Remanded

Ramachandran v. Dr.Sivaprasad.S

Kerala HC18 Dec 2018MACA/532/2015

Case brief

AI extract

What is this about?

The High Court set aside the Motor Accidents Claims Tribunal award dismissing the claim due to delay and lack of oral evidence. It remitted the matter for fresh consideration, allowing both parties to adduce oral and documentary evidence to prove the accident and rash negligence.

What did the court decide?

Award set aside; matter remitted to MACT for fresh consideration with liberty to adduce oral and documentary evidence; parties directed to appear on 25.02.2019 and dispose within two months.

Ramachandran Vs Dr.Sivaprasad.S — Motor Accident Claims | Kerala HC (2018)

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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 18TH DAY OF DECEMBER 2018 / 27TH AGRAHAYANA, 1940

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MACA.NO. 532 OF 2015

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AGAINST THE AWARD IN O.P.(M.V.) NO.1699/2004 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ATTINGAL DATED 20-11-2012

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APPELLANT/APPLICANT :

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RAMACHANDRAN, AGED 70 YEARS, S/O.SIVARAM, ARANIA, UDAYAGIRI, CHEMPAZHANTHY P.O., THIRUVANANTHAPURAM DISTRICT.

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BY ADV. SRI.R.T.PRADEEP

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RESPONDENTS/RESPONDENTS :

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1 DR.SIVAPRASAD.S, S/O.N.SUKUMARAN, SARASWATHY VILASAM, KUMMALLOOR P.O., KOLLAM NOW RESIDING AT AKSHARA, 9/399 F, POTHENCODE, THIRUVANANTHAPURAM - 695 584.

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2 THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, ST.JOSEPH PRESS BUILDING, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 001.

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BY ADVS. SRI.V.N.MOHAN RAJ SRI.RAJAN P.KALIYATH

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.NO. 532 OF 2015

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JUDGMENT

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This appeal is preferred against the award in O.P.(M.V.) No.1699 of 2004 of the Motor Accidents Claims Tribunal, Attingal by the injured. Appellant sustained injuries in a motor accident on 14.01.2004 at 8.15 p.m. and the Motor Accidents Claims Tribunal dismissed the claim petition on the ground that there was a delay of two months in reporting the accident to the Police. The appellant also failed to prove that the accident was due to the rash and negligent driving of the driver of the vehicle. Being aggrieved by that, he preferred this appeal.

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Appellant's case in the lower court was that on 14.01.2004 at 8.15 p.m., he was waiting for bus at Udayagiri bus stop, at that time a Maruthi car KL-01/Z-9737 driven in a rash and negligent manner through PothencodeSrekariyam public road hit against him, as a result he sustained serious injuries. The driver cum owner contested the matter and denied the rash and negligent driving of the vehicle. The insurer denied the validity of insurance.

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MACA.NO. 532 OF 2015

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Claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 to A12.

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Appellant contended that the delay in filing the FIR is not a reason to deny compensation to the victim in a motor accidents claim petition. On 14.01.2004, he was admitted at Medical College Hospital, Thiruvananthapuram and discharged on 17.01.2004. Immediately after that, he filed a petition before the Sub Inspector of Police, Kazhakoottam. After investigation, Police laid charge before Court. Ignoring the final report, the learned Tribunal dismissed the claim petition. Hence he prays to award just compensation.

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Learned counsel appearing for the 1^st respondent contended that there was no accident as alleged by the appellant. In the circumstance, the Tribunal dismissed the claim petition and no interference is necessary. Learned counsel appearing for the insurer contended that the policy was taken after the accident.

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In a motor accident claim case, injured has to

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adduce evidence to prove the rash and negligent act of the

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MACA.NO. 532 OF 2015

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driver of the vehicle. Only when the rash and negligent act of the driver is proved, 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 driver to the injured. Thus the ingredients are (1) A legal duty on the part of one driver towards injured to exercise care in such conduct of the driver as falls within the scope of the duty (2) Breach of that legal duty (3) Consequential damages to injured. 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

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MACA.NO. 532 OF 2015

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on the circumstance of each case. While in determining the standard of care, the magnitude of the risk to which other persons are exposed and the importance of the object to be attained by the dangerous form of activity are relevant.

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On a perusal of the documents, it is found that

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Kazhakootam Police registered Crime No.129 of 2004 under Sections 279, 337 and 338 of the Indian Penal Code. Ext.A1 is the FIR, Ext.A2 is the Scene Mahazar, Ext.A3 is the Vehicle Mahazar and Ext.A4 is the charge sheet. Ext.A5 wound certificate shows that the appellant sustained injuries in a motor accident and Ext.A6 is the discharge summary card. But no oral evidence has been adduced by the claimant before the Tribunal to show that he sustained injuries in a motor accident due to the rash and negligent act of the driver of the vehicle. It is the duty of the claimant to prove that he sustained injuries in a motor accident, then only, the Tribunal get jurisdiction to award compensation. In the circumstance, the finding of the Motor Accidents Claims Tribunal, Attingal is set aside and the matter is remitted to the Tribunal for fresh consideration. Both parties are

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MACA.NO. 532 OF 2015

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directed to appear before the Motor Accidents Claims Tribunal, Attingal on 25.02.2019 and they are at liberty to adduce both oral and documentary evidence in the lower court. The Tribunal shall dispose of the matter within a

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period of two months from the date of their appearance.

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Sd/- P.D. RAJAN, JUDGE

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/True Copy/

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P.A. To Judge

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Ramachandran v. Dr.Sivaprasad.S

Case brief

What is this about?

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Ramachandran v. Dr.Sivaprasad.S

Case brief

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