Allowed

Baiju v. Vijayakumar

Kerala HC14 Feb 2017MACA/659/2010

Case brief

AI extract

What is this about?

The High Court allowed the appellant's appeal against the Motor Accidents Claims Tribunal's dismissal of a compensation claim. Finding the tribunal erred in relying on documents suggesting an injury during carpentry without a trial on the disputed facts of negligence, the Court set aside the order and remitted the matter for fresh consideration.

What did the court decide?

The impugned judgment of the Principal Motor Accidents Claims Tribunal was set aside and the matter was remitted for fresh consideration with both parties at liberty to adduce fresh evidence within si

Baiju Vs Vijayakumar — Motor Accident Claims | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.D.RAJAN

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TUESDAY, THE 14TH DAY OF FEBRUARY 2017/25TH MAGHA, 1938

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MACA.NO. 659 OF 2010 ( )

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AGAINST THE AWARD IN OP(MV) NO.617/2005 OF PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DATED 08-05-2009

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APPELLANT(S)/CLAIMANT:

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BAIJU, AGED 29 YEARS, S/O. SASIDHARAN, KAITHAVALAPPU, PANAKKALAKATH, P.O.BEYPORE, KOZHIKODE.

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BY ADV. SMT.K.V.RASHMI

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RESPONDENT(S)/RESPONDENTS:

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1. VIJAYAKUMAR, AGE AND FATHER'S NAME NOT KNOWN, NIRVRITHI, KEANGARATHOOT, NADUVATTOM POST, BEYPORE, CALICUT.

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2. THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, SILVER PLAZA BUILDING, I.G.ROAD, KOZHIKODE DISTRICT.

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R2 BY ADV. SRI.N.S.MOHAMMED USMAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.D. RAJAN, J. -----------------------M.A.C.A. No.659 of 2010

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Dated this the 14^th day of February, 2017

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J U D G M E N T

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---------------------

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The claimant in O.P.(M.V.) No.617/2005 of the Principal Motor Accidents Claims Tribunal, Kozhikode preferred this appeal against the dismissal of the above petition. Appellant's case is that on 12.09.2004 he was riding his motorcycle bearing No.KL-11-B-8937, when he reached at the place of occurrence, another scooter KL-11-S-6576 came from the opposite direction in a rash and negligent manner and both vehicles collided, as a result, the appellant sustained serious injuries. Immediately he was removed to hospital. In the circumstance, he approached the tribunal for getting compensation.

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The 2^nd respondent insurance company admitted the insurance of the vehicle and contended that the accident was due to the negligence of the appellant itself. In the trial court, the appellant did not adduce any oral evidence. His documentary evidence were marked as

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M.A.C.A. No.659 of 2010 2

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Exts.A1 to A3. In Ext.A2, the history of injury is written as mere fall. Tip of his index finger was deeply injured and it was sutured. The petitioner is a carpenter by profession. Considering these facts, the learned Tribunal opined that if there was collision between two vehicles, a prudent man can normally expect injury on other parts of his body. The learned tribunal dismissed the petition on the ground that the injury might have been occurred while doing his carpenter work with chisel. Being aggrieved by that, he preferred this appeal.

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Learned counsel appearing for the appellant contended that the documents produced in the trial court were not considered by the tribunal. In a motor accident claim petition, the injured is entitled to get a just compensation if he proves that he sustained injuries in a motor accident.

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In a claim petition onus is on the claimants to prove accident and compensation cannot be awarded in absence of proof. It is true that in a summary proceedings provided under S.169 of the Motor Vehicles Act, 1988 the

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M.A.C.A. No.659 of 2010 3

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claimant is not expected to prove her case like in any other civil cases. But, when the accident itself is questioned by the respondents and the involvement of the motor cycle is in question, the claimant is required to prima facie show before the Court that the vehicles involved was a motorcycle and a scooter and he sustained injuries in the accident while travelling in the said motorcycle. This position has been explained in Karnataka State Road Transport Corporation Vs. Smt. Laxmibai [2000 (4) KarLJ 276] which reads as follows:

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It is true that in a summarily civil proceedings, claimant is not expected to prove her case like in any other Civil Original proceedings. But when the accident itself is question by the respondents as to the involvement of their bus in question, the claimant is required to prima facie show before the Court that the bus involved was a KSRTC bus and that the bus in which she was travelling and she sustained injuries while travelling in the said bus.”

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It is well settled that a claimant can succeed

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in his claim only when he establishes that the accident

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M.A.C.A. No.659 of 2010 4

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had taken place on account of the negligence on the part of the driver of a motor vehicle. Where a person is proceeding just next to the pavement and a vehicle comes from the back and knocks down, that itself show the negligence of the driver. It is true that ordinarily the burden of proving negligence is on the person who alleges it. However, the circumstances of a particular case may speak for themselves and show negligence on the part of the driver of a vehicle. In these circumstances it will be the duty of the driver and owner of the vehicle to disprove negligence. Halsbury's Laws of England, 2^nd edition Vol.123 at page 167 reads thus:

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“An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence tells its own defence, the story so told being clear and unambiguous. To these case the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the

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M.A.C.A. No.659 of 2010 5

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defendant which if he is to succeed in his defence must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part.”.

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In order to establish negligence, the party has to show that the driver committed the breach of his duty which resulted in injury to his person and property. Another decision of the Supreme Court in Municipal Corporation, Delhi v. Subhagwanti [ 1966 ACJ 57] their lordships while discussing this principle observed thus:

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“ It is true that the normal rule is that it is for the plaintiff to prove negligence and not for the defendant to disapprove it. But there is an exception to this rule which applies where the circumstances surrounding the thing which caused the damage are at the material time exclusively under the control or management of the defendant or his servant and the happening is such as does not occur in the ordinary course of things without negligence on the defendant's part.

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In the instant case, the unfortunate accident

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M.A.C.A. No.659 of 2010 6

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happened while the motorcycle of the appellant reached at the place of occurrence and collided with another scooter which came from the opposite direction. When respondents dispute the accident, it is the duty of the appellant to prove that as a result of the rash and negligent driving by the rider of the scooter, the accident occurred. No oral evidence has been adduced by the appellant in the trial court to prove the negligence of the 1^st respondent. In the circumstance, the judgment of the Principal Motor Accident Claims Tribunal, Kozhikode is set aside. The matter is remitted to trial court for fresh consideration. Both parties are at liberty to adduce fresh evidence in the trial court. The learned tribunal is directed to dispose of the petition within a period of six months from the date of receipt of a copy of this judgment.

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Sd/- P.D. RAJAN JUDGE / True Copy / P.A. To Judge

Baiju v. Vijayakumar

Case brief

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Baiju v. Vijayakumar

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