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 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 MACA.No. 1079 of 2007() ---------------------------------- OPMV.3426/2000 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT/3RD RESPONDENT --------------------------------------------- THE ORIENTAL INSURANCE CO.LTD., TRIVANDRUM, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI - 18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS/ CLAIMANTS ----------------------------------------- 1. MINI, W/O.LATE BABURAJ, THAYYIL HOUSE, PATTAMBI ROAD, KUNNAMKULAM, TRICHUR. 2. MINOR NEETHU, D/O.LATE BABURAJ, THAYYIL HOUSE, PATTAMBI ROAD, KUNNAMKULAM, TRICHUR. 3. MINOR NEERU, D/O.LATE BABURAJ, THAYYIL HOUSE, PATTAMBI ROAD, KUNNAMKULAM, TRICHUR. (RESPONDENTS 2 & 3 ARE MINORS REPRESENTED BY THEIR MOTHER AND GUARDIAN IST RESPONDENT MINI). ADV. SRI.DILIP J. AKKARA FOR R1 TO R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/09/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------- M.A.C.A.No.1079 OF 2007 ------------------------------------- Dated 15th September, 2008 JUDGMENT Koshy,J . The Insurance Company filed this appeal questioning the finding of negligence of the driver of the vehicle insured by it and its liability to pay compensation. Husband of the first respondent sustained fatal injuries in a motor accident. While he was driving a goods autorickshaw, it was hit by the lorry owned by the first respondent in the O.P.(M.V) and driven by the second respondent in the O.P.(M.V). The above lorry was insured by the appellant insurance company. The Tribunal found that the accident occurred due to the negligence of the driver of the lorry insured by the appellant insurance company. Ext.A1 is the F.I.R. The F.I. Statement was given by an eye witness wherein it is stated that the lorry was driven in a rash and negligent manner and the accident occurred due to the negligence of the driver of the lorry insured by the appellant. Ext.A5 is the final report wherein the police on investigation charge sheeted the driver of the lorry on the preliminary finding that he was negligent. Taking these aspects, the Tribunal found that the driver of the lorry insured by the appellant insurance company was responsible for the accident. Contention of the appellant was that MACA.1079/2007 2 the accident occurred in a road having a width of 8.15 metres and the scene mahazar shows that the accident occurred 3.65 metres north from southern end of the road which is on the wrong side of the autorickshaw. We note that on the basis of the scene mahazar, negligence cannot be presumed on the side of the autorickshaw driver. It is well known that when an accident occurred in a public road, due to the impact of the accident the small vehicle may move from its place. Apart from the above, for smooth traffic the vehicle may be shifted to another place and the police who arrived at the place cannot be able to find out the exact place of accident. What is written in the scene mahazar is only hearsay evidence. The scene is not marked. The tyre marks etc. were not mentioned. One cannot say that the autorickshaw driver was negligent. In fact, the police charge- sheeted the lorry driver. Even though the insurance company has a case that the autorickshaw driver, the deceased, had no driving licence the police has no such case. A photocopy of the licence was shown to us showing that he had a three wheeler licence also. Even otherwise, if the lorry driver was negligent, the question of licence of the third party victim is of not much importance. Apart from the above, if the lorry driver was vigilant, he could have avoided the accident if reasonable care was taken by him. In the above circumstances, we are of the opinion that no interference is required MACA.1079/2007 3 in the finding of negligence. The Tribunal has considered the matter in detail and we have not seen any ground for interference in the impugned award. The appeal is dismissed. J.B.KOSHY JUDGE K.P.BALACHANDRAN JUDGE tks