IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 MFA.No. 462 of 2001(B) ---------------------- OPMV.607/1993 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): /PETITIONER -------------- APPUKUTTAN S/O.KRISHNAN, NADUVILEKUNATHUTHARA, KAITHAVANA, SANATHANAPURAM P.O., ALAPPUZHA BY ADV. SRI.V.N.SWAMINATHAN SRI.S.DILEEP RESPONDENT(S): RESPONDENTS: --------------- 1. K.S.ARAJEEVAN, S/O.SUKUMARAN, KATTIDATHU HOUSE, ARTHUNKAL P.O., CHERTHALA. 2. KK.G.SATHEESH KUMAR, KIZHAKKEDATHU KIZHAKKETHIL, MIKHATHALA, KOLLAM. 3. THE BRANCH MANAGER, ORIENTAL INSURANCE CO. LTD., PUNALUR 691 305. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.F.A.No.462 of 2001 -------------------------------------- Dated this the 19th day of November, 2008. JUDGMENT Thomas P.Joseph, J. Appellant, aged about 52 years at the relevant time filed O.P.(MV) No.607 of 1993 in the Motor Accidents Claims Tribunal, Alappuzha (for short, 'the Tribunal') on 27.4.1993 against respondents 1 to 3 claiming compensation of Rs.5,25,000/-. He alleged that on 14.9.1992 at about 10.30 a.m. while he was sitting on his motor cycle near St.Michaels Umbrella Mart on the Alappuzha Jetty-Kallupalam road, a scooter which the first respondent was riding, owned by the second respondent and insured with the third respondent came along that way, hit a hand-cart, lost control and then hit the motor cycle on which he was sitting. He sustained injuries which ultimately resulted in loss of vision of his left eye. Appellant alleged that the accident occurred due to the rashness and negligence of the first respondent. First respondent denied the allegation of rashness and negligence on him and claimed that he was riding the scooter with due care and caution. Second respondent did not file written statement. Third respondent, insurer claimed that the application is preferred by the appellant in collusion with the first respondent and that the claim is false and vexatious. Appellant examined himself as PW1 and examined PWs 2 to 5. Exts.A1 to A6 were marked. Respondents examined RWs 1 to 4. Learned Tribunal awarded MFA No.462/2001 2 compensation of Rs.1,30,000/-. Appellant challenged the quantum of compensation in M.F.A.No.495 of 1997while the third respondent challenged the finding regarding the accident and its liability to pay compensation in M.F.A.No.148 of 1997. As per common judgment dated 14.2.2000 this Court set aside the award and remitted the case to the Tribunal for de nova trial. After remand, appellant (PW1) was recalled and was further cross-examined. Appellant examined PW5 also to prove the accident. Respondents did not adduce further evidence. Learned Tribunal considered the issues afresh and found that accident as alleged is not proved. However, the learned Tribunal assessed the compensation at Rs.1,18,000/-. But, in view of the finding regarding cause of accident, application was dismissed. Appellant is aggrieved and has come up in appeal. 2. Heard. 3. Point for consideration is whether the award of the learned Tribunal requires interference. 4. Though going by the contentions raised by the first respondent it would appear that he has admitted the accident, third respondent - insurer of the scooter which the first respondent was riding and which as per evidence he had purchased from second respondent, denied the accident. PWs 2 and 3 are examined to prove the occupation and income of the appellant. Appellant as MFA No.462/2001 3 PW1 and his witness, PW5 gave evidence regarding the alleged accident. PW4 was examined to prove the injury. Though PW3 was examined to prove the occupation and income, in cross-examination he claimed to have witnessed the accident. First respondent was examined as RW3. Ext.A1 is the copy of mahazar for scene of the alleged accident. Ext.A3 is the copy of charge sheet against the first respondent for allegedly causing the accident by rash and negligent driving. 5. So far as the evidence of the first respondent as RW3 is concerned, in cross-examination on behalf of third respondent he was asked whether the scooter which he was riding met with any accident on the date of alleged accident. He had no answer. But he admitted that in the criminal court he had denied that. There was such an accident. He claimed that what he said in the criminal court is true. It is revealed from his evidence (RW3) that he had given vakkalath in the case to Advocate Sarasappan who, learned counsel appearing for the third respondent pointed out before the Tribunal, is none other than the counsel for the appellant. Learned Tribunal observed that written statement (signature in the written statement was denied by RW3) on behalf of the first respondent was filed by an Advocate attached to the office of the Advocate for the appellant which revealed collusion between the appellant and first respondent in the matter. MFA No.462/2001 4 6. So far as the evidence of PW3 is concerned, appellant had not cited him as a witness to prove the accident. H e was cited to prove the occupation of the appellant. It was in cross-examination on behalf of the third respondent that PW3 claimed to have seen the accident. According to PW3, the scooter which the first respondent was riding hit the hand-cart and then hit the motor cycle on which the appellant was sitting. Going by Ext.A1, the mahazar for scene of occurrence said to be prepared on 12.3.1993 it was PW3 who had pointed out the place of occurrence. But, the appellant as PW1 stated that the person who had pointed out the place of occurrence had not seen the accident. Moreover, going by Ext.A3, copy of chargesheet, case was registered by the local police only on the private complaint filed by the appellant being forwarded to that station from the court concerned on 11.3.1993 while the alleged accident was on 14.9.1992. If PW3 was a witness to the accident, appellant would have cited him as witness to prove the accident. 7. RW1 is the Assistant Professor of Opthalmology,Medical College Hospital, Alappuzha and claimed to have examined the appellant. As per the evidence of RW1 and Ext.B1, the copy of wound certificate prepared on 14.9.1992, the history and alleged cause of injury stated to RW1 is that appellant sustained injuries as he was hit down by a hand-cart while sitting on a scooter. The case of the scooter which the first respondent was riding being MFA No.462/2001 5 involved in the accident was not disclosed at the earliest point of time by the appellant. Appellant was not able to give satisfactory explanation for that conduct. 8. Now I shall refer to the evidence of PWs 1 and 5. Though PW5 claimed that he had witnessed to the accident, he is not cited as a witness in Ext.A3, chargesheet. According to PWs 1 and 5, the former (appellant) was sitting on a scooter when the scooter which the first respondent was riding hit the hand-cart and then hit the scooter on which PW1 (appellant) was sitting. But, as per the plea of the appellant in the claim petition, he was sitting on a motor cycle. 9. I stated that the appellant had not disclosed the involvement of scooter which the first respondent allegedly riding, at the earliest point of time. Had the appellant stated so to RW1, he would have recorded in Ext.B1 that it is an accident case and reported the matter to the police in which case police would have registered a case without losing time. There is no explanation for the delay of six months to file a private complaint and get the case registered. These circumstances taken along with the fact that evidence of first respondent (RW3) disclosed collusion between himself and the appellant, justified the contention of the third respondent that no such accident took place and that the application is the result of collusion between the appellant and the first MFA No.462/2001 6 respondent. There is no reason why this Court should interfere in the finding of fact entered by the learned Tribunal which rested on appreciation of the oral and documentary evidence. Appeal fails and it is dismissed. J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. cks MFA No.462/2001 7 J.B.Koshy & Thomas P.Joseph, JJ. M.F.A.No.462 of 2001 JUDGMENT 19th November, 2008