IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 MACA.No. 1769 of 2010() ----------------------- OPMV.1190/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): PETITIONERS ------------------------- 1. LILAMANYAMMA, AGED 56, W/O.MANOHARAN, MANORATHAM, VARANAM.P.O., CHERUVARANAM, AYAPPENCHERI KARA, THANNEERMUKKOM, CHERTHALA.[W/O OF THE DECEASED] 2. MANOJKUMAR.M., AGED 24 YEARS, S/O.LATE MANOHARAN, DO, DO. 3. VINODKUMAR.M., AGED 22 YEARS, S/O.LATE MANOHARAN, DO, DO. 4. ATHIRA MANOHARAN, AGED 19 YEARS, D/O.LATE MANOHARAN, DO, DO. BY ADV. SRI.S.PRASANTH SRI.JAGADEESH LAKSHMAN RESPONDENT(S): RESPONDENTS -------------------------- 1. O.N.RAJU, S/O.NARAYANAN, OLEDATH HOUSE, EDANADU.P.O., VALLICHIRA. 2. SANTHOSH.K.J, KURIATH HOUSE, EDANADU.P.O., VALLICHIRA, PALA. 3. THE RBANCH MANAGER, THE NATIONAL INSURANCE CO.LTD.,BRANCH OFFICE, CHERUPUSHPAM BUILDING, PALA, KOTTAYAM. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1769 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of October, 2010 JUDGMENT Barkath Ali, J. Appellants are the claimants in O.P.(MV)No.1190/2007, who are the wife and children of deceased Manoharan, who allegedly died in a motor accident which occurred on June 15,2002 at about 6.45 p.m. and they challenge the judgment of the Tribunal dated April 21, 2010 dismissing the O.P. 2. The case of the claimants was that while deceased was walking along the side of the road and reached in front of Ellathu House on Erattupetta-Pala road, he was knocked down by the mini lorry bearing Reg.No.KL-5/B 8778 driven by the first respondent and that he succumbed to the injury sustained while undergoing treatment in the hospital. Alleging negligence against the first respondent, the claimants filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming compensation from the respondents. 3. Respondents 1 and 2, the driver and the owner of the offending lorry remained absent before the Tribunal. The third MACA.No.1769/2010 2 respondent, the insurer of the offending lorry filed a written statement admitting the policy, but disputed the accident. 4. Pws 1 to 3 were examined and Exts.A1 to A5 were marked on the side of the claimants. On the side of the respondents, RW1 was examined and Exts.X1 to X9 were marked. On an appreciation of evidence, the Tribunal found that the claimants have failed to prove the accident as alleged by them and dismissed the O.P. The claimants have now come up in appeal challenging the said finding of the Tribunal. 5. Heard the counsel for the claimants and the counsel for the Insurance Company. 6. The following points arise for consideration : 1. Whether the finding of the Tribunal that the offending mini lorry was not involved in the accident and consequently dismissing the O.P. can be sustained ? 2. Whether the claimants are entitled to any compensation from the respondents ? Point Nos. 1 and 2 7. As the contesting third respondent has disputed the accident, on the side of the claimants Pws 1 to 3 were examined and Exts.A1 to A5 were marked. PW1 is the widow who did not witness MACA.No.1769/2010 3 the incident. Pws 2 and 3 are the alleged eye witnesses to the incident. But the Tribunal has chosen not to believe their evidence. We have also gone through their evidence. PW2 is the co-worker of the deceased and PW3 is the employer of the deceased. There are several contradictions in their evidence. Therefore, we find no reason to come to a different conclusion. 8. On the side of the contesting third respondent, RW1, the then ASI of Pala Police station was examined. He submitted that after conducting investigation factual report Ext.X1 was submitted stating that vehicle involved could not be traced. 9. For all these reasons, we are of the view that the Tribunal is perfectly justified in holding that claimants have failed to prove that the offending mini lorry was involved in the accident. That being so, the claimants are not entitled to compensation from the respondents and the appeal has to be dismissed. In the result, the appeal is dismissed. No cost. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1769/2010 4 MACA.No.1769/2010 5