IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 MACA.No. 585 of 2004(G) ----------------------- ( O.P.(MV)NO.2182/1995 OF MACT, KOTTAYAM) APPELLANT(S): APPELLANTS/PETITIONER. ------------------------------------ 1. ELCY THOMAS,ERAYIL HOUSE, MALAM P.O. MANARCADU VILLAGE. 2. PHILIP THOMAS,ERAYIL HOUSE, MALAM P.O. MANARCAUD VILLAGE. 3. MARYKUTTY THOMAS, ERAYIL HOUSE, MALAM P.O. MANARCAUD VILLAGE. BY ADV. SRI.JOHN VARGHESE RESPONDENT(S): RESPONDENTS. --------------------------- 1. ANTO K.L. S/O.LEE JOHN, KATTILPARAMPU HOUSE, THIRUVANCHOOR KARA, WARD NUMBER VI, KOTTAYAM DISTRICT. 2. VINOD KUMAR, S/O.SREEDHARAN NAIR, MANATHARA HOUSE, THIRUVANCHOOR KARA, MANARCAUD VILLAGE, KOTTAYAM DISTRICT. 3. THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED, KOTTAYAM. 4. MARY POTHEN, W/O.POTHEN, ERAYIL HOUSE, KANJIKUZHY, KOTTAYAM DIST. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.585 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of December, 2010 JUDGMENT Basheer, J. Appellants are the widow and children of one Thomas, who allegedly died due to certain injuries sustained by him on his head. 2. The appellants filed an application under Section 166 of Motor Vehicles Act before the Motor Accidents Claims Tribunal seeking compensation from the respondents herein alleging that the deceased had sustained the fatal injuries while he was riding on the pillion of a two wheeler bearing Reg.No. KEK 4863 driven by respondent No.2 herein. The appellants alleged that the accident occurred on October 2, 1994 at about 10 pm. at Thiruvanchoor and that the accident occurred solely due to the rash and negligent driving of respondent No.2. According to the appellants, the two wheeler belonged to respondent No.1 and it was insured with respondent No.3. They claimed a sum of Rs. 3,83,750/- towards compensation under various heads. 3. The owner and the driver of the alleged offending vehicle MACA.No.585/2004 2 remained absent before the Tribunal and they were set ex parte. Respondent No.3 Insurance Company in its counter statement contended that no accident involving the two wheeler bearing Reg.No. KEK 4863 as alleged by the appellants had ever occurred. Though the insurance company admitted policy coverage in respect of the above vehicle, it was contended that the claim was wholly unsustainable in as much as it had no liability to indemnify the owner of the said vehicle which was never involved in any accident at all. 4. The widow of the deceased was examined before the Tribunal as PW1. PW2, who was stated to be an occurrence witness was also examined and Exts.A1 to A9 were marked. There was no oral or documentary evidence on the side of the Insurance Company . The Tribunal after considering the evidence available on record found that the appellants had failed to establish that deceased Thomas had died due to the injuries sustained by him in a road accident as alleged by them. 5. When this appeal came up for consideration we had called for the records. We have perused the entire materials available in the MACA.No.585/2004 3 case. We have heard Sri.John Varghese, learned counsel for the appellant and Sri.Mathews Jacob, learned senior counsel for the Insurance Company. 6. PW2 is the prime witness on the side of the appellants, who spoke about the alleged accident . According to this witness, he saw the incident on his way home after alighting from a bus. PW2 stated that he saw the two wheeler coming at an excessive speed and it capsized a short distance away from him. He lifted the injured and sat him up. The injured told him that he felt numbness in his head. PW2 waited there for five minutes and went away. PW2 alleged that the accident occurred due to the rash and negligent driving of the two wheeler by its rider. In cross examination this witness stated that he did not speak about this accident to any one else other than PW1. He did so on the day of burial of deceased Thomas at the Church. But he insisted that he remember the number of the scooter. This was only because he saw the accident. He further stated that when he left the scene, the rider was still standing there. 7. The evidence of PW1 may not have any significance so far MACA.No.585/2004 4 as the accident as such is concerned. However, Ext.A4 First Information Report is relevant and crucial. The crime is seen to have been registered by Mannarkkad police only on November 26, 1994 at 2 p.m. though the alleged accident occurred on October 20, 1994. In this context, it may be noticed that Thomas succumbed to the injures on November 25, 1994. In other words, First Information Statement was given by the brother of the deceased only on the next day after the death of Thomas. 8. It has come out on record that Thomas was being treated in the hospital throughout, till his death. But still, nobody chose to report the matter to the police. Under normal circumstances, if it had been a road traffic accident, the hospital authorities would have necessarily reported the matter to the police. There is absolutely no explanation why any of the relatives including appellant No.1 did not ever think of informing the police about the alleged accident. Even a perusal of Ext.A4 First Information Report will show the casual manner in which the statement has been given by the informant, who is none other than the brother of the deceased himself. It is seen stated by him that on MACA.No.585/2004 5 October 21, 1994 at about 6 a.m. one of his acquaintance had informed him that his brother Thomas was found lying on the Varandha of a nearby shop room. Immediately he went there and found his brother lying with a few injuries on his forehead and nose. When the informant asked Thomas as to what had happened, he was told that he had fallen down and he could not remember anything else. Thomas was immediately taken to the police quarters where he had been residing. According to the informant he left Thomas there at his quarters and went home. Later in the day, he came to know that Thomas had been admitted in the hospital and that he had undergone a surgery. It is further revealed from the FIR that Thomas had told the doctors also that he had a fall. The informant further told the police that Thomas had fallen from a scooter at night of 20th October “ some how”. He further stated that Thomas never told him as to who had been riding the scooter and how he had fallen down. Thomas also did not reveal the number of the scooter. 9. Having perused the above statement given by none other than the brother of the deceased before the police and that too after the MACA.No.585/2004 6 death of the victim, we do not find any reason to disagree with the conclusion arrived at by the Tribunal. In our view, the Tribunal was justified in holding that the appellants have failed to establish that deceased Thomas had died due to the injuries sustained by him in a road traffic accident as alleged by them. The evidence of PW2 also does not inspire any confidence at all. In any view of the matter, the award passed by the Tribunal does not suffer from any illegality. The appeal fails and it is accordingly dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.585/2004 7