IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 MACA.No. 248 of 2006() ---------------------- OPMV.1948/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): APPELLANT: ------------------------ REGI, S/O. THANKAPPAN RESIDING AT THEVARAKUDIYIL HOUSE, KUTHUKKUZHI P.O., KOTHAMANGALAM. BY ADV. SMT.ANNIE PAUL SRI.PHILIP.J.VETTIKATU RESPONDENT(S): --------------- 1. M. ELANGOVAN, S/O. MARIMUTHU, 68, APR NAGAR, KUMBAKONAM, TAMIL NADU. 2. JOSE @ SUNNY, MATHAI MUNDAPPANAL HOUSE, NEDUMKUNDAM, IDUKKI DISTRICT. 3. THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO.LTD. CENTRAL JN. KATTAPPANA. 4. V.P. SURESH, VADAKKEPUTHENPURAYIL HOUSE KUTHUKUZHI P.O., KOTHAMANGALAM. 5. THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO.LTD., MUNNAR. ADV. SRI.P.JAYASANKAR FOR R5 SRI.GEORGE ABRAHAM FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 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