IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 22ND JANUARY 2008 / 2ND MAGHA 1929 MFA.No. 496 of 2002(E) ---------------------- OPMV.1933/1995 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT: APPELLANT/PETITIONER: -------------------------------- N.L. MICHAEL, AGED 44 YEARS, SON OF SRI. LONAN, NANDIKKARRA HOUSE, THOPILAKKAD HOUSING COLONY, MUPPATHADOM, ALWAYE. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. RESPONDENTS: RESPONDENTS/RESPONDENTS: ------------------------------------- 1. T.K. SAMBUDAYAS, S/O. KOCHUNARAYANAN THOTTUMPURATH HOUSE, POONITHURA P.O., ERNAKULAM. 2. THOMAS, S/O. VAREETHUKUTTY, MURIYA KANNAYATH HOUSE, PONNURUNNI, POONITHURA VILLAGE, COCHIN-19. 3. MRS. AMINA ZAKARIAH, VELLOORKODATH HOUSE ALUPURAM, UDYOGAMANDAL. 4. V.M. SAKARIA, S/O. MEETHIAN, VELLOORKODATH HOUSE, ALUPURAM, UDYOGAMANDAL. 5. THE UNITED INDIA INSUSRANCE CO. LTD., UDYOGAMANDAL. BY ADV. SRI.K.SREESAKUMAR SRI.A.L.ROY SMT.P.A.REZIYA THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA.NO.1456 OF 2003 IN MFA.496 OF 2002: DISMISSED. Sd/- 22.1.2008 J.B.KOSHY, JUDGE Sd/- K.HEMA, JUDGE //TRUE COPY// PA TO JUDGE J.B.KOSHY & K.HEMA,JJ. ----------------------------------------- M.F.A.No.496 of 2002 ----------------------------------------- Dated this the 22nd day of January, 2008 JUDGMENT Koshy, J. Appellant-claimant, while travelling as a pillion rider in a scooter, suffered injuries. According to the claimant, a car bearing registration No.KBE 9427 was following the scooter driven by the second respondent and the second respondent, who was driving the scooter overtook the car, when signal was given by the fourth respondent, driver of the car. But when the scooter reached at the middle of the car for overtaking, the fourth respondent turned the car towards right. Hence the accident occurred. The appellant produced charge sheet showing that only the scooter driver was charge sheeted. The wound certificate also shows that the appellant was smelling alcohol. There was no insurance for the scooter. The contention of the Insurance Company of the car was that the car was in the correct direction and the scooter driven by the second respondent with the claimant as the pillion rider tried to overtake the car and met with the accident. Therefore, the Tribunal correctly found that the accident had occurred due to the negligence on the MFA.496/02 2 part of the claimant himself by travelling on the two wheeler after consuming alcohol. Second respondent, driver of the scooter was exparte. Owner of the scooter died and his legal representatives are not impleaded. In the above circumstances, we see no merit in the appeal. In any way, the appeal is abated. However, there is a direction by the Tribunal directing the petitioner to pay cost. That portion of order is set aside as the claimant was actually injured in the accident. The award is modified to the above extent and the appeal is disposed of accordingly. J.B.KOSHY, JUDGE K.HEMA, JUDGE vgs. MFA.496/02 3 J.B.KOSHY & K.HEMA, JJ. ------------------------------ M.F.A.No.496 of 2002 ------------------------------ JUDGMENT 22.1.2008