IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2142 of 2008()
1. DR.K.NARAYANA PAI, CHELLANKAL HOUSE,
... Petitioner
Vs
1. ROBIN C. JOHNY, CHOORAMATHAYIL,
... Respondent
2. ALICE P. ABRAHAM, CHORAMATHAYIL,
3. THE UNITED INDIA INSURANCE CO. LTD.,
For Petitioner :SRI.A.K.HARIDAS
For Respondent : No Appearance
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :06/10/2008
O R D E R
J.B.Koshy & K.P.Balachandran, JJ.
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M.A.C.A.No.2142 of 2008
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JUDGMENT
Balachandran, J.
This appeal is filed by the petitioner in O.P.
(MV)No.2471/04 on the file of the Motor Accidents
Claims Tribunal, Kottayam, assailing the dismissal
of the aforesaid original petition.
2. According to the appellant/petitioner, at
about 8 p.m. on 29.3.2004 while he was riding his
motor bike bearing Reg.No.KL-7/AM 4232 from east to
west along the Mulanthuruthy-Arakkunnam road,
within the limits of Mulanthuruthy Police Station,
a Maruti Car bearing Reg.No.KL-7/6111, owned by the
second respondent and driven by the first
respondent in a rash and negligent manner, without
dimming its headlights, came from the opposite
direction and hit on his motor bike and thereby he
was thrown down to the road and he sustained
injuries to both his hands and right lower limb,
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contusion to the muscles of his right thigh and
contusion over right forearm. He alleged that
immediately he was taken to Varsha Hospital,
Mulanthuruthy where he was given first aid and he
was later taken to the Lakeshore Hospital, Kochi,
where he was admitted and treated for four days and
thereafter he continued OP treatment in the same
hospital for some time. According to him, he
suffered much pain and agony and sustained partial
disability on account of the injuries and has spent
considerable amounts for treatment and that the
accident occurred solely due to the rash and
negligent driving of the car by the first
respondent. Second respondent is the registered
owner of the car and employer of the first
respondent. It stood validly insured with the
third respondent Insurance Company at the time of
the accident. He claimed in all an amount of
Rs.1,50,000/- by way of compensation from the
respondents.
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3. Though respondents 1 and 2 entered
appearance, they did not file any written
statement. The third respondent insurer, on
permission having been obtained under Section 170
of the M.V. Act, filed written statement and an
additional written statement, wherein, the
contentions, inter alia, were that the accident
occurred not in the manner alleged, but that, at
the time of the occurrence, the appellant was
riding his motor bike in a rash and negligent
manner at an exorbitant speed through the wrong
side of the road and without lighting its headlight
and that was how the car happened to hit on the
motor bike and the accident occurred; that the
police charge sheeted the appellant and he appeared
before the Magistrate’s Court, Ernakulam and
pleaded guilty and was convicted; that the original
petition was filed in collusion with other
respondents; that, however, the injuries sustained
by the appellant/petitioner were very minor and
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that in any event, he is not entitled to any
compensation and the original petition is liable to
be dismissed.
4. During trial, on the side of the appellant/
petitioner, PWs 1 and 2 were examined and Exhibits
A1 to A10 were got marked and on the side of the
respondents Exhibits B1 to B3 were got marked. The
Tribunal considered the case in the light of the
above evidence, found that the accident occurred
solely due to the negligence of the appellant and
dismissed the original petition.
5. It is contended before us by the learned
counsel for the appellant that the Tribunal has not
appreciated the case in the proper perspective and
that evidence of PWs 1 and 2 should have been
accepted to find that the accident occurred on
account of the rash and negligent manner in which
the first respondent drove the car, which hit
against the motor bike of the appellant. It is the
case of the appellant that he was riding his motor
MACA 2142/08 5
bike from east to west along the Mulanthuruthy-
Arakkunnam Road at about 8 p.m. on 29.3.2004 and
the offending vehicle, namely, Maruti Car bearing
Reg.No.KL-7/6111, which was coming from the
opposite direction at an excessive speed without
dimming its headlights, hit against his motor bike.
6. Exhibit B3 is the copy of the final report
submitted by the Mulanthuruthy Police in Crime
No.73/04, registered in connection with the
occurrence involved in the case. As per the final
report, it is the appellant who was charge sheeted
for offences under Section 279 IPC read with
Sections 360 and 177 of the M.V. Act. He pleaded
guilty to the charge and was convicted by the
Magistrate. Exhibit B1 is the copy of the scene
mahazar prepared by the police in the course of
investigation. It shows the place of occurrence as
the tarred portion of the road that lies east-west,
precisely 137 cms. south from the northern end of
the tarred road. The appellant was to keep his
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side, which is the southern side of the road, as he
was proceeding to west along the said road.
Obviously, when it is shown that the accident
occurred at the northern most portion of the tarred
road, namely, 137 cms. south from the northern most
end of the road, it shows that the accident has
taken place by the motor bike ridden by the
appellant proceeding to the wrong side of the road.
The charge against the appellant is also
substantiated by the above fact. As per Exhibit B3
final report, the motor bike was being ridden by
the appellant without switching on its headlight,
though the time was 8 p.m. No acceptable evidence
has been adduced by the appellant to prove his
case.
7. It is worthy to note that PWs 1 and 2,
examined by the appellant to prove his case of
negligence on the part of the driver of the car,
are not witnesses in Exhibit B3 final report.
Further, it is strange that the appellant has not
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cared to enter the witness box to swear to his
case. The evidence tendered by PWs 1 and 2, in the
circumstances, was being rightly rejected by the
Tribunal.
8. Exhibit A1 is the copy of the private
complaint filed by the appellant before the
Additional Chief Judicial Magistrate’s Court,
Ernakulam against the first respondent alleging
that the accident occurred due to the negligent
driving of the car by the first respondent, which
hit against his motor bike. Exhibit B2 is the
report submitted by the police on 1.4.2004 stating
that investigation in the case is in progress
against the appellant. On submission of Exhibit B3
final report against the appellant, Exhibit A2
notice dated 31.10.2004 was served on the
appellant. However, the appellant did not file any
protest complaint pursuant thereto. The Tribunal,
which considered the above evidence, found that the
accident occurred on account of the appellant
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riding his motor bike to the wrong side of the road
even without switching on its headlight and he was
solely responsible for the accident taking place
and that he is not entitled to any damages for the
injuries sustained to him solely on account of his
negligence and dismissed the original petition.
There is absolutely no material for us to come to a
different conclusion than that arrived at by the
Tribunal. Consequently, concurring with the
findings of the Tribunal, this appeal deserves only
to be dismissed.
In the result, the appeal is dismissed.
(J.B.Koshy, Judge)
6th October, 2008
(K.P.Balachandran, Judge)
tkv