O.A.Jolly vs Kumari Ansha Bai.K on 26 August, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 1719 of 2008()


1. O.A.JOLLY, 37 YEARS, S/O.ANTONY
                      ...  Petitioner

                        Vs



1. KUMARI ANSHA BAI.K.,
                       ...       Respondent

2. JACOB JOHN, S/O.JOHN, SANU NIVAS

3. MANU.M.JOY,

4. ORIENTAL INSURANCE CO.LTD.,

5. UNITED INDIA INSURANCE

                For Petitioner  :SRI.T.K.RADHAKRISHNAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :26/08/2008

 O R D E R
                J.B.KOSHY & THOMAS P.JOSEPH, JJ.
                        --------------------------------------
                       M.A.C.A.No.1719 OF 2008
                        -------------------------------------
                        Dated 26th August, 2008

                                 JUDGMENT

Koshy,J.

The appellant/claimant sustained fracture of tibia and fibula

in a motor accident. According to him, the accident occurred while he

was travelling in a motor cycle. He alleges negligence on the part of the

car driver as well as the rider of the motor cycle. Only the claimant

himself was examined as the witness. In the wound certificate as well as

police records it is stated that the claimant himself was riding the

vehicle. The wound certificate also shows that he was the rider of the

motor cycle. Even if he was a pillion rider, he was not covered by the

insurance policy. Merely because the accident occurred in a collision

between two vehicles, it cannot be presumed that the car driver is

negligent unless there is some dependable evidence. The accident is

alleged to have occurred on 3.2.2001. F.I.R. was filed only on 25.2.2001.

The Tribunal has considered the available evidence and held as follows:

“Claim petition is filed attributing rashness
and negligence as against the 3rd respondent, the
rider of the motor cycle. Ext.A12 is the copy of
complaint in respect of the incident filed by the
claimant at the earliest opportunity before the
police. Ext.A12 was filed accusing the car driver

MACA.1719/2008 2

alone as responsible for causing the accident.
During cross-examination, petitioner has also
given yet another version showering the
entire blame on the car driver. Soon after the
accident, petitioner was admitted in
Government Hospital, Kollam. In Column 10
of Ext.A5 copy of wound certificate issued
from the hospital, the history and cause of
injury is shown as on hitting a car while riding
a motor cycle. Presence of smell of alcohol in
breath is also seen noted. In the claim
petition, the rider is changed as the pillion
rider.”

In the above circumstances, the Tribunal came to the conclusion that

the car driver was not negligent and found that no compensation can

be awarded as negligence of the drivers was not proved and it was

also noticed that as per the earlier documents the claimant himself

was riding the motor cycle. In the circumstances of the case, we are

of the view that no interference is required in the impugned award.

The appeal is dismissed.

J.B.KOSHY
JUDGE

THOMAS P. JOSEPH
JUDGE

tks