RAJI NIVAS, COOLIMUTTAM, P.O.POLPULLY, PALAKKAD D.L.NO.3370/86 P. BADGE NO.1512/89 P. (DRIVER KL 9D-315 MINI LORRY). 3. THE NATIONAL INSURANCE COMPANY LTD., BRANCH OF PALAKKAD FORT MAJITHYAN, PALAKKAD-1, THROUGH THE DIVISIONAL OFFICE KOZHIKODE. POLICE NO.12300-301 G.CV. CERTIFICATE NO.023119. 4. C.H.MAMMED, FATHER NAME NOT KNOWN, CHARIYAMA HOUSE, P.O.AYANIKKAD, PAYYOLI, (R.C.OWNER OF BUS KED 667). MACA NO.808/2005 2 5. ARAVINDHAKSHAN, S/O.KUNHIKRISHNA KURUP, AGED NOT KNOWN, KALLARAKKAL HOUSE, KIZHAKKAN PERAMBRA, THANDORAPARA. DL.NO.318/83 BADGE NO.1319/84(DRIVER OF BUS KED 667). 6. THE ORIENTAL INSURANCE COMPANY LTD., BRANCH OFFICE, MAVOOR ROAD, KOZHIKODE. POLICY NO.441003 CERTIFICATE NO.2271140. ADV. SRI.R.PARTHASARATHY FOR R1 & R2 SMT.SEEMA FOR R1 & R2 SRI.E.M.JOSEPH FOR R3 SRI.GEORGE CHERIAN (THIRUVALLA) FOR R6 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/11/2008, ALONG WITH MACA NO. 1921 OF 2005 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A.Nos.808 of 2005 1920 of 2005 1921 of 2005 & 2115 of 2006 -------------------------------------- Dated this the 10th day of November, 2008. JUDGMENT Koshy, J. M.A.C.A.Nos.1920 and 1921 of 2005 are filed by the Insurance Company against the common award passed by the Motor Accidents Claims Tribunal, Vadakara in O.P.(MV) Nos.61 and 112 of 1998. M.A.C.A.Nos.808 of 2005 and 2115 of 2006 are filed by the claimants in the above claim petitions. 2. M.A.C.A.Nos.1920 and 1921 of 2005 are filed by the Insurance Company of the bus wherein the claimants were travelling on the date of accident. The allegation of the claimants was that the bus in which they were travelling collided with a mini lorry on 23.8.1997. It is their case that at about 1 p.m. on 23.8.1997 when the claimants were travelling in bus bearing registration No.KED:667 from kozhikode to Koyilandy, lorry bearing registration No.KL.9-D-315 driven by the second respondent in a rash and negligent manner hit the claimants' bus near Pookkad Angadi as a result of which claimants sustained serious injuries. MACA Nos.808/2005 & connected cases. 2 3. According to the appellant Insurance Company, accident occurred only due to the negligence of driver of the bus and the driver of the lorry was not at all responsible for the accident. The contention of the driver of the lorry (second respondent) was that his lorry was not involved in the accident. It was contended that there was an entry in the Chungam Check Post that the lorry reached that check post at 2.10 p.m on the date of accident, accident occurred at 1 p.m., the distance between the place of occurrence and the check post is 34 kms. and hence it is impossible to reach the check post by travelling one hour and ten minutes. Contention is that it is impossible to reach Chungam Check Post by driving the lorry within one hour and ten minutes. Tribunal rightly held that the mini lorry could have travelled 35 kms within one hour. At paragraph 16 of the award the Tribunal considered the matter as follows:- “Then the next question is could the petitioner reach Feroke within one hour and ten minutes from the place of accident that is Pookkad ? Ext.B10 will clearly go to show that the contention of the 2nd respondent that he was made to wait at check post, Feroke for a long time is not true. Because it is seen that it took only 2.10 minutes to check 234 vehicles (see the number assigned in Ext.B10). Further Ext.B10 itself reveals the fact that only one or two minutes time were taken for clearing each MACA Nos.808/2005 & connected cases. 