IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 MACA.No. 2546 of 2008() ----------------------------------- OPMV.1082/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/ 1ST RESPONDENT --------------------------------------------- RAJAN, S/O. KRISHNAN, AGED 44 YEARS, KADAYATH HOUSE, VEMBILLY KARA, KUNNATHUNADU VILLAGE, KUNNATHURNADU TALUK. BY ADV. MR.PAUL K.VARGHESE SMT.N.ANJALI RESPONDENTS/PETITIONER & RESPONDENTS 2 & 3 ---------------------------------------------------------------------------- 1. P.N. RAGHAVAN, S/O.NARAYANAN, PINAKKATTU HOUSE, VEMBILLY KARA, KUNNATHUNADU TALUK. 2. A.V. MANOJ, AREEKKAL HOUSE, NAYATHODE P.O., NEAR PERUMBAVOOR. 3. THE ORIENTAL INSURANCE CO.LTD., 1ST FLOOR, KALLOOKARAN SHOPPING COMPLEX, ANGAMALY. R3 BY ADV. MR.A.R.GEORGE . THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA.No. 2546 of 2008 ORDER ON I.A. NO.3036/2008 IN MACA NO.2546/2008 DISMISSED 06/10/2009. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N.KRISHNAN, J. ........................................... M.A.C.A.NO.2546 OF 2008 ............................................. Dated this the 6th day of October, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Perumbavoor in OP(MV)No.1082/2002. The claimant is alleged to have sustained injuries in a road accident and he has been awarded a compensation of Rs.27,020/= by the Tribunal. It is against that decision, the 1st respondent in the claim petition has come up in appeal. 2. I am sorry to state that after framing the issues and the first issue being whether the 1st respondent was negligent for the accident, the Tribunal has considered on discussion about the ownership of the vehicle and ultimately said that the 1st respodnent is responsible and negligent for the accident. That should not have been the approach especially when the 1st respondent has denied the factum of driving by him of the motor bike. it is also interesting to see that the claimant did not mount the box at all to tender any evidence in support of his contention and to further crown all these things, we find that Ext.B4 : 2 : M.A.C.A.NO.2546 OF 2008 is a certified copy of the judgment rendered by the Judicial First Class Magistrate in C.C.No.626/2002. I am conscious of the fact that a judgment of a criminal court is not binding on the Tribunal to decide the question of negligence. But when the claimant does not enter the box at all nor did tender any evidence especially in the backdrop that a criminal court has given clean acquittal of the accused, it is a matter that has to be taken into consideration. I had gone through the judgment of the Magistrate's court. All the witnesses who were examined as independent witnesses turned hostile to the prosecution and the claimant as PW1 alone supported his case. But the court found that even the place of occurrence is shifted and had referred to the fact that in one place it is stated that the accident had taken place in a road near which there is no habitation at all, but PW1 would say that there were shops and residential buildings. Though the investigating agency was made available for chief examination, his presence was not procured for the cross examiantion. So even scene of occurrence became a doubtful factor in this case. It is in : 3 : M.A.C.A.NO.2546 OF 2008 this background one has to find out whether there is sufficient evidence to prove the negligence of the 1st respondent. The 1st respondent never admitted that he was driving the motor bike but his contention was that the claimant was driving the motor bike and he was travelling as a pillion rider. There is only evidence tendered by him before the court as RW5. For the reasons known to the claimant, he had chosen to be away from the court. Therefore, I find that the Tribunal's finding that R1 was negligent for the accident is not proved. There is nothing before the court to establish the negligence. Being a case under Section 166 of the Motor Vehicles Act and as negligence is not proved, I allow the appeal and dismiss the claim application. M.N.KRISHNAN, JUDGE cl : 4 : M.A.C.A.NO.2546 OF 2008