IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 671 of 2001(B)
1. JESSY SCARIA
... Petitioner
Vs
1. A.U. VARGHESE
... Respondent
For Petitioner :SRI.K.JAJU BABU
For Respondent :SRI.GEORGE CHERIAN (THIRUVALLA)
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :27/05/2008
O R D E R
J.B.KOSHY & P.N.RAVINDRAN, JJ.
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M.F.A.No.671 OF 2001
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Dated 27th May, 2008
JUDGMENT
Koshy,J.
Husband of the first appellant died in a motor accident on
21.2.1996. He was riding his motor cycle along Muvattupuzha –
Kothamangalam public road from north to south. According to the
claimants, the motor cycle was hit by a lorry bearing registration No.KL-
D-2942 which came from the opposite side and the deceased was thrown
away into the road and on the way to the hospital he died. The lorry was
driven by the second respondent, owned by the first respondent and
insured by the third respondent. A compensation of Rs.6,00,000/= was
claimed. Tribunal calculated a compensation of Rs.2,73,400/=, but, did
not award any compensation as claimants were not able to prove that the
accident occurred due to the negligence of the second respondent.
These findings are questioned by the appellants. Even though the first
claimant (PW1) deposed in terms of the application, admittedly, she has
not seen the incident. PW2 was residing near the place of incident. He
was a lottery seller. According to him, hearing the sound, he went to the
spot and by the time he saw the lorry passing along the road towards
Kothamangalam side and some persons taking the deceased into a jeep
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and left the place. RW2 deposed that he was sleeping inside a tea
shop near the place and he woke up on hearing the sound. He went to
the accident spot, but, he did not see the lorry. Tribunal believed
RW2 and disbelieved PW2. Admittedly, RW2 was sleeping at the time
of incident. He came subsequently after the incident. After hittig the
deceased the lorry went away and PW2 saw the lorry going towards
Kothamangalam side. In Ext.A1 F.I.R only the matter of accident was
mentioned. It is not stated how the incident occurred. It is only
stated as a motor accident. Deceased was taken to the hospital. F.I.R
is only a starting point of investigation. After investigation, police
charge sheeted the second respondent driver. Merely because second
respondent driver is also from the locality, claimants cannot be denied
compensation. PW2 whose house is very near to the place of incident
is a natural witness. He saw the lorry passing towards
Kothamangalam side when he went outside immediately after the
accident and he also saw the deceased inside the jeep and left the
place. His evidence is believable than evidence of RW2 who was
sleeping inside the house. Since he was sleeping, he cannot say how
the incident occurred. Postmortem certificate only shows the injuries
MFA.671/2001 3
on the body. Even though it was mentioned by the Tribunal that the
counsel for the insurance company aruged that the deceased was
drunken, that was not mentioned in the postmortem certificate. When
first information statement was given, police came there, conducted
investigation and they found that the accident occurred when lorry
driven by the second respondent hit the motor cycle. The evidence of
PW2 coupled with Ext.A2 charge sheet etc. shows that the accident
occurred due to the negligence of the second respondent. A poor
hapless widow at young age maintaining two children may not be able
to gather much evidence. But, in this case, evidence of PW2 as well
as charge sheet proved that second respondent was negligent. First
and second respondents did not appear before the Tribunal to deny
the allegations against them. In these circumstances, we are of the
opinion that the compensation of Rs.2,73,400/= calculated by the
Tribunal should be awarded and deposited by respondents 1 to 3
jointly and severally. Since there is valid insurance coverage, third
respondent insurance company is directed to deposit the same with
7% interest from the date of application till its deposit. On deposit of
the amount, appellants 4 and 5 are allowed to withdraw Rs.7,500/=
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each. One third of the balance amount is allowed to be withdrawn by
the first appellant. Balance should be deposited in a nationalised
bank as fixed deposit in the name of 2nd and 3rd appellants enabling
them to withdraw the same in equal share on their attaining 21 years
of age.
The appeal is allowed.
J.B.KOSHY
JUDGE
P.N.RAVINDRAN
JUDGE
tks