IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 MACA.No. 874 of 2004() ---------------------- OPMV.1036/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/2ND PETITIONER: --------------------------------------- SARADHA, W/O. SIVANKUTTY, PUTHIYEDATHU VADAKKETHIL, CHOORAKULANGARA, ETTUMANNOOR P.O., KOTTAYAM. (THE 1ST PETITIONER IN OP(MV) 1036/99 HAD EXPIRED DURING THE TRIAL OF THE CASE. SO HE IS NOT MADE A PARTY IN THIS APPEAL). BY ADV. SRI.RAJEEV V.KURUP RESPONDENT(S): RESPONDENTS: --------------------------- 1. ROJI MATHEW, MEENATHETHIL HOUSE, AYAPARAMBU P.O., KARUVATTA, ALAPPUZHA DISTRICT. 2. SUKUMARAN, S/O. VELAYUDHAN, PARAPPANATTUPUTHENPURAYIL, PEEZHAKAPILLY, MOOVATTUPUZHA. 3. THE UNITED INDIA INSURANCE CO. LTD., DIVISIONAL MANAGER, KOTTAYAM. ADV. SRI.A.R.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.874 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of May, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimants in O.P.(MV)No.1036/99 on the file of Motor Accidents Claims Tribunal, Kottayam challenges the judgment and award of the Tribunal dated July 8, 2003 dismissing the O.P. 2. The facts leading to this appeal in brief are these : Deceased Sunil Kumar was aged 25 at the time of the accident. He was an Auto rickshaw driver. On May 20, 1999 at about 9.p.m., he was driving the auto rickshaw along M.C.Road at Ettumanoor. At that time, a lorry bearing Reg.No.KL 5C/4788 driven by the second respondent came at a high speed and dashed against the autorickshaw of the deceased. Deceased sustained very serious injuries and he succumbed to the injuries sustained while undergoing treatment in the hospital. The claimants are his parents. According to the claimant, the accident occurred due to the rash and negligent driving of the offending MACA.No.874/2004 2 lorry by second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending lorry are jointly and severally liable to pay compensation to the claimants. Claimants claimed a compensation of Rs. 10 lakhs. 3. Respondents 1 and 2, the owner and driver of the offending lorry remained absent before the Tribunal. The third respondent, the insurer of the offending lorry filed a written statement admitting the policy, but contended that the accident occurred due to the negligence on the part of the deceased. 4. Pws 1 and 2 were examined and Exts.A1 to A5 were marked on the side of the claimants. On the side of the contesting third respondent, Exts.B1 to B5 were marked. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence on the part of the deceased and that therefore claimants are not entitled to any compensation and dismissed the O.P. Claimants have now come up in appeal challenging the said judgment of the Tribunal. 5. Heard the counsel for the claimants and the counsel for the MACA.No.874/2004 3 Insurance Company. 6. The accident is not disputed. The Tribunal dismissed the O.P. finding that the accident occurred due to the negligence on the part of the deceased. Claimants have challenged the said finding in this appeal. Therefore the question which arises for consideration is whether the finding of the Tribunal that the accident occurred due to the negligence on the part of the deceased and dismissing the O.P. can be sustained . 7. For several reasons we are inclined to confirm the above finding of the Tribunal. PW2, the occurrence witness examined on the side of the claimants testified that while the Autorickshaw was attempting to overtake a bus, the lorry came from the opposite side and hit against the autorickshaw. The autorickshaw was on the eastern side of the road. The road at the place of incident was north-south and the Autorickshaw was proceeding from south to north. Therefore, the autorickshaw was on its wrong side which is seen from Ext.B2, the copy of the scene mahazar. Copy of the postmortem certificate Ext.B4 and the report of the Forensic Expert Ext.B5 show that the deceased MACA.No.874/2004 4 had consumed Alcohol. He had 74.75 Mg. of ethyl alcohol per 100 ml. of blood. That part, he had no driving licence. Police has laid charge against him as evidenced by Ext.B1, copy of the police charge. The autorickshaw had no permit or fitness certificate. 8. For all these reasons, we are of the view that the Tribunal is perfectly justified in holding that the accident occurred due to the negligence on the part of the deceased and dismissing the O.P. It follows that the appeal is devoid of any merit and has to be dismissed. However, we make it clear that it will be open to the appellants to approach the Tribunal and seek remedy available to them under Section 163A of the Motor Vehicles Act, if it is permissible under law. In the result, the Appeal is dismissed. Parties shall bear their own costs. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.874/2004 5 MACA.No.874/2004 6