The Oriental Insurance Co. Ltd. vs Ajayakumar

T.R. Ramachandran Nair, J.—The appeal is from the award of the M.A.C.T. Neyyattinkara, in O.P.(MV) No. 388 of 2004. This is a case where the claimant, a driver, who was earning Rs. 4,000/- per month, while walking along the foot path on the left side of Chenthitta near the Over Bridge road in Thiruvananthapuram was hit by a car bearing Reg. No. KLU-6276 driven by the 2nd respondent from behind. His leg was jammed between the car and an electric post beside the road and he sustained fracture both bones left leg.

After assessing various aspects, the Tribunal has awarded a total compensation of Rs. 1,33,066/-.

The learned counsel for the Insurance Company Sri A.R. George submitted that actually the accident was caused by the additional 4th respondent namely, the Kerala State Road Transport Corporation. It is submitted that the case of the appellant is that a K.S.R.T.C. bus hit the car from behind and in turn the pedestrian was knocked down by the car. It is therefore submitted that the driver of the car was not negligent in causing the accident. In these circumstances, the Managing Director of K.S.R.T.C. was impleaded as additional 4th respondent before the Tribunal. But the Tribunal has entered a finding against the Insurance Company in this case, which is not justified. The learned counsel for the respondents submitted that in Ext. A2 final report both the drivers of the car as also the bus are shown as the accused.

The learned counsel for the respondents (claimants) submitted that the Tribunal below examined the contents of Ext. A4, which is the report of inspection of the car KLU-6276 by the Assistant Motor Vehicle Inspector, who found that there is no evidence to show that any damage has been caused to the car. According to the learned counsel, the Tribunal is right in concluding that if the K.S.R.T.C. bus had hit the car from behind, there would have been damage to the car.

As far as this aspect is concerned, the learned counsel for the Insurance Company submitted that Ext. A4 is dated 07.01.2004 where as the accident occurred on 24.12.2003.

We have considered the rival submissions. It is true that the appellant in their written statement contended that the accident is one involving a K.S.R.T.C. bus KL-15-3689. According to them, the said bus hit against the rear side of the car strongly and the car lost its control and hit against the pedestrian.

In the written statement filed by the additional 4th respondent, namely, the Managing Director, K.S.R.T.C. it is stated that the car hit the applicant who fell down and was lying against the front wheel of the car and thereafter the driver of the car took the same and in the process, the K.S.R.T.C. bus happened to touch the car mildly and there was no negligence on the part of the driver of the bus.

Therefore, there were two versions before the Tribunal even on the part of the respondents, namely, the Managing Director of the K.S.R.T.C. as well as the Insurance Company.

It is seen from the records that no evidence has been adduced by the Insurance Company in support of their contention and no occurrence witnesses have been examined. Therefore, simply based on Ext. A2 final report, we will not be justified in concluding that the driver of the K.S.R.T.C. bus alone was negligent. The claimant''s evidence show that the driver of the car was negligent. PW 1 is the claimant who gave evidence before the Tribunal. It is seen from para 10 of the award of the Tribunal that in Ext. A1 F.I. statement given by the applicant on the next date of the accident, which was recorded from the Medical College Hospital, it is clearly stated that the accident was solely due to the negligence on the part of the driver of the car KLU-6276 while he was walking along the left side of the foot path of the road and there is not even any mention about the involvement of the K.S.R.T.C. bus in the accident. It is true that Ext. A2 will show that the drivers of both the vehicles have been shown as accused. The appellant has not taken any steps even to examine the driver of the car in support of their plea. It is in that context that the documentary evidence Ext. A4 was relied on by the Tribunal. No damage to the car is recorded in it. According to the learned counsel for the Insurance Company, the car might have got repaired between the date of the accident and the date of inspection. But regarding that there is no evidence before the Tribunal. Therefore, we cannot simply brush aside Ext. A4 as argued by the learned counsel for the Insurance Company.

The learned counsel for the Insurance Company vehemently submitted that there should be some remedy for the company to get back the compensation amount from the K.S.R.T.C. But as rightly pointed out by the learned counsel for the applicant, there is no evidence to prove negligence on the part of the K.S.R.T.C. bus driver and we are of the view that Ext. A2 will not come for the help of the Insurance Company. The entire burden was on them to prove that it was due to the negligence on the part of the bus driver that the accident occurred. Since there is no evidence on that aspect and no attempt to adduce evidence was also seen made, we cannot accede to the vehement argument raised by the learned counsel for the Insurance Company.

In that view of the matter, the appeal fails and is accordingly dismissed. No costs.