Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 10TH DAY OF APRIL 2023 / 20TH CHAITHRA, 1945 MACA NO. 3433 OF 2017 AGAINST THE JUDGMENT IN OPMV 360/2011 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, PALAKKAD / III ADDITIONAL MACT, PALAKKAD APPELLANT/1ST RESPONDENT: THE MANAGING DIRECTOR STATE EXPRESS TRANSPORT CORPORATION PALLAVAN SALAI, CHENNAI - 02 BY ADVS. SRI.SUBHASH CYRIAC SMTSHEEBA JOSEPH RESPONDENT/APPLICANTS & 2ND RESPONDENT:
1 CHELLAKUTTY W/O KRISHNAN, SIVAJI NAGER, AALAMARAM, 2 KRISHNAN S/O CHAMI, SIVAJI NAGER, AALAMARAM, 3 HEMA ALIAS HEMALATHA D/O KRISHNAN,SIVAJI NAGER, AALAMARAM, 4 RAJEEV S/O KRISHNAN, SIVAJI NAGER, AALAMARAM, 5 RADHIKA D/O KRISHNAN, SIVAJI NAGER, AALAMARAM, 6 RAJU S/O MARUTHAN, DOOR NO.68, AMARAVATHI NAGAR, CARE COLONY, PULIYUR PO, KARUR-639114. [THE DEATH OF R6 RECORDED AS PER ORDER DATED ..2.. BY ADV SRI.U.BALAGANGADHARAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ..3..
JUDGMENT
This appeal, by the Managing Director of the State Express Transport Corporation, Chennai, is impelled against the Final Award of the Motor Accidents Claims Tribunal, Palakkad (‘Tribunal’ for short), in OP(MV)No.360/2011.
2. The afore Original Petition was filed by the
respondents seeking compensation against the appellant for the death of Krishnan, who was involved in a road accident on 09.10.2010 - when the motorcycle ridden by him was hit by the offending bus owned by the appellant, allegedly driven in a rash and negligent manner.
3. The appellant contends that the finding of the
learned Tribunal, that the driver of offending bus was solely responsible for the accident, is incorrect; while, there is clear evidence on record to establish that the deceased was not wearing a helmet and that had he done so, his death could have been averted. They thus pray that the impugned Award be set aside.
4. Sri.Subash Syriac - learned counsel for the appellant, took me extensively through the evidence on record, ..4..
to argue that there is scarce evidence to establish any negligence on the part of the driver of the bus; and that, on the contrary, it shows that deceased was not wearing a helmet, thus contributing to his unfortunate death. He argued that when these facts are fully proved, the learned Tribunal could not have mulcted his client with any liability to pay compensation. He, however, conceded that the quantum of compensation, or the eligibility of the appellant to receive it - had the accident been caused on account of the negligence of the driver of the offending bus - is not under challenge.
5. In response, Sri.Arjun P.P. - learned counsel for the
claimants, argued that the afore contentions of the appellant have already been dealt with in detail by the learned Tribunal, when deciding Issue No.1. He argued that, when Ext.A5 - Final Report of the Police concluded unequivocally that it was the driver of the bus which caused the accident, a contra argument cannot be impelled by the appellant - as has been now done - when no other evidence has been led by them, in any manner
whatsoever. He then predicated that, as has been rightly found by the learned Tribunal, there is absolutely no evidence to establish either that the deceased was not wearing a ..5.. helmet, or that it was on account of such - it being not admitted - that his death was caused. He then took me through the medical evidence on record to assert that the cause of death was not solely head injury, but a cumulative effect of various other injuries sustained by him all over his body, consequent to the accident. He thus prayed that this appeal be dismissed.
6. I have considered the afore submissions on the
touchstone of the evidence and documents on record - copies of which have been handed over across the Bar by the learned counsel for the parties with the express consent that they can be acted upon by this Court without dispute.
7. As rightly argued by Sri.Arjun P.P., the learned Tribunal has considered both the afore recorded contentions of
the appellant under Issue No.1 in great detail. As correctly found by it, Ext.A5 - Final Report holds the driver of the offending bus to be exclusively responsible for the accident and he has been charged under Sections 279, 337 338 & 304 A of the Indian Penal Code (IPC). There is not even a whisper in Ext.A5, or in Ext.A1 - FIR, that the deceased had any role in causing the accident, or that he was negligent in any manner;
..6..
and obviously, going by the judgment in New India Assurance Co. Ltd v. Pazhaniammal [2013 (3) KLT 648], which has been adverted to by the learned Tribunal, law is now well settled that the Police Charge sheet is the prima facie and best evidence to establish negligence, especially when there is no contra-evidence lead or available.
8. That said, as again rightly found by the learned Tribunal, the evidence on record do not establish, even faintly,
that the deceased was not wearing a helmet. There is also nothing to show that he died solely consequent to head injury because he was not wearing the same; but, on the contrary,
the medical evidence, particularly Ext.A4 - Postmortem Certificate, establishes that he had sustained various other injuries also. In any event, wearing of helmet or otherwise by the deceased is a question of fact, which cannot be subjected to surmises or conjunctions; and unless it had been specifically pleaded and proved by the appellant before the learned Tribunal, a contention, as now porpoised before this Court, becomes impermissible.
..7.. Since no other contentions have been raised by the appellant in this appeal, I have no doubt that same only deserves to be dismissed. This appeal is thus dismissed, however, without making no order as to costs. Sd/- DEVAN RAMACHANDRAN, JUDGE ACR