Remanded

Leela and Others v. P.K.Moideen and Others

Kerala HC14 Nov 2018MACA/1169/2009

Case brief

AI extract

What is this about?

The High Court allowed the appeal against the Motor Accidents Claims Tribunal's dismissal of a claim petition. Setting aside the lower award for failing to account for the police Final Report evidencing negligence, the Court remitted the matter to the Tribunal for fresh consideration of the claimant's liability proof.

What did the court decide?

The dismissal of the claim petition is set aside. The matter is remanded to the Tribunal for fresh consideration with liberty to adduce evidence.

Leela and Others Vs P.K.Moideen and Others — Motor Accident Claims | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.D.RAJAN

¶4

WEDNESDAY,THE 14TH DAY OF NOVEMBER 2018 / 23RD KARTHIKA, 1940

¶5

MACA.NO. 1169 OF 2009

¶6

AGAINST THE AWARD IN O.P.(M.V.) NO.1063/2002 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA DATED 27-12-2008

¶7

APPELLANTS/PETITIONERS:

¶8

1 LEELA, W/O LATE THOMAS, KALLOOKKARAN HOUSE,PALAMATTOM KARA, KEERAMPARA VILLAGE.

¶9

2 BINCY, D/O. LATE THOMAS, REPRESENTED BY HER MOTHER THE IST APPELLANT.

¶10

3 BINITHA, D.O. LATE THOMAS, REPRESENTED BY HER MOTHER THE IST APPELLANT.

¶11

BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.R.JAYAKRISHNAN

¶12

RESPONDENTS/RESPONDENTS :

¶13

1 P.K.MOIDEEN, S/O KUNJUMOHAMMED, PARATHAZHATH HOUSE, NELLIKUZHI, KOTHAMANGALAM.

¶14

2 DENNIS, S/O. JACOB, PAINGAPPILLIL HOUSE, CHATTUPARA KARA, KEERAMPARA.

¶15

3 THE ORIENTAL INSURANCE COMPANY LTD., MUVATTUPUZHA.

¶16

BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SRI.K.R.VINOD SRI.K.P.WILSON (KOTHAMANGALAM)

¶17

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶18

MACA.NO. 1169 OF 2009

¶19

¶20

JUDGMENT

¶21

This appeal is preferred against the award in O.P.(M.V.) No.1063 of 2002 of the Motor Accidents Claims Tribunal, Muvattupuzha by the legal representative of the deceased Thomas. On 05.05.2002 at 11.30 p.m., the deceased was walking through the side of Palamattom- Chattupara public road, when he reached at the place of occurrence, a lorry KL-U-1605 driven in a rash and negligent manner knocked down him, as a result he sustained serious injuries, immediately he was removed to the hospital, on the way to hospital, he succumbed to the injuries. The accident was due to the rash and negligent driving of the vehicle by its driver. The learned Tribunal dismissed the claim petition. Being aggrieved by that, the legal representatives preferred this appeal.

¶22

In the lower court, the driver and owner of the lorry were ex parte. The insurer admitted the insurance of the vehicle, but disputed the accident. Claimants evidence consists of oral testimony of PW1 and PW2 and Exts.A1. Respondents evidence consists of oral testimony of RW1 and

¶23

MACA.NO. 1169 OF 2009

¶24

¶25

Exts.B1 to B6. The 3^rd party document was marked as Ext.X1.

¶26

Learned counsel appearing for the appellant contended

¶27

that the learned Tribunal dismissed the claim petition on the ground that the Final Report was not produced before that court. The case diary in Crime No.238 of 2002 of Kothamangalam Police Station was marked as Ext.X1 which includes the Final Report. Ignoring the Final Report submitted by the investigating officer before the Judicial First Class Magistrate Court, Kothamangalam, the learned Tribunal dismissed the claim petition, which is illegal. The dependants of the deceased are entitled to get just amount as compensation.

¶28

Learned counsel appearing for the insurer contended that the appellant has to prove the accident and rash and negligent driving of the offending vehicle. In the absence of any evidence, it was treated as unnatural death and the learned Tribunal declined to award any compensation.

¶29

In a motor accident claim case, injured has to adduce evidence to prove the negligent act of the driver of the vehicle. Only when the rash and negligent act of the driver is proved,

¶30

MACA.NO. 1169 OF 2009

¶31

¶32

then only the liability of the tortfeasor arises. Negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by defendant to the plaintiff. Thus the ingredients are (1) A legal duty on the part of one defendant towards plaintiff to exercise care in such conduct of the defendant as falls within the scope of the duty (2) Breach of that legal duty (3) Consequential damages to plaintiff. Therefore, negligence is pure mental inadvertence and it is nothing more than carelessness. Such carelessness may exist in any degree and varies directly with the risk to which other persons are exposed by the act in question. In this situation, the main question is what standard of care is required by law where duty to take care exists? The law does not demand the highest degree of care of which human nature is capable. The law demands a reasonable care in view of the extent and possibility of the risk. Therefore, the standard of care established by the law is that of a reasonable man in identical circumstance. What amounts to reasonable care is a question of fact depending on the circumstance of each case. While in determining the standard of care, the magnitude of the risk to

¶33

MACA.NO. 1169 OF 2009

¶34

¶35

which other persons are exposed and the importance of the object to be attained by the dangerous form of activity are relevant.

¶36

I have perused Ext.X1 Case Diary in Crime No.238 of 2002 of the Kothamangalam Police station. Both parties submitted that after filing the First Information Report before the Judicial First Class Magistrate Court, Muvattupuzha that Court was bifurcated and a new court was started at Kothamangalam. The investigating officer submitted the final report before the Judicial First Class Magistrate Court, Kothamangalam and that is clear from Ext.X1. When the insurer applied for getting the documents from that court, it was reported that such a final report is not pending before that court. The report received from Judicial First Class Magistrate Court, Kothamangalam was marked as Ext.B6. The investigating officer was examined in the lower court as PW1. Another occurrence witness was examined as PW2 in the lower court. A perusal of Ext.X1, Ext.B6 and oral evidence of PW1 and PW2, it is found that the initial burden of the claimant was not properly discharged in the lower court at the

¶37

MACA.NO. 1169 OF 2009

¶38

¶39

time of disputing the claim petition. It is the primary responsibility of the claimant to prove that the accident was occurred due to the rash and negligent driving of the vehicle by its driver. In the absence of such evidence, the learned Tribunal dismissed the claim petition. But in view of Ext.X1, it is found that the Police conducted the investigation and filed a Final Report before the Court. If that be the position, the finding of the Tribunal is liable to be set aside and the matter has to be remitted to the Tribunal for fresh consideration.

¶40

In view of the above said discussion, the dismissal

¶41

of the claim petition is hereby set aside. Both parties are directed to appear before the Tribunal on 21.01.2019 and they are at liberty to adduce both oral and documentary evidence before the Tribunal. The claimants are directed to give fresh notice to the driver and owner of the vehicle. The learned Tribunal shall dispose of the matter within a period of six months from the date of such appearance.

¶42

Sd/-

¶43

¶44

P.D. RAJAN, JUDGE /True Copy/ P.A. To Judge

Leela and Others v. P.K.Moideen and Others

Case brief

What is this about?

What did the court decide?

Leela and Others v. P.K.Moideen and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Kadeeja.T Vs Rafeeque

Radhakrishnan Vs Rajan Nair

Natarajan Vs Vikas @ Ambily

Bincy Vs M.K.Usef

Chithra Vs M.K.Usef

The Oriental Insurance Co.Ltd Vs Minto Dominic P