IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1184 of 2005()
1. K.RAVEENDRAN, AGED 60 YEARS,
... Petitioner
Vs
1. C.SUGUNAMMA, 35/717,
... Respondent
2. VIJAYA KUMAR, S/O.KOCHUNNI KARTHA,
3. THE ORIENTAL INSURANCE COMPANY LTD.,
For Petitioner :SRI.R.SUDHISH
For Respondent :SRI.MATHEWS JACOB (SR.)
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :14/07/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A.No.1184 OF 2005
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Dated this the 14th day of July, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under Section 173 of Motor Vehicles Act, the
claimant in O.P.(MV)No.1647/1996 on the file of Motor Accidents
Claims Tribunal, Ernakulam challenges the judgment and award of the
Tribunal dated June 22, 2002 dismissing the O.P.
2. The facts leading to this appeal in brief are these :
The claimant was aged 50 at the time of the accident and was
employed as Assistant Sub Inspector of Police earning Rs.4,675/- per
month. On July 31, 1995 at about 8.15 a.m., while he was pillion
riding on the motor cycle bearing Reg.No.KL-7G-6807 along Banerji
Road, Ernakulam, the second respondent who was riding the motor
cycle suddenly swerved the motor cycle without proper care as a result
of which the right leg of the claimant was trapped inside the back
wheel of the motor cycle causing severe injuries to him. The accident
occurred due to the negligence of the second respondent. First
respondent as the owner, second respondent as the rider and third
MACA.No.1184/2005 2
respondent as the insurer of the offending motor cycle are jointly and
severally liable to pay compensation to the claimant.
3. Respondents 1 and 2, the owner and the rider of the
offending motor cycle remained absent and were set ex parte by the
Tribunal. The third respondent the insurer of the offending motor cycle
filed a written statement denying the liability.
4. Claimant was examined as PW1 and Exts.A1 to A9 were
marked on his side. On the side of the contesting third respondent,
Exts.B1 and B2 were marked. The Tribunal on an appreciation of
evidence found that the claimant has failed to prove any negligence on
the part of the second respondent and that therefore claimant is not
entitled to any compensation from the respondents and dismissed the
O.P. . The claimant has now come up in appeal challenging the said
finding of the Tribunal.
5. Heard the counsel for the claimant and the counsel for the
Insurance Company.
6. The following point arise for consideration :
Whether the finding of the Tribunal
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that the claimant himself was negligent in
causing the accident and that there is no
negligence on the part of the second respondent
and consequently dismissing the O.P. can be
sustained ?
7. We have gone through the evidence of PW1 and Exts.A1 to
A7 and Exts.B1 and B2. It is pertinent to note that the police did not
charge any case against the second respondent. Ext.B1 is the
photocopy of the final report relating to the criminal case. Ext.A1 is
the photocopy of the FIR. It is seen from these documents that the
right leg of the claimant accidentally went under the rear wheel of the
motor cycle and sustained the injury. In an attempt to prove the
incident, claimant examined PW2, an alleged eye witness to the
incident. The Tribunal has chosen to disbelieve his evidence. On
going through his evidence, we find no reason to come to a different
conclusion.
For all these reasons, we find no reason to interfere with the
finding of the Tribunal that there was no negligence on the part of the
second respondent and that the accident was caused due to the
MACA.No.1184/2005 4
negligence of the claimant himself. It follows that he is not entitled to
any compensation. Therefore, we find no merit in this appeal and the
same has to be dismissed.
In the result, the appeal is dismissed. No costs.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
sv.
MACA.No.1184/2005 5