IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1342 of 2005()
1. MR. SAIFUDEEN, S/O. ABOOBACKER,
... Petitioner
Vs
1. MR. PRABHAKAR KAMATH, H.NO.39/330 A,
... Respondent
2. MR. KARTHIKEYAN, S/O. KRISHNAN,
3. THE ORIENTAL INSURANCE CO.LTD.,
For Petitioner :SRI.K.JANARDHANAN
For Respondent :SRI.MATHEWS JACOB (SR.)
The Hon'ble the Acting Chief Justice MR.J.B.KOSHY
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :16/12/2008
O R D E R
J.B.KOSHY,Ag.C.J & THOMAS P. JOSEPH, J.
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M.A.C.A.No.1342 of 2005
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Dated 16th December, 2008
JUDGMENT
Koshy,Ag.C.J.
Appellant sustained very serious injuries in a motor accident
while he was travelling as a pillion rider in a motor cycle on 28.4.1997.
He was admitted in the City Hospital. In Ext.A4 wound certificate it is
stated as follows:
“History of fall from a motor bike. He was
riding at Pulleppady at 9 a.m.”
There was no statement that the a motor accident was caused by the
mini lorry hitting the motor cycle. There is no mention in the wound
certificate about a Road Transport Accident. Even though it is stated
that F.I.R. was registered only on 3.5.1997 and it is true that draft
charges were prepared by the police, they took five days to register the
F.I.R. The incident is alleged to have occurred in a busy area at
Pulleppady junction in Kochi City. If an accident occurred in such a busy
junction, it would have been immediately reported to the police.
However, AMVI’s report on the mini lorry or the motor cycle on which
the appellant was travelling were not produced to find out whether an
MACA.1342/2005 2
accident occurred or not. Before the Tribunal, second respondent
driver of the alleged offending vehicle, mini lorry was deleted from
the party array. The main tortfeasor is the driver. The owner of the
vehicle had only vicarious liability and insurance company had only to
indemnify him in view of the insurance policy. Without the driver on
the party array, Tribunal also cannot grant compensation finding him
guilty of negligence. In the appeal also notice was not served on the
driver. Even though opportunities were given, defects are not cured
so far. In these circumstances, we are of the opinion that there is no
material to establish that the injuries sustained by the appellant arose
out of a motor accident involving the mini lorry.
The appeal is dismissed.
J.B.KOSHY
ACTING CHIEF JUSTICE
THOMAS P. JOSEPH
JUDGE
tks
