IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 317 of 2000()
1. GOPALAKRISHNAN
... Petitioner
Vs
1. HARI NARAYANAN N. KAMAL
... Respondent
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :SRI.P.JAYASANKAR
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :13/10/2006
O R D E R
THOTTATHIL B. RADHAKRISHNAN, J.
=====================
M.F.A. Nos. 311 & 317 of 2000.
=====================
Dated this the 13th day of October, 2006
O R D E R
These two appeals arise from an accident that occurred on
8.9.1989. Scooter No. KRK 9596 and scooter No. KBF 7586
collided. Petitioner in O.P. (MV) No. 37 of 1995 was riding the
scooter No. KRK 9596 and the petitioner in O.P. (MV) No. 36 of
1995 was the pillion rider of that scooter. Both of them sued the
owner, driver and insurer of the scooter No. KBF 7586
attributing negligence exclusively on the person who was riding
that scooter.
2. The owner, driver etc. filed pleadings but did not
tender any evidence. The claimants gave evidence as PW1 &
PW2. The insurer did not obtain leave under Section 170 of the
Motor Vehicles Act, 1988. I notice this, to be reminded on the
limited scope of the defence of the insurer in this case.
3. On record was the scene mahazar and the FIR, as
also, Ext. A17 judgment of the criminal court. The petitioner in
M.F.A. Nos. 311 & 317 of 2000 -2-
OP(MV) No.37/1995 was charge sheeted leading to his acquittal
by the criminal court. Paragraph 8 of the judgment of the
Criminal court, whatever be its evidentiary value, tends to show
that even the criminal court has taken the view that the driver of
the scooter No.KBF 7586 would have been negligent. Going by
the scene mahazar, it appears that the accident happened while
the petitioner in O.P.(MV) No.37/1995 was overtaking a
stationary lorry and was hit by scooter No.KBF 7586 which was
coming from the opposite direction. The scene mahazar also
appears to suggest, at least prima facie, that the petitioner in
O.P.(MV) No.37/1995 who was riding the scooter No. KRK 9596
cannot be mulcted with liability. Corroborating these are the
testimonies of PWs 1 & 2. In the absence of any contra-evidence,
in my view, the finding on the question of negligence by the
Tribunal would require a second look at the hands of this Court.
4. The Tribunal has also seriously erred in acting on
Exts. B1 and B2 as if they contained findings of the Tribunal
regarding negligence. They are merely awards passed by The
M.F.A. Nos. 311 & 317 of 2000 -3-
Tribunal, on claim petitions filed by the rider and pillion rider of
the scooter No. KRK 9596, on settlement between the respective
claimant and the insurer of the vehicle No. KRK 9596 which the
petitioner in O.P. (MV) No. 36/95 was riding. There is no finding
of negligence in those awards. Nor were those awards passed
with the consent of the petitioner in O.P. (MV) No. 37 of 1995.
On the basis of what is aforesaid, it appears to be
abundantly necessary that the insurer in this case is given an
opportunity to find out whether these cases could be settled out
of court. To provide an opportunity to do so, with the consent of
the appellant and the contesting respondent insurer, these
matters are adjourned to be listed in the Adalat of the High
Court Legal Service Committee on 28.10.2006. The parties will
appear before the Adalat with their respective counsel on that
day.
THOTTATHIL B. RADHAKRISHNAN,
JUDGE.
csl
M.F.A. Nos. 311 & 317 of 2000 -4-