3 vehicles (14.02, 14.05, 14.06, 14.07, 14.09, 14.10 and 14.12). So it is quite clear that the 2nd respondent was not made to wait at the check post for a long time. He could also not establish before the court that he was held up due to the passing of a train at the level cross on his way before reaching Feroke. So the net result of the evidence is that the 2nd respondent had more time in his sleeves to reach Feroke Chungam check post from the Elathur godown or even from the place of accident Pookkad. The 2nd respondent himself has admitted in the box that it will be only less than 1 ½ kilometres situate in between the godown and Elathur bridge and he was not correct in saying earlier that it was 5 kilometres. In between Pookad that is the place of accident and the Feroke Chungam check post distance will come to approximately 34 kilometres. The time for the journey (Afternoon) was not busy also. So it was not a big thing for a mini lorry travelling 34 kilometres within one hour particularly when there is a bye-pass in between the place of journey and the check post. The log sheet produced by the 2nd respondent I am bound to say is not worth reliable. It is not a difficult thing to manipulate a document of that sort. As per the page dated 23.8.97 the starting metre MACA Nos.808/2005 & connected cases. 4 reading of the vehicle as on that day was 6996. But when the vehicle was again taken on 25.8.97 the starting metre reading is 6978 which is lower than the ending metre reading on the page concerning the previous trip. There the theory is that witness may lie but the circumstances will not will come into play. So Ext.B4 log sheet cannot be taken into consideration. So there can be only one inference gathered from the facts out skirted is that the 2nd respondent had time to reach the Feroke Chungam check post at 2.30 from the place of accident after the accident which took place at 1 p.m.” 4. Tribunal also found that even the trip sheets produced are documents which are concocted and which cannot be relied on. But it was held that on the basis of the claimants' evidence it cannot be assumed that the mini lorry is involved in the accident since the claimants became unconscious immediately after the accident. But in this case the FIR was registered wherein the involvement of the mini lorry was clearly mentioned. Ext.A1 is the copy of FIR. Ext.A4 is the copy of the charge sheet which shows that the driver of the mini lorry was charge sheeted. Merely because he was acquitted in the MACA Nos.808/2005 & connected cases. 5 criminal case, the Tribunal is not bound to accept that finding. The burden of proof required is entirely different in a criminal case and in an accident case before the Tribunal. 5. Considering the evidence in this case, especially the fact that the police found after investigation that the lorry driver was negligent and he is charged, we are of the opinion that mini lorry bearing registration No.KL.9-D-315 was involved in the accident. Even if the claimants were unconscious, there were other witnesses to the accident who may not be interested in prosecuting the lorry driver. Police conducted investigation and chargesheeted the lorry driver. Accident occurred in day light and if any other lorry was involved, police would not have charged this mini lorry driver. Evidence also is to the effect that the mini lorry was coming from the opposite side and it hit the rear portion of the bus. Scene mahazar as well as the evidence would show that if the bus driver was also careful, the accident could have been avoided. But in any event, negligence of the driver of the mini lorry was more. After hitting, he sped away from the spot without stopping the vehicle. In the above circumstances, we accept the apportionment of negligence at 30% on the driver of bus insured by the appellant Insurance Company(sixth respondent in the claim petition) and 70% on the driver of the mini lorry which was insured by the third respondent Insurance Company. Since we are of the opinion that the amount calculated by MACA Nos.808/2005 & connected cases. 6 the Tribunal is just and reasonable, out of the total compensation awarded by the Tribunal, 30% should be deposited by the 6th respondent Insurance Company which was admittedly insured the bus and 70% should be deposited by the third respondent which was admittedly insured the mini lorry. In the result, M.A.C.A.Nos.1920 and 1921 of 2005 are dismissed and M.A.C.A.Nos.808 of 2005 and 2115 of 2006 are partly allowed. J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. cks