IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930 MACA.No. 2142 of 2008 -------------------------------------- OPMV.2471/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER: DR.K.NARAYANA PAI, CHELLANKAL HOUSE, VADAYAR P.O., THALAYOLAPARAMBU, VAIKOM. BY ADV. SRI.A.K.HARIDAS SRIP.RAJEEV RESPONDENTS/RESPONDENTS: 1. ROBIN C. JOHNY, CHOORAMATHAYIL, ARAKUNNAM P.O., MULANTHURUTHY, KANAYANNUR, ERNAKULAM. 2. ALICE P. ABRAHAM, CHORAMATHAYIL, ARAKUNNAM P.O., MULANTHURUTHY, KANAYANNUR, ERNAKULAM. 3. THE UNITED INDIA INSURANCE CO. LTD., KOTTAYAM. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.A.C.A.No.2142 of 2008 --------------------------------- JUDGMENT Balachandran, J. This appeal is filed by the petitioner in O.P. (MV)No.2471/04 on the file of the Motor Accidents Claims Tribunal, Kottayam, assailing the dismissal of the aforesaid original petition. 2. According to the appellant/petitioner, at about 8 p.m. on 29.3.2004 while he was riding his motor bike bearing Reg.No.KL-7/AM 4232 from east to west along the Mulanthuruthy-Arakkunnam road, within the limits of Mulanthuruthy Police Station, a Maruti Car bearing Reg.No.KL-7/6111, owned by the second respondent and driven by the first respondent in a rash and negligent manner, without dimming its headlights, came from the opposite direction and hit on his motor bike and thereby he was thrown down to the road and he sustained injuries to both his hands and right lower limb, MACA 2142/08 2 contusion to the muscles of his right thigh and contusion over right forearm. He alleged that immediately he was taken to Varsha Hospital, Mulanthuruthy where he was given first aid and he was later taken to the Lakeshore Hospital, Kochi, where he was admitted and treated for four days and thereafter he continued OP treatment in the same hospital for some time. According to him, he suffered much pain and agony and sustained partial disability on account of the injuries and has spent considerable amounts for treatment and that the accident occurred solely due to the rash and negligent driving of the car by the first respondent. Second respondent is the registered owner of the car and employer of the first respondent. It stood validly insured with the third respondent Insurance Company at the time of the accident. He claimed in all an amount of Rs.1,50,000/- by way of compensation from the respondents. MACA 2142/08 3 3. Though respondents 1 and 2 entered appearance, they did not file any written statement. The third respondent insurer, on permission having been obtained under Section 170 of the M.V. Act, filed written statement and an additional written statement, wherein, the contentions, inter alia, were that the accident occurred not in the manner alleged, but that, at the time of the occurrence, the appellant was riding his motor bike in a rash and negligent manner at an exorbitant speed through the wrong side of the road and without lighting its headlight and that was how the car happened to hit on the motor bike and the accident occurred; that the police charge sheeted the appellant and he appeared before the Magistrate's Court, Ernakulam and pleaded guilty and was convicted; that the original petition was filed in collusion with other respondents; that, however, the injuries sustained by the appellant/petitioner were very minor and MACA 2142/08 4 that in any event, he is not entitled to any compensation and the original petition is liable to be dismissed. 4. During trial, on the side of the appellant/ petitioner, PWs 1 and 2 were examined and Exhibits A1 to A10 were got marked and on the side of the respondents Exhibits B1 to B3 were got marked. The Tribunal considered the case in the light of the above evidence, found that the accident occurred solely due to the negligence of the appellant and dismissed the original petition. 5. It is contended before us by the learned counsel for the appellant that the Tribunal has not appreciated the case in the proper perspective and that evidence of PWs 1 and 2 should have been accepted to find that the accident occurred on account of the rash and negligent manner in which the first respondent drove the car, which hit against the motor bike of the appellant. It is the case of the appellant that he was riding his motor MACA 2142/08 5 bike from east to west along the Mulanthuruthy- Arakkunnam Road at about 8 p.m. on 29.3.2004 and the offending vehicle, namely, Maruti Car bearing Reg.No.KL-7/6111, which was coming from the opposite direction at an excessive speed without dimming its headlights, hit against his motor bike. 6. Exhibit B3 is the copy of the final report submitted by the Mulanthuruthy Police in Crime No.73/04, registered in connection with the occurrence involved in the case. As per the final report, it is the appellant who was charge sheeted for offences under Section 279 IPC read with Sections 360 and 177 of the M.V. Act. He pleaded guilty to the charge and was convicted by the Magistrate. Exhibit B1 is the copy of the scene mahazar prepared by the police in the course of investigation. It shows the place of occurrence as the tarred portion of the road that lies east-west, precisely 137 cms. south from the northern end of the tarred road. The appellant was to keep his MACA 2142/08 6 side, which is the southern side of the road, as he was proceeding to west along the said road. Obviously, when it is shown that the accident occurred at the northern most portion of the tarred road, namely, 137 cms. south from the northern most end of the road, it shows that the accident has taken place by the motor bike ridden by the appellant proceeding to the wrong side of the road. The charge against the appellant is also substantiated by the above fact. As per Exhibit B3 final report, the motor bike was being ridden by the appellant without switching on its headlight, though the time was 8 p.m. No acceptable evidence has been adduced by the appellant to prove his case. 7. It is worthy to note that PWs 1 and 2, examined by the appellant to prove his case of negligence on the part of the driver of the car, are not witnesses in Exhibit B3 final report. Further, it is strange that the appellant has not MACA 2142/08 7 cared to enter the witness box to swear to his case. The evidence tendered by PWs 1 and 2, in the circumstances, was being rightly rejected by the Tribunal. 8. Exhibit A1 is the copy of the private complaint filed by the appellant before the Additional Chief Judicial Magistrate's Court, Ernakulam against the first respondent alleging that the accident occurred due to the negligent driving of the car by the first respondent, which hit against his motor bike. Exhibit B2 is the report submitted by the police on 1.4.2004 stating that investigation in the case is in progress against the appellant. On submission of Exhibit B3 final report against the appellant, Exhibit A2 notice dated 31.10.2004 was served on the appellant. However, the appellant did not file any protest complaint pursuant thereto. The Tribunal, which considered the above evidence, found that the accident occurred on account of the appellant MACA 2142/08 8 riding his motor bike to the wrong side of the road even without switching on its headlight and he was solely responsible for the accident taking place and that he is not entitled to any damages for the injuries sustained to him solely on account of his negligence and dismissed the original petition. There is absolutely no material for us to come to a different conclusion than that arrived at by the Tribunal. Consequently, concurring with the findings of the Tribunal, this appeal deserves only to be dismissed. In the result, the appeal is dismissed. (J.B.Koshy, Judge) 6th October, 2008 (K.P.Balachandran, Judge) tkv