IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 MACA.No. 1323 of 2005() ----------------------- OPMV.1105/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANTAS/APPLICANTS. ------------------------------------- 1. SHAJITHA BEEVI, S/O.LATE SHIHAHBUDEEN, VELLERIKONATHU VEEDU, IRIYANADU, PANAVOOR PO, NEDUMANGAD, TRIVANDRUM. 2. MASTER MOHAMMED SHAN (MINOR), S/O.LATE SHIHABUDEEN, VELLERIKONATHU VEEDU, IRIYANADU, PANAVOOR P.O. NEDUMANGAD, TRIVANDRUM. 3. MISS AMINA, MINOR, D/O.LATE SHIHABUDDEN, VELLERIKONATHU VEEDU, IRIYANADU, PANAVOOR P.O. NEDUMANGAD, TRIVANDRUM. 4. HABEEBKUNJU, S/O.MYTHEEN PICHA, VELLERIKONATHU VEEDU, IRIYANANDU, PANAVOOR P.O. NEDUMANGAD, TRIVANDRUM. 5. ABUSA BEEVI, W/O.HABEEB KUNJU,' VELLVERIKONATHU VEEDU, IRIYANADU, PANAVOOR, P.O. NEDUMANGAD, TRIVANDRUM. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.A.S.SABU SRI.VIMAL KUMAR.A.V. SRI.A.G.GIRISH KUMAR RESPONDENTS: RESPONDENTS. -------------------------------------------- 1. THE MANAGING DIRECTOR, K.S.R.T.C. TRANSPORT BHAVAN, TRIVANDRUM. 2. RAJENDRANNAIR, S/O.PARAMESWARAN NAIR, THAZHAMBU PUTHEN VEEDU, BEHIND SAP CAMP, EDAKKULAM, KANJIRAMPARA, KANJIRAMPARA P.O. TRIVANDRUM. PRESENTLY WORKING AS DRIVER K.S.R.T.C. PEROORKKADA DEPOT, PEROORKKADA P.O. TRIVANDRUM. ADV. SHRI.JOHNSON P.JOHN, SC, KSRTC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON 16/07/2009 DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No. 1323 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of June, 2009 JUDGMENT Joseph Francis, J. This appeal is filed by the petitioners in O.P.(M.V.) No. 1105 of 2000 on the file of the Motor Accidents Claims Tribunal, Trivandrum. Respondents 1 and 2 herein are respondents 1 and 2 in that Original Petition, which was filed under Section 166 of the Motor Vehicles Act. 2. The allegation is that on 5.11.1999 at about 1.30 p.m. deceased Shihabudeen was riding a scooter bearing No. KL- 01/9840 along the Peroorkada - Nedumangad public road and when he reached near Anarkali Mandapam at Vazhayila, a K.S.R.T.C. bus bearing No. KL-15/0784 (TR 749) driven by the second respondent in a rash and negligent manner came from the opposite direction and knocked him on the road, as a result of M.A.C.A.No. 1323 of 2005 2 which, he sustained serious injuries and died on the same day. The first respondent is the owner of the K.S.R.T.C. bus. 3. The first petitioner is the widow, petitioners 2 and 3 are the minor children and petitioners 4 and 5 are the parents of deceased Shihabudeen. They claimed Rs. 10 Lakhs as compensation. 4. Respondents 1 and 2 filed separate written statement contending that the K.S.R.T.C. bus is not involved in the accident and that the accident occurred due to the negligence of the deceased and that the compensation claimed is excessive. 5. In the Claims Tribunal, PWs. 1 and 2 and RW1 were examined and Exts.A1 to A11 were marked. The Tribunal, on considering the evidence, dismissed the petition on the ground that the petitioners failed to prove the involvement of the K.S.R.T.C. bus in the accident. Against that award the petitioners filed this appeal. 6. Heard the learned counsel for the appellants and the learned counsel for the respondents. M.A.C.A.No. 1323 of 2005 3 7. The learned counsel for the appellants submitted that the award of the Tribunal is based on wrong way of appreciation of facts and evidence. Whereas, the counsel for the respondents submits that the findings of the Tribunal with regard to the accident is correct. It is now well settled position of law that while considering the claim petition, the Claims Tribunal is required to hold an enquiry and not to act as a criminal court so as to find whether the claimants have established the occurrence beyond any shadow of doubt. In the enquiry, if there is prima facie evidence of the occurrence, there is no reason to disbelieve such evidence. 8. PW1, who is the first petitioner, is not an eye witness to the accident. PW2 is an eye witness to the accident. He deposed that he saw the accident, in which the first petitioner's husband died. PW2 deposed that the accident took place in the Nedumangad - Trivandrum road. The deceased was riding a scooter from west to east and the K.S.R.T.C. bus, which was driven in a rash and negligent manner, came from the opposite direction and hit on the scooter and that the M.A.C.A.No. 1323 of 2005 4 accident was due to the negligence on the part of the driver of the K.S.R.T.C. bus. In cross examination, PW2 deposed that the K.S.R.T.C. bus hit the scooter after overtaking a cyclist. 9. Ext.A1 F.I. statement was not given by an eye witness. Therefore, Ext.A1 cannot be relied on for the purpose of ascertaining the actual occurrence. The second respondent was examined as RW1. He deposed that the K.S.R.T.C. bus is not involved in the accident. He deposed that the bicycle was proceeding in front of the scooter driven by the deceased and when the bicycle abruptly turned in order to avoid a gutter, the scooter hit on the bicycle and the deceased fell down and sustained the injuries. The testimony of DW1 cannot be fully accepted, as it is not supported by independent evidence. The testimony of PW2 that the K.S.R.T.C. bus hit on the front of the scooter also cannot be accepted, as no damage is caused in front of the scooter as per Ext.A9 vehicle mahazar. Ext.A2 scene mahazar also cannot be relied on as at the time of preparation of that mahazar the K.S.R.T.C. bus was not there. M.A.C.A.No. 1323 of 2005 5 10. Ext.A11 is the copy of the inquest report, which shows that it was prepared on the next day of the accident, i.e. 6.11.1999. In Ext.A11 inquest report, it is stated by three witnesses that while deceased Shihabudeen was riding a scooter, a cyclist was going in front of the scooter and when the cyclist suddenly turned the bicycle in order to avoid a gutter, Shihabudeen applied the brake of the scooter and then the body of the K.S.R.T.C. bus coming from behind hit on his head, as a result of which, he fell down and sustained injuries. The involvement of the cyclist is also spoken to by RW1. 11. Considering all these aspects of the matter, we are of the view that what is stated by the three witnesses in the inquest report appears to be more probable. In that aspect of the matter, we are of the view that the deceased and the second respondent, who was driving the K.S.R.T.C. bus, are equally (50:50) responsible for the accident. Since the Claims Tribunal has not assessed the compensation payable to the petitioners, the case has to be remanded back to the Claims Tribunal, M.A.C.A.No. 1323 of 2005 6 for the purpose of assessing the compensation payable to the petitioners. 12. Accordingly, this appeal is allowed and the award dismissing O.P.(M.V) No. 1105 of 2000 on the file of the M.A.C.T., Trivandrum is set aside. The said petition is remanded to the M.A.C.T., Trivandrum for assessing the compensation payable to the petitioners. Sufficient opportunity must be given to both sides to adduce further evidence, if necessary. The parties are directed to appear before the M.A.C.T., Trivandrum on 18.8.2009. The parties are directed to suffer their respective cost in this appeal. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm