IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 14TH OCTOBER 2010 / 22ND ASWINA 1932 AS.No. 51 of 1996() -------------------------- OS.86/1992 of SUB COURT, MUVATTUPUZHA .................... APPELLANT(S): DEFENDANT ---------------------------------------- VINOD, AGED 23, S/O. CHANDRASEKHARAN NAIR RESIDING AT THURUTHIKKATTU VEEDU, PIDAVOOR KARA, VARAPPETTY VILLAGE, KOTHAMANGALAM TALUK. BY ADV. SRI.H.SIVARAMAN SRI.MATHEW CHERIAN RESPONDENT(S): PLAINTIFF ----------------------------------------- JACOB, AGED 30, S/O. MATHEW ALIAS MATHAI, RESIDING AT PARIYARATH VEEDU, PALARIMANGALAM KARA, VARAPPETTY VILLAGE. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 14/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... A.S.NO.51 OF 1996 ............................................. Dated this the 14th day of October, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Muvattupuzha in O.S.No.86/1992. The suit is one for damages. It is the case of the plaintiff that on 10.8.1991 while he was riding a cycle, the cycle ridden by the defendant came from the opposite direction in a rash and negligent manner and hit on his cycle resulting in injuries to him. He was taken to the hospital and he had undergone treatment. He had claimed a total compensation of Rs.27,100/=. 2. On the other hand the defendant would contend that the whole case is a falsehood and he had not driven any cycle and dashed it against the cycle driven by the plaintiff and therefore prays for dismissal of the suit. On an elaborate consideration, the learned trial judge granted a decree for Rs.8,500/= and it is against that decision, the defendant has come up in appeal. 3. Though notice is served on the respondent in the appeal, he has not chosen to enter appearance. Heard the : 2 : A.S.NO.51 OF 1996 learned counsel for the appellant and perused the documents and evidence. 4. It is the case of the plaintiff that while he was riding a cycle from west to east and when it reached the place of accident, another cycle ridden by the defendant came from east to west and hit on his cycle resulting in injuries to him. The mahazer which is produced would show that the road is having a width of 4.50 metres at the place of the accident and that the accident had taken place 94 cms south of the northern tar end. If the case alleged by the plaintiff is true, then going by the scene mahazer, the accident had taken place on the wrong side of the defendant. But the defence in this case is that his cycle had never hit the cycle ridden by the plaintiff. In order to prove the same, the defendant has relied upon the First Information Statement given by the plaintiff before the police. The certified copy of the same is Ext.B2. In Ext.B2, the plaintiff had stated before the police that while he was riding the cycle, a scooter came from the opposite direction, hit on his cycle resulting in injuries to him. This statement was given by : 3 : A.S.NO.51 OF 1996 the plaintiff on 11.8.1991. It is a signed statement given by him before the police. It is admissible in evidence in the civil case also. When the plaintiff was cross examined, this document has been put to him and he had admitted the signature. But he would contend that he had not stated so before the police. It has to be stated that thereafter there had been a change and the cycle has been substituted for the scooter and the matter has been proceeded with. 5. Ext.B1 is the certified copy of the judgment of the criminal court in C.C.No.491/1991. The prosecution had examined as many as 9 witnesses in that case and had also marked Exts.P1 to P7 therein. All the alleged independent occurrence witnesses had turned hostile to the prosecution. When there was only the evidence of PW1, the court considered the same fact in para 6 of the judgment and there the court relied upon the statement given which is Ext.B2. In Ext.B2 even number of the scooter is given, only later substitution is made with a cycle in stead of the scooter. Therefore the trial court in the criminal case rightly rejected the evidence of PW1. : 4 : A.S.NO.51 OF 1996 6. Here is a case where the plaintiff himself had given a statement before the competent authority alleging that it was a scooter that had hit him and later he shifted his case and changed into a cycle. No other evidence is forthcoming to substantiate his changed case. He did not examine any other witnesses in this case to prove the occurrence as alleged by him. Therefore, when the evidence of PW1 is not trustworthy and Exts.B1 and B2 is totally against him, it has to be held that the plaintiff has not succeeded in proving that the defendant while riding the cycle had hit against the cycle of the plaintiff resulting in injuries to him. When it is so, the plaintiff is not entitled to claim any damages and therefore, the suit is only to be dismissed and I do so. In the result, the appeal is allowed and the judgment and decree of the trial court are set aside and the suit is dismissed, but I direct the parties to bear their respective costs. M.N. KRISHNAN, JUDGE. cl : 5 : A.S.NO.51 OF 1996 M.N. KRISHNAN, J. ........................................... A.S.NO.51 OF 1996 ............................................. 14th day of October, 2010. J U D G M E N T