High Court Kerala High Court

Regi vs M. Elangovan on 23 November, 2009

Kerala High Court
Regi vs M. Elangovan on 23 November, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 248 of 2006()


1. REGI, S/O. THANKAPPAN RESIDING AT
                      ...  Petitioner

                        Vs



1. M. ELANGOVAN, S/O. MARIMUTHU, 68,
                       ...       Respondent

2. JOSE @ SUNNY,

3. THE BRANCH MANAGER, THE NEW INDIA

4. V.P. SURESH, VADAKKEPUTHENPURAYIL HOUSE

5. THE BRANCH MANAGER,

                For Petitioner  :SMT.ANNIE PAUL

                For Respondent  :SRI.P.JAYASANKAR

The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON

 Dated :23/11/2009

 O R D E R
                          P.R. RAMAN &
             P.R. RAMACHANDRA MENON, JJ.
               -----------------------------------------------
                      M.A.C.A. No. 248 of 2006
                     -------------------------------------
            Dated, this the 23rd day of November, 2009


                            J U D G M E N T

P.R. Raman, J.

Appellant is the claimant in OP(MV) 1948/2001 on the file of the

MACT, Muvattupuzha. He was riding a Kinetic Honda scooter and

proceeding in the Aluva – Munnar road towards west. A motor cycle

coming from the opposite direction, overtook a jeep and hit against the

vehicle of the appellant, as a result he fell down and sustained injuries,

claiming an amount of Rs.3,00,000/- by way of compensation.

2. The evidence consists of oral testimony of PWs 1 to 3,

Exts.A1 to A8 and Case Diary is marked as Ext.X1. The Tribunal, on

appreciation of the entire evidence adduced in the case found that no

negligence can be attributed on the part of the driver of the motor cycle.

The application was dismissed, against which this appeal is filed.

Learned counsel appearing for the appellant contended that at the point

of accident, the road was of 6.80 mts. width and the accident spot was

2.06 mts. from the southern tarred end. It is contended therefore that

the motor cycle was on the wrong side. It is also contended that the

evidence of PW1 to 3 ought to have been accepted by the Tribunal. Yet

MACA No. 248 of 2006
2

another contention on the part of the appellant is that when the vehicle

was overtaking another vehicle, the rider should have taken care that no

other vehicle came from the opposite direction. These are the main points

to contend that the accident occurred as a result of negligence on the part

of the rider of the motor cycle.

3. PW2 was not having a valid driving licence and he was

imposed with a fine for driving the vehicle without proper licence. When

he gave statement before the Police [Ext.X1(a)], it is recorded therein that

the Kinetic Honda (Scooter) was ridden by ‘Jayan’ and the motor cycle

was ridden by ‘Jose’ and that Jayan did not sustain any injuries.

Obviously since PW2/appellant did not have a licence, for fear of being

implicated in the criminal case, he wanted to say that the vehicle was not

being ridden by him; since at that time he was more concerned to get

himself absolved from any criminal case. It was later, a petty case was

charged against him and paid the fine and later, when he gave evidence

before the Court, he gave a totally different version. In this circumstance,

the Tribunal did not choose to accept the evidence of PW2 on its face

value.

4. PW3 is stated to be an occurrence witness. He was a sales

man in a shop near the occurrence place. According to him, the scooter

came from east towards west. A bullet motor cycle proceeding from the

MACA No. 248 of 2006
3

west, over took a jeep and hit the scooter. Both the vehicles overturned to

the southern side. The rider of the bike did not sustain any injury. He

stated that the accident occurred due to the negligence of the rider of the

motor cycle. PW3 was confronted with the statement given by him to the

Police, wherein it is recorded that the jeep was on northern side of the

road and was not moving, while the motor cycle coming from the west, on

seeing the Kinetic Honda coming from the opposite direction, applied the

brakes and hit at the other vehicle involved. If this is the first statement

given by him to the police, the version given by him much later while

examining as a witness before the MACT, which is inconsistent with his

earlier statement, can’t be accepted as reliable.

5. Even if the statement given by him before the police cannot

be accepted as a piece of evidence and that the scooter was being ridden

by a person who had no licence, still there was a distance of 2.06 mts. on

the left side of the rider and if he had turned his scooter little further

towards left side, this accident could have been averted. Though the

learned counsel for the petitioner vehemently contended that, while

overtaking a vehicle, one should see that no vehicle came from the

opposite direction, it must be remembered that the jeep was lying parked

and not a moving one. Secondly, it is not the case of the appellant that

the road was not having sufficient width or that the vehicle coming from

MACA No. 248 of 2006
4

the opposite direction could not be seen from at least 100 mts. away.

Therefore, the fact that the motor cycle had gone to the other side is of

not much consequence when the vehicle was overtaking another vehicle

parked on the road and it cannot be said that the rider of the motor cycle

was negligent. On weighing the entire evidence as a whole, the finding of

the Tribunal cannot be said to be perverse. The Sub Inspector of Police

who was examined as PW1 on the side of the appellant, has also given

evidence that he was not in a position to fix negligence on the part of both

the riders and it was accordingly, that the matter was referred. We do not

find any reason to interfere with the finding and reasoning given by the

Tribunal. There is no merit in the appeal. The Appeal is dismissed.

P.R. RAMAN, JUDGE

P. R. RAMACHANDRA MENON, JUDGE
dnc