IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 MACA.No. 728 of 2003() -------------------------------- OP(MV) NO.1016/1996 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNA, THALASSERY.) ...... APPELLANT/PETITIONER. -------------------- FEROZ, S/O.ABOOBACKER, AGED 26 YEARS, FEROZE MANZIL, P.O.MATTANNUR, KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENTS: RESPONDENT,. ------------------------- 1. S.P.RAFEEQUE, S/O.MOOSA, NEAR GOVERNMENT HOSPITAL, MATTANNUR P.O. 2. A.P.JAYANTH, DAKSHAYANI HOUSE, KODUVALLY P.O. THALASSERY. 3. UNITED INDIA INSURANCE COMPANY LIMITED, THALASSERY. ADV. SRI.V.RAJAGOPAL FOR R2 BY ADV. SRI.P.R.RAMACHANDRA MENON - R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. NO.728/2003 ORDER ON I.A. NO.1285/2008 IN MACA. NO.728/2003 DISMISSED 24.07.2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 728 OF 2003 = = = = = = = = = = = = = = = Dated this the 24th day of July, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thalassery in O.P.(MV)1016/96. It is the case of the claimant that while he was walking along the road a bike ridden by the first respondent in the claim application hit on him resulting in injuries to him and also to one Saheer who, according to the claimant, was travelling as a pillion rider in the bike. The Tribunal on analysis of the materials dismissed both the applications. It is against that decision, the present appeal is preferred. 2. Heard the counsel for both sides. The definite case of the claimant is to the effect that it was the vehicle ridden by the first respondent that has hit him resulting in injuries to him. There was another case connected with this as O.P.1128/96 wherein one Saheer filed the case on the ground that he was travelling as a pillion rider on the vehicle ridden by the first respondent and as a result of the hit on the M.A.C.A. 728 OF 2003 -:2:- claimant in the other case, he also fell down and sustained injuries. The insurance company raised a contention that it was the petitioner in O.P.1128/96, who was not having any valid driving licence, riding the vehicle and the contention that R1 was the driver is incorrect and he was only a pillion rider. Though a crime was registered to start with against the first respondent the investigating agency found that it was PW1 who drove the vehicle. The Court also opined that the F.I. Statement was given by the pedestrian only after three days. It gave him sufficient time to deliberate and therefore he should have mounted the box to give evidence which he did not do. The Tribunal, in order to satisfy its conscience called for the records of the Magistrate's Court in C.C.23/96. It it true that the petitioner in O.P.1128/96 who faced the trial was acquitted by the Magistrate for want of evidence. The Court also referred to the statement given by the present claimant before the police specifically stating that it was R1 who drove the vehicle but at the time of evidence before the Magistrate he would depose that he was not aware as to who drove the vehicle. So he was declared hostile and was cross-examined by the prosecutor. On the M.A.C.A. 728 OF 2003 -:3:- basis of the same the Tribunal arrived at a decision that F.I. Statement given by the claimant cannot be given any credence. The cumulative effect of the entire discussion was to the effect that the vehicle was driven by the claimant in O.P.1128/96 and that the claim petitions were filed distorting the facts for getting the compensation. I am conscious of the fact that irrespective of the person who drove the vehicle a third party may be entitled to get compensation but when a specific averment is there, a particular person had driven the vehicle and had caused the accident unless he is able to establish that he drove the vehicle and it was his negligence that resulted in the accident, no compensation can be awarded under Section 166 of the M.V. Act. Therefore, I do not find any mistake committed by the Tribunal in arriving at the said decision. So the appeal lacks merit and it is dismissed. M.N. KRISHNAN, JUDGE. ul/-