IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1585 of 2004()
1. OUSEPH @ UNNINEELAN, KOZHIMALAKUNNEL,
... Petitioner
Vs
1. E.O.KUTTAPPAN, THARAYIL HOUSE,
... Respondent
2. AJITHA T.K., THARAYIL HOUSE,
3. THE NATIONAL INSURANCE CO.LTD.,
For Petitioner :SRI.ABRAHAM MATHEW (VETTOOR)
For Respondent :SMT.SARAH SALVY
The Hon'ble MR. Justice V.RAMKUMAR
Dated :30/06/2009
O R D E R
V. RAMKUMAR , J.
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M.A.C.A. No. 1585 of 2004
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Dated this the 30th day of June, 2009.
JUDGMENT
The appellant who was the applicant in O.P. (M.V) No.
732 of 1996 on the file of the Motor Accident Claims
Tribunal, Pala, challenges the award dated 16.02.2004
passed by the M.A.C.T dismissing his application.
2. The case of the appellant can be summarised as
follows:-
On 14.01.1996, the appellant was walking along the
northern side of the Thekkummuri-Andoor road. While so, a
jeep bearing registration No. KLF 4624 belonging to the 2nd
respondent and driven by the 1st respondent came from the
opposite direction in a rash and negligent manner and
knocked down the appellant who was thrown off the road
and who had sustained serious injuries. He was
immediately taken to the Taluk Head Quarters Hospital,
Pala. After first aid, he was referred to the Medical College
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Hospital, Kottayam. He had sustained compound supra
condylar fracture of right femur and his right knee cap was
torn and its inside was exposed. His right leg was put in
plaster cast. Even after two months, the fractures did not
unite properly. He was a skilled worker getting Rs.125/-
per day. Hence the claim for Rs.2,07,500/- limited to
Rs.75,000/-.
3. Respondents 1 and 2 disputed the accident as well
as the involvement of the jeep belonging to the 2nd
respondent. They contended that the case was a false case
foisted against the respondents.
4. Before the Tribunal, the applicant was examined as
PW1 and an independent witness was examined as PW2.
Exts.A1 to A7 were got marked. On the side of the
respondents, the 1st respondent Kuttappan was examined as
RW1 and Exts. B1 and B2 were got marked.
5. The learned counsel appearing for the appellant
submitted that the appellant was actually knocked down by
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the jeep belonging to the 2nd respondent herein and driven
by the 1st respondent and that they were stating utter
falsehood before the Tribunal below.
6. I cannot agree. It is true that the appellant lodged
a complaint before the Kidangoor police which registered a
case as crime No. 8 of 1996 against respondents 1 and 2
herein. After the investigation, the police referred the case
as mistake of fact since the appellant was unable to identify
either the vehicle or its driver. Aggrieved by the refer
report, the appellant preferred a protest complaint before
the Judicial First Class Magistrate, Ettumanoor which was
tried as S.T. No. 1681 of 1997. After trial, the learned
Magistrate acquitted both the respondents 1 and 2 herein
holding that the appellant could not identify the vehicle or
the driver. It was thereafter that the appellant preferred
the claim before the M.A.C.T. Apart from himself, he
examined PW2 as an eye witness to the occurrence. The
Tribunal has observed that PW2 was not a witness
M.A.C.A. No. 1585/2004 : 4 :
examined before the Magistrate in S.T. No. 1681 of 1997.
When both the police as well as the criminal court had
found that the appellant had not adduced any satisfactory
evidence to show that the 2nd respondent drove the jeep in
question or that the jeep in question was owned by the 1st
respondent or further that the jeep bearing registration No.
KLF 4624 was the jeep involved in the occurrence, no
liability could be saddled on respondents 1 and 2.
Consequently, the 3rd respondent insurer also had no
liability to indemnify the insured for an accident in which
the vehicle belonging to the 1st respondent was not
involved. Such being the evidence before the Tribunal, I
see no reason to interfere with the findings recorded by the
Tribunal below. This appeal is accordingly dismissed.
Dated this the 30th day of June, 2009.
V. RAMKUMAR, JUDGE.
rv
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