IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1671 of 2004()
1. BINU, S/O.ABRAHAM, VANIYAPURAYIL HOUSE,
... Petitioner
Vs
1. SUMATHI, XV/76, PERUMITTATH,
... Respondent
2. GIRISH, S/O.RAVINDRAN,
3. JOSEPH ALEX, CHEMMAZHAM, PANNOOR P.O.
4. LOVWIN SEBASTIAN, PAINAL, MRALA P.O.
5. ORIENTAL INSURANCE CO.LTD.,
For Petitioner :SMT.LEELAMMA GEORGE
For Respondent :SRI.RAJESH VIJAYAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :09/06/2008
O R D E R
M.N.KRISHNAN, J.
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M.A.C.A. No. 1671 OF 2004
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Dated this the 9th day of June, 2008
JUDGMENT
This appeal is preferred against the award passed by the Motor
Accident Claims Tribunal, Thodupuzha, in OP(MV) No.233/02. The
defeated claimant in OP(MV) 233/02 is the appellant before me. His
specific case is that he was travelling as a pillion rider in a motor vehicle
bearing registration No.KL 7S 6747 driven by the 2nd respondent in the
claim petition namely Girish. On account of the negligence of Girish and
the 4th respondent in the claim petition namely Lovwin Sebastian, the
accident took place. 3rd respondent in the claim petition is the owner of
the bike bearing registration No.KL6 8072. The 5th respondent in the claim
petition is the insurer of both vehicles. The appellant has claimed
compensation only from the 1st respondent, the owner of the motor vehicle
bearing registration No.KL 7S 6747 and its insurer the 5th respondent.
There was another case filed by the rider of the other bike as OP(MV)
101/02 without the junction of the present appellant as a party. The award
has been passed and no appeal is filed against the same. Since the
present appellant is not a party to the said proceeding, one cannot attribute
any negligence on him for not preferring the appeal. The Tribunal mainly
relied upon the first information statement which was given by the petitioner
in OP(MV) No.101/02 wherein there is an averment that the present
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appellant was the rider of the bike. Police after due investigation had
arrived at a conclusion that it was the 2nd respondent in OP(MV) No.233/02
who had driven the vehicle and filed a charge sheet against him. The said
person appeared before the criminal court, pleaded guilty and was
sentenced to pay fine. The Tribunal also arrived at a decision that the non
junction of the present petitioner in OP(MV) No.101/02 is not fatal to the
present. So sufficient confusion had already been created in this matter.
How to resolve it is the question before the court now.
2. So far as negligence aspect is concerned, when the law is set
in motion by giving first information statement, the law enforcing agency is
conducting an enquiry to find out the real fact and such an enquiry resulted
in filing a charge sheet against the 2nd respondent in OP(MV) No.232/02.
One cannot fall back and hold that the first information statement is a
magna carte and that has to be relied on. However, the first information
statement was only given by the other rider and it has nothing to do with
the present claimant. When such is the situation, over riding the judgment
of the criminal court and the charge sheet filed by the police it is not proper
to do otherwise. Unless there is acceptable and impeachable evidence the
Tribunal should not have jumped into a conclusion that it was the claimant
in OP(MV) No.233/02 who was riding the vehicle. Therefore, that matter
requires reconsideration. If necessary, parties are permitted to adduce
evidence in support of their respective contentions and the Tribunal is
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directed to arrive at a decision untrammelled by any of the observations
made in this judgment.
3. Since the claimant is a pillion rider and as position of law as
on today is that an Act only policy does not cover a pillion rider, the
Tribunal has to necessarily consider whether the pillion rider is liable to
indemnified by the Insurance Company and the said contention also can be
taken and considered by the Tribunal. If there is sufficient prayer against
the other rider of the bike that can also be considered by the Tribunal and
appropriate orders thereon shall be passed. In case of a situation where
the court finds that the accident had taken place on account of the
negligence of the claimant in OP(MV) 101/02 and 2nd respondent in OP
(MV) No.233/02 then necessarily, the claimant in OP(MV) No.101/02 has
contributed to the accident which will reduce his entitlement to the
compensation. In such a contingency the Tribunal is at liberty to make an
order directing him to redeposit the amount before the court and disburse it
to the appropriate party who is entitled to it. So the award in OP(MV)
No.233/02 is set aside and the matter is remitted back to the Tribunal for
consideration of the following terms:
(1) The court shall find who actually had driven the bike on the
date of accident.
(2) Whether the accident had taken place on account of the
negligence of the 2nd respondent in in OP(MV) No.233/02 or the 4th
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respondent in the claim petition or on account of the negligence of the
appellant.
(3) If it is proved that it was the appellant who was driving the
vehicle, the Insurance Company is directed to consider the plea of non-
coverage of the pillion rider in the vehicle.
(4) In case of a decision of contributory negligence appropriate
direction be given to the 4th respondent to reimburse the amount which he
had drawn in excess of his entitlement.
Parties are directed to appear before the Tribunal on 23.7.08.
M.N.KRISHNAN, JUDGE
vps
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