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 4TH AUGUST 2010 / 13TH SRAVANA 1932 MACA.No. 1390 of 2005() ----------------------- OPMV.1227/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANT/3RD RESPONDENT: --------------------------------------- THE ORIENTAL INSURANCE CO. LTD., CHALAKUDY, REPRESENTED BY ITS ADMINISTRATIVE- OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): CLAIMANT/RESPONDENTS 1 & 2: ------------------------------------------ 1. SANTHOSH, S/O. KUMARAN, KOLLARA HOUSE, NEAR OLD BRIDGE, CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. ABDUL HASSIM SHANAVAS, SHYLAJA MANZIL, CHEEPPETTOM, THALLAMALA. 3. JAYAN, S/O. BALAN, CHERODATH HOUSE, WEST CHALAKUKDY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR TALUK. ADV. SMT.K.V.BHADRA KUMARI FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1390 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of August, 2010 JUDGMENT Barkath Ali, J. Appellant is the third respondent Insurance Company in O.P.(MV)No.1227/1995. The claimant in the O.P. sustained the following injuries in a motor accident which occurred on August 28, 1994 at Seminary bus stop in Parur junction ; Abrasion on the right parietal region, cerebral contusion. C.T. scan revealed small subdural haematoma left parietal region, haemorrhage with contusion left tempero parietal region with sub archnoid haemorrhage and bleeding in the intra hemispheric parietal region. 2. The accident happened while the claimant was pillion riding on a motor cycle bearing Reg.No. KLB 3707 which was ridden by the second respondent, it capsized due to the negligence of the second respondent. Alleging negligence against the second respondent, the claimant filed the O.P. before the Tribunal claiming a compensation of Rs. 6 lakhs. MACA.No.1390/2005 2 3. Respondents 1 and 2, the owner and rider of the offending motor cycle remained absent before the Tribunal. The third respondent, the insurer of the offending motor cycle filed a written statement admitting the policy, but contended that claimant himself was riding the motor cycle and that he is under the influence of Alcohol, that accident occurred due to the negligence of the claimant himself. Therefore, he is not entitled to any compensation from the respondents. 4. Pws 1 to 5 were examined and Exts.A1 to A12 and Ext.X1 were marked on the side of the claimant before the Tribunal. On the side of the contesting third respondent, Exts.B1 and B2 were marked. On an appreciation of evidence, the Tribunal found that the claimant was pillion riding on the motor cycle at the time of the accident, that accident occurred due to the negligence of the second respondent and awarded a compensation of Rs. 2,17,300/- with interest @ 9% per annum from the date of petition till realisation and proportionate cost. The third respondent Insurance Company has now come up in appeal challenging the judgment and award of the Tribunal. 5. Heard the counsel for the claimant and the counsel for the MACA.No.1390/2005 3 Insurance Company. 6. The main argument advanced by the counsel for the appellant was that claimant himself was riding the motor cycle at the time of the accident and that accident happened due to his own negligence and therefore he is not entitled to any compensation from the respondents. 7. There is no substance in the above contention. Pws 1 to 5 were examined on the side of the claimant to prove his case. PW1 is the mother of the claimant. She has not witnessed the incident. PW5 is the alleged eye witness to the incident. He gave a consistent version regarding the incident and testified that claimant was pillion riding on the motor cycle at the time of the accident. Nothing was brought out during his cross examination to discredit his evidence. No evidence was adduced on the side of the contesting third respondent to prove that claimant was actually riding the motor cycle at the time of the accident. 8. The counsel for the appellant argued that in Ext.B1, copy of the wound certificate, the alleged cause of injury was shown as fall from the bike and that therefore it has to be held that it was the MACA.No.1390/2005 4 claimant himself riding the motor cycle at the time of the accident. We are unable to agree. Merely because of such endorsement in the copy of the wound certificate, we are not inclined to accept the above contention of the third respondent. Third respondent has not chosen to examine the second respondent, the alleged rider of the motor cycle as a witness to prove his case. Further Ext.B1 is not properly proved by examining the doctor who issued the said certificate. For all these reasons, we are of the view that the Tribunal is perfectly justified in accepting the evidence of Pws 1 and 2 and rejecting the contention of the appellant/third respondent and holding that the claimant was pillion riding on the motor cycle at the time of the accident. 9. As we have confirmed the finding of the Tribunal that the claimant was pillion riding on the motor cycle at the time of the accident, the question of negligence on his part does not arise. The evidence in this case clearly shows that the accident occurred due to the negligence of the second respondent, the rider of the offending motor cycle. Therefore, the claimant is entitled to compensation from the respondents. No other point is argued before us. That being so, the MACA.No.1390/2005 5 appeal has only to be dismissed. In the result, the appeal is dismissed. No cost. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1390/2005 6