IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 MACA.No. 1719 of 2008(G) ------------------------------------- O.P(MV).NO.2697/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/ PETITIONER IN O.P. (MV) NO. 2697/01 OF MACT, ERNAKULAM: ------------------------------------------------------------------------------------------------------------ O.A.JOLLY, AGED 37 YEARS, S/O. SRI. ANTONY, OLIPARAMBIL HOUSE, INDIRA PRIYADARSHINI ROAD, KUMBALAM NORTH P.O., ERNAKULAM-682506. BY ADV. SRI.T.K.RADHAKRISHNAN. RESPONDENTS/ RESPONDENTS IN O.P. (MV).NO.2697/01 OF M.A.C.T. ERNAKULAM: ---------------------------------------------------------------------------------------------------- 1. KUMARI ANSHA BAI.K., D/O.KASSIM SAIT, VAYALIL VEEDU UNITY LANE LEKSHMINADA, KOLLAM 2. JACOB JOHN, S/O.JOHN, SANU NIVAS MATHILIL PO.,THRIKKADAVOOR, PERINAD, KOLLAM. 3. MANU.M.JOY, MANU NIVAS, WEST OF BOAT JETTY KOLLAM. 4. THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE,P.B.NO.228, LIC BUILDING, CHINNAKKADA, QUILON-691001. 5. UNITED INDIA INSURANCE COMPANY LTD., KOLLAM BRANCH, KOLLAM. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 26/08/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. J.B.KOSHY & THOMAS P.JOSEPH, JJ. -------------------------------------- M.A.C.A.No.1719 OF 2008 ------------------------------------- Dated 26th August, 2008 JUDGMENT Koshy,J . The appellant/claimant sustained fracture of tibia and fibula in a motor accident. According to him, the accident occurred while he was travelling in a motor cycle. He alleges negligence on the part of the car driver as well as the rider of the motor cycle. Only the claimant himself was examined as the witness. In the wound certificate as well as police records it is stated that the claimant himself was riding the vehicle. The wound certificate also shows that he was the rider of the motor cycle. Even if he was a pillion rider, he was not covered by the insurance policy. Merely because the accident occurred in a collision between two vehicles, it cannot be presumed that the car driver is negligent unless there is some dependable evidence. The accident is alleged to have occurred on 3.2.2001. F.I.R. was filed only on 25.2.2001. The Tribunal has considered the available evidence and held as follows: “Claim petition is filed attributing rashness and negligence as against the 3rd respondent, the rider of the motor cycle. Ext.A12 is the copy of complaint in respect of the incident filed by the claimant at the earliest opportunity before the police. Ext.A12 was filed accusing the car driver MACA.1719/2008 2 alone as responsible for causing the accident. During cross-examination, petitioner has also given yet another version showering the entire blame on the car driver. Soon after the accident, petitioner was admitted in Government Hospital, Kollam. In Column 10 of Ext.A5 copy of wound certificate issued from the hospital, the history and cause of injury is shown as on hitting a car while riding a motor cycle. Presence of smell of alcohol in breath is also seen noted. In the claim petition, the rider is changed as the pillion rider.” In the above circumstances, the Tribunal came to the conclusion that the car driver was not negligent and found that no compensation can be awarded as negligence of the drivers was not proved and it was also noticed that as per the earlier documents the claimant himself was riding the motor cycle. In the circumstances of the case, we are of the view that no interference is required in the impugned award. The appeal is dismissed. J.B.KOSHY JUDGE THOMAS P. JOSEPH JUDGE tks