IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 MACA.No. 1517 of 2008() ---------------------------------- OP(MV).163/2001 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT(S): PETITIONER ---------------------------- STEFY, KILIVILA VEEDU, THAZHUTHALA CHERY, ADICHANALLOOR, KOLLAM. BY ADV. SRI.AJAYA KUMAR. G RESPONDENT(S): RESPONDENTS 1 TO 3 --------------------------- 1. M.SALAVUDEEN, KILIVILA VEEDU, THAZHUTHALA CHERU, ADICHANALLOOR, KOLLAM. 2. THE BRANCH MANAGER, NATIONAL INDIA INSURANCE COMPANY LTD., P.B.NO.157, HOSPITAL ROAD, KOLLAM. 3. DIRECTOR, THEERADESA MAHILA SOCIETY, CANAL ROAD, PALLITHOTTAM, KOLLAM. ADV. SRI.E.M.JOSEPH FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== MACA No.1517 OF 2008 ===================== Dated this the 5th day of December 2008 JUDGMENT This appeal is preferred against the award of the I Addl.Motor Accidents Claims Tribunal, Kollam in O.P.(MV)No.163/2001. The claimant, a passenger in an autorickshaw sustained injuries in a road accident when the vehicle lost its control and hit on a tree. It was found that the accident was on account of the failure of the break. The police did not charge any case on account of the fact that the accident took place on account of a mechanical defect of the vehicle. It is sufficient in a case where criminal rashness or negligence is concerned. But, when a case is filed under the civil law that too on a tortious liability, an owner or a driver is expected to take prudent care before plying the vehicle to see whether the break was in condition or whether there was any defect with the system and in spite of doing the same if the break had failed then one can consider that accident as an inevitable accident. Such a plea is a plea of exception to the general rule and the burden is squarely on the driver to establish the same. Here, the driver had not chosen to contest the case at all and there is MACA 1517/2008 -:2:- nothing available before the Tribunal to show that sufficient care was taken to test all these things. So I disagree with the finding of the Tribunal and hold that there was negligence on the part of the auto driver to ensure that the vehicle was in a roadworthy plying condition and so negligence has to be attributed to him and a poor passenger in an autorickshaw cannot be attributed any negligence in such cases. Therefore, I set aside the finding of negligence and hold that the accident had taken place on account of the negligence of the auto driver. Unfortunately the Tribunal has not considered the quantum of compensation. Therefore the award under challenge is set aside and the case is remitted back to the Tribunal for the purpose of fixing the quantum of compensation as well as the liability or breach of policy conditions. Parties are directed to appear before the Tribunal 6.1.2009. MACA is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-