IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 248 of 2006()
1. REGI, S/O. THANKAPPAN RESIDING AT
... Petitioner
Vs
1. M. ELANGOVAN, S/O. MARIMUTHU, 68,
... Respondent
2. JOSE @ SUNNY,
3. THE BRANCH MANAGER, THE NEW INDIA
4. V.P. SURESH, VADAKKEPUTHENPURAYIL HOUSE
5. THE BRANCH MANAGER,
For Petitioner :SMT.ANNIE PAUL
For Respondent :SRI.P.JAYASANKAR
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :23/11/2009
O R D E R
P.R. RAMAN &
P.R. RAMACHANDRA MENON, JJ.
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M.A.C.A. No. 248 of 2006
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Dated, this the 23rd day of November, 2009
J U D G M E N T
P.R. Raman, J.
Appellant is the claimant in OP(MV) 1948/2001 on the file of the
MACT, Muvattupuzha. He was riding a Kinetic Honda scooter and
proceeding in the Aluva – Munnar road towards west. A motor cycle
coming from the opposite direction, overtook a jeep and hit against the
vehicle of the appellant, as a result he fell down and sustained injuries,
claiming an amount of Rs.3,00,000/- by way of compensation.
2. The evidence consists of oral testimony of PWs 1 to 3,
Exts.A1 to A8 and Case Diary is marked as Ext.X1. The Tribunal, on
appreciation of the entire evidence adduced in the case found that no
negligence can be attributed on the part of the driver of the motor cycle.
The application was dismissed, against which this appeal is filed.
Learned counsel appearing for the appellant contended that at the point
of accident, the road was of 6.80 mts. width and the accident spot was
2.06 mts. from the southern tarred end. It is contended therefore that
the motor cycle was on the wrong side. It is also contended that the
evidence of PW1 to 3 ought to have been accepted by the Tribunal. Yet
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another contention on the part of the appellant is that when the vehicle
was overtaking another vehicle, the rider should have taken care that no
other vehicle came from the opposite direction. These are the main points
to contend that the accident occurred as a result of negligence on the part
of the rider of the motor cycle.
3. PW2 was not having a valid driving licence and he was
imposed with a fine for driving the vehicle without proper licence. When
he gave statement before the Police [Ext.X1(a)], it is recorded therein that
the Kinetic Honda (Scooter) was ridden by ‘Jayan’ and the motor cycle
was ridden by ‘Jose’ and that Jayan did not sustain any injuries.
Obviously since PW2/appellant did not have a licence, for fear of being
implicated in the criminal case, he wanted to say that the vehicle was not
being ridden by him; since at that time he was more concerned to get
himself absolved from any criminal case. It was later, a petty case was
charged against him and paid the fine and later, when he gave evidence
before the Court, he gave a totally different version. In this circumstance,
the Tribunal did not choose to accept the evidence of PW2 on its face
value.
4. PW3 is stated to be an occurrence witness. He was a sales
man in a shop near the occurrence place. According to him, the scooter
came from east towards west. A bullet motor cycle proceeding from the
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3
west, over took a jeep and hit the scooter. Both the vehicles overturned to
the southern side. The rider of the bike did not sustain any injury. He
stated that the accident occurred due to the negligence of the rider of the
motor cycle. PW3 was confronted with the statement given by him to the
Police, wherein it is recorded that the jeep was on northern side of the
road and was not moving, while the motor cycle coming from the west, on
seeing the Kinetic Honda coming from the opposite direction, applied the
brakes and hit at the other vehicle involved. If this is the first statement
given by him to the police, the version given by him much later while
examining as a witness before the MACT, which is inconsistent with his
earlier statement, can’t be accepted as reliable.
5. Even if the statement given by him before the police cannot
be accepted as a piece of evidence and that the scooter was being ridden
by a person who had no licence, still there was a distance of 2.06 mts. on
the left side of the rider and if he had turned his scooter little further
towards left side, this accident could have been averted. Though the
learned counsel for the petitioner vehemently contended that, while
overtaking a vehicle, one should see that no vehicle came from the
opposite direction, it must be remembered that the jeep was lying parked
and not a moving one. Secondly, it is not the case of the appellant that
the road was not having sufficient width or that the vehicle coming from
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the opposite direction could not be seen from at least 100 mts. away.
Therefore, the fact that the motor cycle had gone to the other side is of
not much consequence when the vehicle was overtaking another vehicle
parked on the road and it cannot be said that the rider of the motor cycle
was negligent. On weighing the entire evidence as a whole, the finding of
the Tribunal cannot be said to be perverse. The Sub Inspector of Police
who was examined as PW1 on the side of the appellant, has also given
evidence that he was not in a position to fix negligence on the part of both
the riders and it was accordingly, that the matter was referred. We do not
find any reason to interfere with the finding and reasoning given by the
Tribunal. There is no merit in the appeal. The Appeal is dismissed.
P.R. RAMAN, JUDGE
P. R. RAMACHANDRA MENON, JUDGE
dnc