IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 MACA.No. 318 of 2003() ---------------------- OPMV.1128/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): 4TH RESPONDENT: ---------------------------------------- THE MANAGING DIRECTOR, TAMILNADU STATE TRANSPORT CORPORATION LTD. (MADURAI DIVISION) LTD., NAGERCOIL. BY ADV. SRI.SUBHASH CYRIAC RESPONDENT(S): CLAIMANT & RESPONDENTS 1 & 3 ------------------------------------------- 1. NARAYANANKUTTY @ NARAYANAN NAIR, S/O.BHASKARAN NAIR, NARAYANA MANDIRAM, NOW RESIDING AT KAKKARA VEEDU, BHARGAVI NILAYAM, KUNNATHUKAL, KARAKONAM P.O. NEYYATTINKARA. (CLAIMANT) 2. M.D.SADASIVAN, KAVUNGAL VILAKATHU VEEDU, MURIYATHOTTAM, PARASSALA, NEYYATTINKARA (OWNER) 3. THE DIRECTOR OF STATE INSURANCE, KERALA STATE INSURANCE DEPARTMENT, T.C.25/866, THYCADU, THIRUVANANTHAPURAM. ADV. SRI.G.SUDHEER KARAKONAM FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: MACA.318/03 ORDER ON I.A.1093 OF 2003 IN MACA.318 OF 2003 DISMISSED. SD/- C.N.RAMACHANDRAN NAIR, JUDGE. SD/- C.K.ABDUL REHIM, JUDGE. 15.9.2009 okb /True copy/ P.A. to Judge C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. ---------------------------------- M.A.C.A. No.318 of 2003 ---------------------------------- Dated this the 15th day of September, 2009 J U D G M E N T ---------------------- Abdul Rehim,J. The 4th respondent before the Tribunal is the appellant. The parties are referred hereinafter in their respective order before the Tribunal. The claimant sustained injuries while travelling in a Bus owned by 4th respondent, which was driven by the 5th respondent. Accident occurred when a Mini Bus bearing Regn:No:KL-01/J 3357 driven by the 2nd respondent hit on the backside of the Bus owned by the 4th respondent, which was remaining stopped at the spot of accident for taking passengers. Respondents 1 and 3 herein are the registered owner and insurer of the Mini Bus which caused the accident. 2. The challenge in this appeal is against the findings of the Tribunal with respect to negligence and also against the liability fixed by the Tribunal on the appellant. It is contended that the Tribunal had committed a factual error in holding that the 5th respondent was negligent in causing the accident and in holding that the appellant/4th respondent as liable to pay the compensation. It is pointed out that the sole basis on which the Tribunal had arrived at the finding is the police case. Ext.A1 is MACA.318/03 2 copy of the F.I.R. of Kaliyikkavila police station in crime No:325/98. It is observed in the impugned award that the F.I.R is registered against the 5th respondent for offence punishable under section 279 and 337of IPC. But on a perusal of Ext.A1 F.I.R it is revealed that the 5th respondent is actually the complainant in the said case and the allegation in the F.I.R. is that the driver of the Mini Bus was negligent in causing the accident. The oral evidence in the case include the testimony of PW1. He had given evidence in terms of the allegation in the claim petition, which is to the effect that only the rash and negligent driving of the Mini Bus by the 2nd respondent caused the accident. But the Tribunal on an erroneous appreciation of the evidence on record held that the police case is against the 5th respondent and hence the 5th respondent is negligent in causing the accident. From the evidence on record it is clear that the accident occurred due to rash and negligent driving of the Mini Bus by the 2nd respondent. The 3rd respondent is the insurer of the Mini Bus who had admitted existence of a valid insurance policy. Therefore the award is liable to be reversed and the 3rd respondent is to be held liable for payment of the amount of compensation fixed by the Tribunal. 3. We take notice of the order of this Court passed in the above appeal on 8.4.2008. This Court directed the appellant to MACA.318/03 3 make payment of the entire balance amount and permitted the claimant to withdraw the amount so deposited. But it is made clear in that order that if it is found that the driver of the Mini Bus (by mistake written as Jeep) was negligent, right of recovery from the owner and driver of Mini Bus can be allowed in execution of the award itself. 4. As observed above it is clear that the accident is occurred solely due to negligence on the part of the Driver of the Mini Bus. The 3rd respondent in this appeal is the insurer of the Mini Bus who had admitted existence of valid policy before the Tribunal. Therefore we hold that the amount of compensation fixed by the Tribunal along with interest and cost in terms of the award, subject to the extent of the amount deposited by the appellant is recoverable from the 3rd respondent by filing execution petition before the Tribunal. It is made clear that the claimant need not be issued with notice in such proceedings. The appeal is disposed of as above. C.N.RAMACHANDRAN NAIR, JUDGE. C.K.ABDUL REHIM, JUDGE. okb