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 25TH MAY 2010 / 4TH JYAISHTA 1932 MACA.No. 422 of 2003() ---------------------- OPMV.2147/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/PETITIONER IN O.P.(MV)NO.2147/1994: ----------------------------------------------------------- PAULOSE MATHEW @ THANKACHAN, S/O.P.C. MATHEW, AGED 38, PALLINEERAKAL HOUSE, MUTTUCHIRA, KOTTAYAM,REP. BY HIS POWER OF ATTORNEY HOLDER, SMT.LISSY PAULOSE,AGED 36, W/O. PAULOSE MATHEW, NOW RESI:AT ASANPARAMBIL HOUSE, KALARIKAL THOPPIL, KANJIKUZHY, KOTTAYAM DISTRICT. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS RESPONDENT(S): RESPONDENTS IN O.P.(MV)NO.2147/1994: --------------------------------------------------- 1. K.V. HAMSA HAJI, S/O. KASMI, AYSHA MANZIL, PUTHIRIKKAL P.O., PARAPPANANGADI, MALAPPURAM DISTRICT. 2. UNITED INDIA INSURANCE CO.LTD. K.V. 405 PAREED AUTOMOBILES BUILDING, MALAPPURAM BRANCH-676 505. 3. BAIJU, S/O. SUBRAMANYAN, BINDU VILASAM, MANJOOR P.O., KOTTAYAM DISTRICT. 4. SMT. PAULY ISSAAC, CHAMMIANIKUZHIYIL HOUSE, MANATHOOR P.O., MUVATTUPUZHA. 5. NEW INDIA ASSURANCE CO.LTD., MUVATTUPUZHA BRANCH, MUVATTUPUZHA. ADV. SRI.N.S.MOHAMMED USMAN FOR R5 SRI.RAJAN P.KALIYATH FOR R2 SRI.T.A.UNNIKRISHNAN FOR R4 SRI.P.P.BIJU FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 422 of 2003 ------------------------------------------------------ Dated: MAY 25, 2010 Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the claimant in OP(MV) 2147/1994 on the file of the Motor Accidents Claims Tribunal, Ernakulam, challenges the judgment and award of the Tribunal dated July 17, 2001 dismissing the O.P. 2. The facts leading to this appeal in brief are these: The claimant was aged 29 and was working as an operator in Vinod Metal Industries getting a monthly income of Rs.3000/-, according to him. At about 2.30 p.m. on November 8, 1993 while he was travelling in the tempo trax bearing registration No.KL-7B-1194 along Thripunithura - Vaikom road and when he reached at Kannankulangara junction, a mini lorry bearing registration No.KL-10-A-9012 driven by one Kunju Mohammed came at a high speed and dashed against the tempo trax in which the claimant was travelling. The claimant sustained serious injuries. According to the claimant, the accident occurred due to the negligence on the part of the driver of the mini lorry. The 1st respondent as the owner and the 2nd respondent as the insurer of the mini lorry are jointly and severally liable to pay compensation to the claimant. The driver of the mini lorry died in the accident. The driver, the owner and the insurer of the tempo trax were subsequently M.A.C.A. 422 of 2003 2 impleaded as additional respondents 3, 4 and 5. The claimant claimed a compensation of Rs.2,20,000/-. 3. Respondent No. 1, the owner of mini lorry, remained absent. The 2nd respondent, insurer of the mini lorry involved in the accident, filed a written statement admitting the policy, but contending that the accident occurred due to the negligence on the part of the driver of the tempo trax. The 3rd respondent, driver of the tempo trax, remained absent. The 4th respondent, the alleged owner of the tempo trax, filed a written statement denying his liability and saying that he has sold his vehicle to one Rajan. The 5th respondent, insurer of the tempo tax, filed a written statement admitting the policy. 4. The claimant was examined as PW.1 to 3 and Exts.A1 to A9 were marked on the side of the claimant before the Tribunal. On the side of the contesting respondents Ext.B1, copy of the policy, was marked. On an appreciation of evidence the Tribunal found that the claimant has failed to prove that he has sustained any injuries in the accident and dismissed the O.P. The claimant has now come up in appeal challenging the said finding of the Tribunal. 5. Heard the counsel for the claimant and the Insurance Company. M.A.C.A. 422 of 2003 3 6. The following point arises for consideration: Whether the finding of the Tribunal that the claimant has failed to prove that he has sustained any injury in the accident as alleged by him can be sustained? 7. On going through the judgment of the Tribunal we find that the Tribunal is perfectly justified in dismissing the claim of the claimant for the following reasons: The name in Ext.A4 copy of the wound certificate is Thankachan while PW.1 has signed in the deposition as Paulose. Counsel for the appellant argued that the name of PW.1 is Paulose Mathew @ Thankachan. But no document is produced by the claimant to prove the same. Copies of the FIR and wound certificate produced by the claimant are not readable. Police charge was not produced. All these facts casts serious doubts regarding the version of PW.1 that he was involved in the accident. The case of the claimant was that the driver of the tempo trax died in the accident. No document was produced by the claimant before the Tribunal to prove the same. It is the admitted case that the police has referred the case. Therefore it cannot be said that there was any negligence on the part of the driver of the tempo trax or that of the mini lorry. For all these reasons we are of the view that the claimant has failed to prove that he sustained any injury in the motor accident M.A.C.A. 422 of 2003 4 as alleged by him. That being so, the Tribunal is justified in dismissing his application. Therefore we find no merit in the appeal and the same has to be dismissed. In the result the appeal is dismissed. The parties shall suffer their own costs. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-