IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 363 of 1994()
1. MOHANKUMAR
... Petitioner
Vs
1. MISSIONARIES OF CHARITY,TVM.
... Respondent
For Petitioner :SRI.N.GOVINDAN NAIR
For Respondent :SRI.D.S.WARRIER
The Hon'ble MRS. Justice K.HEMA
Dated :07/12/2006
O R D E R
K. HEMA, J.
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M.F.A. No. 363 OF 1994 (D)
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Dated this the 7th day of December, 2006.
J U D G M E N T
This appeal is filed against the dismissal of claim petition
filed under Section 166 of the Motor Vehicles Act. The appellant
claimed an amount of Rs.1 lakh as compensation for the injury
sustained in a motor accident on 11.12.1989 at about 12.30p.m.
According to the claimant, he was travelling on a motorcycle as a
pillion rider and a jeep driven by the fifth respondent came in a
rash and negligent manner and hit against the appellant and he
was knocked down by the hit and sustained injuries. According
to him, both drivers of the motor cycle as well as the jeep were
rash and negligent in driving and he sustained injuries. He
claimed compensation from the owner, driver and insurer of both
the vehicles.
2. To prove the case PWs 1 to 3 were examined on the side
of the appellant and Exhibits A1 to A14 were marked. The
respondents did not adduce any evidence. The Tribunal on an
analysis of the evidence found that the appellant failed to
establish that the incident as alleged had taken place and
dismissed the petition.
M.F.A. No. 363/94 2
3. The Tribunal entered a finding that the alleged cause
mentioned in Exhibit A7 wound certificate is the probable cause
of the accident. Thereby it was held that the appellant failed to
establish that the accident occurred as alleged by him. As per
Exhibit A7, wound certificate, the alleged cause of injury was
“while going on motorbike falling down hitting against stay wire
at 1.30p.m near Aryasala”. The case of the appellant is that, he
was knocked down from the motorcycle in which he was
travelling as a pillion rider by a jeep which was driven by the fifth
respondent. He gave evidence consistent with this pleading. He
also examined PW2 to support his case.
4. PWs 1 and 2 were not cross-examined. Their evidence
stands undiscredited. It is also relevant to note that the fifth
respondent has not denied the accident as such. The first and
second respondent filed a joint statement and contended that the
accident happened due to the negligence and lack of care and
caution on the part of the driver of the motorcycle in which the
petitioner was travelling as a pillion rider. It was also alleged
that the motorcycle came in an over speed and in a rash and
negligent manner from the reverse side of the jeep and the pillion
rider’s right leg happened to hit on the jeep.
M.F.A. No. 363/94 3
5. According to the second respondent, the rashness and
negligence on the part of the driver of the motorcycle alone was
the cause of the accident. It is clear from a reading of the
written statement filed by the first and second respondent that
they do not deny the accident as such, but only the manner in
which it happened.
6. The Tribunal placed reliance on the alleged cause of
injury stated in Exhibit A7. Exhibit A7 is the wound certificate,
but the maker of the said certificate has not been examined.
There is no evidence to show as to who gave the alleged
statement, which is seen recorded in Exhibit A7. It is seen that
the injured was brought by one Sasi to the hospital. There is
nothing in Exhibit A7 to show that the alleged cause of injury was
stated to the doctor by PW1, the claimant. There is also nothing
to show that the statement was given by any of the eyewitness.
In the absence of any material to establish as to who gave the
statement to the doctor, it will be improper to enter a finding that
the accident occurred as alleged in the statement seen made in
Exhibit A7. The statement allegedly recorded in Exhibit A7 cannot
be used against the oral evidence given by PWs 1 and 2,
especially in the absence of anything on record to show that the
M.F.A. No. 363/94 4
said statement was made by PWs 1 or 2 to the doctor. Neither of
these witnesses was cross-examined with reference to the
relevant statement recorded in Exhibit A7.
7. In the above circumstances, the case set up by the
claimant by his uncontroverted oral evidence ought not to have
been discarded in the light of the statement contained in
Exhibit A7. It was pointed out by learned counsel for the
appellant that, the scene mahazar Exhibit A2 will not even
disclose the presence of any stay wire in the place of occurrence
or nearby. In such circumstances, the finding entered into by the
Tribunal is liable to be set aside.
8. Learned counsel appearing for the respondents 1 to 3
submitted that the charge-sheet was filed against the second
respondent. He was acquitted by a criminal court by a
subsequent judgment. Therefore, it cannot be said that the
incident happened because of the negligence and rashness on his
part. Learned counsel appearing for the sixth respondent
submitted that, the insurance company has no liability because
the petitioner was a pillion rider and the policy does not cover
such liability to pay any compensation to a pillion rider. In the
light of the findings already entered into by me, I do not want it
M.F.A. No. 363/94 5
necessary to discuss this matter and I leave open the entire
matter for the Tribunal to decide.
The award challenged in this appeal is set aside. The case
is remanded to the Tribunal for fresh consideration and disposal
after giving opportunity to both sides to contest the matter on
merits. This appeal shall be disposed of untrammelled by any of
the observations made in this judgment in accordance with law.
This appeal is allowed.
K. HEMA, JUDGE
smp