IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 MACA.No. 1080 of 2006() ----------------------- OPMV.1425/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/2ND RESPONDENT ----------------------------------------- JOHNY, S/O.KURIAKOSE, KUPPAYIL HOUSE, THIRUVANIYOOR P.O., PUTHENCRUZ VIA, ERNAKULAM DIST-682 308. BY ADV. SRI.VIVEK VARGHESE P.J. RESPONDENTS: ------------- 1. P.C.RAJAPPAN, S/O.CHATHA, PALAKUZHY HOUSE, MARANGATTULLI KARA, THIRUVANIYOOR P.O., PUTHENCRUZ VIA, PIN-682 308. 2. KUMARI NARAYANAN, EDAKALAPUTHENPURAYIL HOUSE, RAMANGALAM, RAMANGALAM P.O., MUVATTUPUZHA, PIN-686 663. 3. THE NATIONAL INSURANCE CO.LTD., P.B.NO.24, MULLAPPILLY BUILDINGS, A.M.ROAD, PERUMBAVOOR-683 542. BY ADV SRI.P.R.RAJAN FOR R.1 BY ADV. SRI.JOE KALLIATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. 2080/2006 IN M.A.C.A NO: 1080 OF 2006 DISMISSED: 23/7/2008 SD/- M.N.KRISHNAN, JUDGE jj /TRUE COPY/ P.A. TO JUDGE M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 1080 OF 2006 -------------------------- Dated this the 23rd July, 2008. JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal Muvattupuzha in O.P(MV)No: 1425/01. First respondent is the appellant before this Court. It is the case of the claimant that while he was walking along Thiruvaniyoor-Piravom road, a scooter bearing registration No: KBV 8015 driven by the first respondent in the claim petition came in a rash and negligent manner and hit on him resulting injuries to him. On the other hand the first respondent who is the appellant herein contended that he was the rider of the vehicle involved in the accident. 2. The Tribunal, on appreciation of the materials found that first respondent was the driver in-charge and the accident had taken place on account of his negligence and awarded a compensation of Rs.27,000/- (Rupees twenty seven thousand only). It is against that decision the present appeal is filed. 3. It has also to be stated that the insurance company was exonerated from the liability for want of driving licence. M.A.C.A.1080/06 2 4. Learned counsel for the appellant very strongly contends that the materials available is not sufficient to indicate that he was the rider and that his vehicle was involved in the accident. To start with, when the FIR statement was given, number of the vehicle was given as KL-7/Q-4170 and the identity of the driver was that he can be identified on seeing. Ext.A2 is copy of the scene mahazer, which would show that at the place of accident there is a bent on the road. Ext.A3 is the Motor Vehicle Inspector's report relating to vehicle no: KBV/8015 and inspection was done on 21.7.2000. Ext.A4 is the charge sheet filed by the police against the appellant also giving number of the vehicle as KBV/8015. Ext.A5 onwards are the documents relating to sustainment of injuries. Ext.B1 is the F.I statement given by the claimant to the police on 30.7.2000 wherein he has stated that the number of the vehicle is KL-7/Q-4170 and that the rider of the scooter has also accompanied him to the hospital. Ext.B2 is the certified copy of the deposition given by the claimant before the Magistrate's Court. Ext.B3 is the judgment in M.A.C.A.1080/06 3 C.C.154/01 wherein the Magistrate's Court, after consideration of the entire evidence found that there is nothing to show that the accused was involved in the case and, therefore, acquitted him. Ext.B4 is copy of the policy. 5. P.W.1 is the claimant. He had deposed before the court that the vehicle ridden by the appellant had hit him and the accident had taken place at 7 p.m. on 29.7.2000. In the cross examination he would deny the suggestion that he had given the vehcile number as KL-7/Q-4170. He has even denied his signature in the F.I statement. He would further depose that he knew the name of the appellant only after the accident. But when he was confronted with the question whether he has deposed before the Magistrate that he has acquaintance with the appellant for more than ten years, he had stated that he has not deposed so before the Magistrate. Even regarding the side of walking he had given a different version. He admits that he had never told before the police that Johny, the appellant had driven the vehicle. P.W.2 is one Bhaskaran. At the M.A.C.A.1080/06 4 outset it has to be stated that he was not cited as a witness in the criminal case and secondly he had deposed that it was not very dark at the time of the accident. He would depose that it was scooter No: KBV/8015 that was involved in the accident. He has admitted that he has not given evidence before the Magistrate's Court. 6. Now, with these materials, one has to find out whether the claimant has succeeded in proving that it was the scooter driven by the first respondent that has caused the accident. A perusal of judgment of the criminal court would reveal that none of the witnesses had supported the case of the complainant. The learned Magistrate found that there was so much of inconsistency and contradiction in his evidence. It has also to be stated that the claimant has given totally a go bye to what is stated before the Magistrate's Court, which would indicate that he has no regard for truth. Suppose a person is familiar, has deposed before the Magistrate's Court and he had accompanied him to the hospital, one can go wrong in giving number of the vehicle, but one cannot go M.A.C.A.1080/06 5 wrong in identifying the driver for giving the name. It is also the case that the appellant has also sustained injuries and he was also treated in the hospital. No document is produced to prove the same and if there has been any document it would have clinched the situation. It is true that a Motor Accidents Claims Tribunal is not bound by the decision of the Magistrate's Court, but the materials are relevant while appreciating the evidence of the witnesses. P.W.1 is a person who has given a total go bye to the version given by him before the Magistrate and therefore his evidence before the Tribunal cannot be accepted because it has to be held that it is not intrinsically reliable or inherently probable. So far as P.W.2 is concerned, his name does not figure as a witness before the Magistrate's Court and his deposition also does not inspire confidence for accepting it. Even regarding nature of accident, there is contradiction between the witnesses. So, a cumulative effect of all these things only lead to the conclusion that there is no sufficient materials to connect the appellant with the accident. M.A.C.A.1080/06 6 When it is so, it is not possible to hold that he was riding the vehicle and it was on account of his negligence the accident had taken place. 7. Therefore, I reverse the finding of the Tribunal and hold that the claimant has not succeeded in proving the case and, therefore, I allow the appeal and dismiss the claim petition, but without costs. Whatever amount is paid by the appellant or the insurance company may be given back. The right of recovery of the insurance company is granted against the claimant instead of the appellant herein. M.N.KRISHNAN, JUDGE jj