IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 874 of 2004()
1. SARADHA, W/O. SIVANKUTTY,
... Petitioner
Vs
1. RIJI MATHEW,
... Respondent
2. SUKUMARAN, S/O. VELAYUDHAN,
3. THE UNITED INDIA INSURANCE CO. LTD.,
For Petitioner :SRI.RAJEEV V.KURUP
For Respondent :SRI.A.R.GEORGE
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :26/05/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
- - - - - - - - - - - - - - - - - - - - -
M.A.C.A.No.874 OF 2004
- - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 26th day of May, 2010
JUDGMENT
Barkath Ali, J.
In this appeal under Section 173 of Motor Vehicles Act, the
claimants in O.P.(MV)No.1036/99 on the file of Motor Accidents
Claims Tribunal, Kottayam challenges the judgment and award of the
Tribunal dated July 8, 2003 dismissing the O.P.
2. The facts leading to this appeal in brief are these :
Deceased Sunil Kumar was aged 25 at the time of the accident.
He was an Auto rickshaw driver. On May 20, 1999 at about 9.p.m., he
was driving the auto rickshaw along M.C.Road at Ettumanoor. At that
time, a lorry bearing Reg.No.KL 5C/4788 driven by the second
respondent came at a high speed and dashed against the autorickshaw
of the deceased. Deceased sustained very serious injuries and he
succumbed to the injuries sustained while undergoing treatment in the
hospital. The claimants are his parents. According to the claimant, the
accident occurred due to the rash and negligent driving of the offending
MACA.No.874/2004 2
lorry by second respondent. First respondent as the owner, second
respondent as the driver and third respondent as the insurer of the
offending lorry are jointly and severally liable to pay compensation to
the claimants. Claimants claimed a compensation of Rs. 10 lakhs.
3. Respondents 1 and 2, the owner and driver of the offending
lorry remained absent before the Tribunal. The third respondent, the
insurer of the offending lorry filed a written statement admitting the
policy, but contended that the accident occurred due to the negligence
on the part of the deceased.
4. Pws 1 and 2 were examined and Exts.A1 to A5 were
marked on the side of the claimants. On the side of the contesting third
respondent, Exts.B1 to B5 were marked. On an appreciation of
evidence, the Tribunal found that the accident occurred due to the
negligence on the part of the deceased and that therefore claimants are
not entitled to any compensation and dismissed the O.P. Claimants
have now come up in appeal challenging the said judgment of the
Tribunal.
5. Heard the counsel for the claimants and the counsel for the
MACA.No.874/2004 3
Insurance Company.
6. The accident is not disputed. The Tribunal dismissed the
O.P. finding that the accident occurred due to the negligence on the
part of the deceased. Claimants have challenged the said finding in this
appeal. Therefore the question which arises for consideration is
whether the finding of the Tribunal that the accident occurred due to
the negligence on the part of the deceased and dismissing the O.P. can
be sustained .
7. For several reasons we are inclined to confirm the above
finding of the Tribunal. PW2, the occurrence witness examined on the
side of the claimants testified that while the Autorickshaw was
attempting to overtake a bus, the lorry came from the opposite side and
hit against the autorickshaw. The autorickshaw was on the eastern side
of the road. The road at the place of incident was north-south and the
Autorickshaw was proceeding from south to north. Therefore, the
autorickshaw was on its wrong side which is seen from Ext.B2, the
copy of the scene mahazar. Copy of the postmortem certificate Ext.B4
and the report of the Forensic Expert Ext.B5 show that the deceased
MACA.No.874/2004 4
had consumed Alcohol. He had 74.75 Mg. of ethyl alcohol per 100
ml. of blood. That part, he had no driving licence. Police has laid
charge against him as evidenced by Ext.B1, copy of the police charge.
The autorickshaw had no permit or fitness certificate.
8. For all these reasons, we are of the view that the Tribunal
is perfectly justified in holding that the accident occurred due to the
negligence on the part of the deceased and dismissing the O.P. It
follows that the appeal is devoid of any merit and has to be dismissed.
However, we make it clear that it will be open to the appellants to
approach the Tribunal and seek remedy available to them under Section
163A of the Motor Vehicles Act, if it is permissible under law.
In the result, the Appeal is dismissed. Parties shall bear their own
costs.
A.K.BASHEER, JUDGE
P.Q.BARKATH ALI, JUDGE
sv.
MACA.No.874/2004 5
MACA.No.874/2004 6