IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 MACA.No. 1289 of 2004 -------------------------- OPMV.252/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER: -------------------------------------------- SOMAN S/O. NARAYANAN, MOLAYIL HOUSE, AIRAPURAM KARA, AIRAPURAM VILLAGE. BY ADV. SRI.T.A.UNNIKRISHNAN SMT.RESHMI POULOSE RESPONDENT(S): RESPONDENTS ------------------------------------- 1. ELDHO K.MATHEW, S/O. MATHEW, KOCHERY HOUSE, THINGADU KARA, KAKKANADU VILLAGE. 2. C.S.RAJU, CHIRATTAPURACKAL HOUSE, THENGODU P.O., KAKKANADU. 3. THE UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICER, IV, JOS TRUST BUILDING, CHITTOOR ROAD, COCHIN. ADV. SRI.S.MAMMU FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A. K. Basheer & P.Q. Barkath Ali, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 1289 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of February, 2010. Judgment Basheer, J: Appellant is the claimant before the Motor Accidents Claims Tribunal, Muvattupuzha in OP (MV).No.252/1999. He claimed a sum of Rs.1,90,000/- as compensation for the injuries allegedly sustained by him in an accident involving a two wheeler bearing registration No.KL-7/7534. 2. According to the appellant, he was riding on the said two wheeler as a pillion which was being driven by respondent No.2 herein, from Kakkanad to Thangodu. Appellant contended that the two wheeler overturned and he fell down resulting in fracture of left tibia. He was treated at M.M.M. Hospital, Kolencherry. 3. But since Puthenkurz Police did not register any crime in spite of the intimation sent from the hospital, appellant was constrained to file a private complaint before the Judicial Magistrate of First Class, Aluva against respondent No.1 alleging rash and negligent driving on his part. The learned Magistrate referred the complaint to the Police for investigation under Section 156(3) of the Code of Criminal Procedure. Thereafter the Police had registered a crime against respondent No.1. 4. Appellant, in his claim petition, contended that respondent No.3, the Insurance Company which had issued a valid MACA.1289/04. 2 insurance policy in respect of the vehicle owned by respondent No.2 was liable to compensate him. The Insurance Company resisted the Claim Petition contending that the two wheeler referred to above was not involved in the accident as alleged. It was also pointed out that the appellant was not riding as a pillion rider as alleged by him. The Police had registered a crime against respondent No.1, about 5 months after the date of the alleged accident. This itself indicated that there was no accident as alleged by the appellant, it was contended by the Insurance Company. 5. The appellant got himself examined before the Tribunal as Pw.1 and Exts.A1 to A7 were marked on his side. The Insurance Company produced Ext.B1 copy of the policy going by which there was valid policy coverage. It was also admitted that pillion rider was covered under the policy. Ext.X1 inpatient record summoned by the Tribunal was also marked in the case. 6. The Tribunal after evaluating the oral testimony of Pw.1 and also perusing Ext.X1 case sheet came to the conclusion that the case set up by the appellant as regards the involvement of the two wheeler cannot be accepted, especially since Ext.X1 case sheet revealed that the cause of accident mentioned therein was “overturning of auto”. In other words, the Tribunal accepted the version given by the Insurance Company and repelled the case of the appellant. 7. We have carefully perused the materials available on MACA.1289/04. 3 record. We have also heard learned counsel for the parties. 8. It is true that in Ext.X1 it was recorded that the road traffic accident was as a result of overturning of an auto. It is yet again true that the number of the two wheeler was not indicated in Ext.X1. But appellant had asserted before the Tribunal that the two wheeler driven by respondent No.1 was involved in the accident. Significantly respondent No.1 did not bother to appear before the Tribunal; nor did he step into the box to deny the allegations made against him. The owner of the two wheeler (respondent No.2) also did not choose to appear before the Tribunal and deny the involvement of his vehicle in the accident. 9. It has come out in evidence that appellant had been undergoing treatment for the fracture sustained by him in the accident for more than two months. (The accident occurred on March 6, 1998). It is seen that the appellant had filed the private complaint on May 15, 1998 though the learned Magistrate forwarded the complaint to the Police for investigation some time later. The Police had registered the crime only in August 1998. That does not mean that the appellant was not vigilant enough in prosecuting his case. Moreover, if in fact appellant had sustained injuries in an accident involving an auto, we do not find any reason why he should have concealed that fact and tried to exonerate the auto driver or owner. Further, the specific contention raised by the appellant that the Police had in fact come to the MACA.1289/04. 4 hospital on receipt of intimation from the hospital authorities and that they had refused to take cognizance since the accident had taken place within the limits of yet another Police station cannot be disbelieved. 10. Keeping in view all the above facts and circumstances we are satisfied that the finding entered by the Tribunal that the two wheeler bearing registration No.KL-7/7534 was not involved in the accident cannot be sustained. Therefore the said finding is set aside. 11. The case is remitted to the Tribunal to assess the quantum of damage, if any, that the appellant may be entitled to get. It is made clear that the parties would be entitled to adduce further evidence with regard to quantum of compensation. 11. The tribunal shall dispose of the Claim Petition as expeditiously as possible at any rate within three months from the date of receipt of a copy of this judgment. Appellant and respondent No.3 shall appear before the Tribunal on March 31, 2010. A.K. Basheer Judge P.Q. Barkath Ali an. Judge