High Court Kerala High Court

Jessy Scaria vs A.U. Varghese on 27 May, 2008

Kerala High Court
Jessy Scaria vs A.U. Varghese on 27 May, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MFA.No. 671 of 2001(B)



1. JESSY SCARIA
                      ...  Petitioner

                        Vs

1. A.U. VARGHESE
                       ...       Respondent

                For Petitioner  :SRI.K.JAJU BABU

                For Respondent  :SRI.GEORGE CHERIAN (THIRUVALLA)

The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN

 Dated :27/05/2008

 O R D E R
                   J.B.KOSHY & P.N.RAVINDRAN, JJ.
                        --------------------------------------
                         M.F.A.No.671 OF 2001
                        -------------------------------------
                          Dated 27th May, 2008

                                 JUDGMENT

Koshy,J.

Husband of the first appellant died in a motor accident on

21.2.1996. He was riding his motor cycle along Muvattupuzha –

Kothamangalam public road from north to south. According to the

claimants, the motor cycle was hit by a lorry bearing registration No.KL-

D-2942 which came from the opposite side and the deceased was thrown

away into the road and on the way to the hospital he died. The lorry was

driven by the second respondent, owned by the first respondent and

insured by the third respondent. A compensation of Rs.6,00,000/= was

claimed. Tribunal calculated a compensation of Rs.2,73,400/=, but, did

not award any compensation as claimants were not able to prove that the

accident occurred due to the negligence of the second respondent.

These findings are questioned by the appellants. Even though the first

claimant (PW1) deposed in terms of the application, admittedly, she has

not seen the incident. PW2 was residing near the place of incident. He

was a lottery seller. According to him, hearing the sound, he went to the

spot and by the time he saw the lorry passing along the road towards

Kothamangalam side and some persons taking the deceased into a jeep

MFA.671/2001 2

and left the place. RW2 deposed that he was sleeping inside a tea

shop near the place and he woke up on hearing the sound. He went to

the accident spot, but, he did not see the lorry. Tribunal believed

RW2 and disbelieved PW2. Admittedly, RW2 was sleeping at the time

of incident. He came subsequently after the incident. After hittig the

deceased the lorry went away and PW2 saw the lorry going towards

Kothamangalam side. In Ext.A1 F.I.R only the matter of accident was

mentioned. It is not stated how the incident occurred. It is only

stated as a motor accident. Deceased was taken to the hospital. F.I.R

is only a starting point of investigation. After investigation, police

charge sheeted the second respondent driver. Merely because second

respondent driver is also from the locality, claimants cannot be denied

compensation. PW2 whose house is very near to the place of incident

is a natural witness. He saw the lorry passing towards

Kothamangalam side when he went outside immediately after the

accident and he also saw the deceased inside the jeep and left the

place. His evidence is believable than evidence of RW2 who was

sleeping inside the house. Since he was sleeping, he cannot say how

the incident occurred. Postmortem certificate only shows the injuries

MFA.671/2001 3

on the body. Even though it was mentioned by the Tribunal that the

counsel for the insurance company aruged that the deceased was

drunken, that was not mentioned in the postmortem certificate. When

first information statement was given, police came there, conducted

investigation and they found that the accident occurred when lorry

driven by the second respondent hit the motor cycle. The evidence of

PW2 coupled with Ext.A2 charge sheet etc. shows that the accident

occurred due to the negligence of the second respondent. A poor

hapless widow at young age maintaining two children may not be able

to gather much evidence. But, in this case, evidence of PW2 as well

as charge sheet proved that second respondent was negligent. First

and second respondents did not appear before the Tribunal to deny

the allegations against them. In these circumstances, we are of the

opinion that the compensation of Rs.2,73,400/= calculated by the

Tribunal should be awarded and deposited by respondents 1 to 3

jointly and severally. Since there is valid insurance coverage, third

respondent insurance company is directed to deposit the same with

7% interest from the date of application till its deposit. On deposit of

the amount, appellants 4 and 5 are allowed to withdraw Rs.7,500/=

MFA.671/2001 4

each. One third of the balance amount is allowed to be withdrawn by

the first appellant. Balance should be deposited in a nationalised

bank as fixed deposit in the name of 2nd and 3rd appellants enabling

them to withdraw the same in equal share on their attaining 21 years

of age.

The appeal is allowed.

J.B.KOSHY
JUDGE

P.N.RAVINDRAN
JUDGE

tks