IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 MACA.No. 1273 of 2004(C) ------------------------ OPMV.140/1994 of ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA .................... APPELLANT(S): APPELLANT/3RD RESPONDENT ------------------------------------------------------------------------ NATIONAL INSURANCE COMPANY LTD., PARAMESWARA PILLAI BHAVAN, HOSPITAL ROAD, QUILON, REPRESENTED BY THE DIVISIONAL MANAGER. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): CLAIMANT AND R1 AND 2 ------------------------------------ 1. RAGHU S/O. JANARDHANAN, KOIKKALETHU, CHERUKOLE MURI, CHENNITHALA VILLAGE, CHERUKOLE POST, MAVELIKKARA. 2. VENU S/O. RAGHAVAN, MANGATHU VEEDU, KUTTAMPEROOR, KUTTAMEROOR POST. 3. REJI CHERIAN, S/O. CHERIAN, KOCHU PANGATTU, KUZHIMATTOM, PANCHAYATH WARD V., PANACHIKATTU VILLAGE, CHENGANASSERY TALUK. BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SRI.R.REJI SMT.SHIVA RAJA RESHMI SRI.RAKESH DAWNY KOKKATTU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 1273 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 3rd February, 2011 JUDGMENT Barkath Ali, J. Appellant is the 3rd respondent Insurance Company in O.P.(MV) No.140 of 1994 on the file of the Addl. Motor Accidents Claims Tribunal, Mavelikara. In this appeal the appellant challenges the judgment and award of the Tribunal dated December 15, 2003 awarding a compensation of Rs.67,700/- for the loss caused to the claimant on account of the injuries sustained by him in a motor accident. 2. The case of the claimant/1st respondent as testified by him as PW1 before the Tribunal and as stated in the O.P. in brief is this:- The claimant was aged 29 at the time of the accident and was earning Rs.1,500/- per month as a driver. On February 11, 1993 at about 12.30 in the night he was travelling in an auto-rickshaw bearing registration No. KL- 5/399 along Mavelikara – Thiruvalla. Due to rash and negligent driving of the auto-rickshaw by the 1st respondent, it capsized MACA 1273/2004 2 and the claimant suffered serious injuries. Alleging negligence against the 1st respondent, he filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.2,81,500/-. 3. Respondents 1 and 2, the alleged driver and owner of the offending auto-rickshaw remained absent before the Tribunal. The 3rd respondent insurer of the offending auto- rickshaw filed a written statement admitting the policy but contended that at the time of the accident the claimant was driving the auto-rickshaw and that the accident occurred due to his negligence and therefore, he is not entitled to compensation from the 3rd respondent. 4. The claimant was examined as PW1 and Exts.A1 and A2 were marked on the side of the claimant. RW1 was examined on the side of the contesting 3rd respondent Insurance Company. Ext.X1 C.D. file relating to the criminal case was marked on the side of the 3rd respondent. On an appreciation of the evidence, the Tribunal found that the claimant was travelling in the auto-rickshaw at the time of the MACA 1273/2004 3 accident and that the accident occurred due to the negligence of the 1st respondent and awarded a compensation of Rs.67,700/- with interest @ 9% per annum from the date of petition till realization. The 3rd respondent Insurance Company has now come up in appeal challenging the said finding of the Tribunal 5. Heard the learned counsel for the appellant and learned counsel for the claimant. 6. For several reasons we feel that the finding of the Tribunal that the claimant was a passenger in the offending auto-rickshaw and that he was not the driver of the said auto- rickshaw cannot be sustained. RW1 is the Sub Inspector of Police who produced Ext.X1 case diary relating to a criminal case before the Tribunal. He testified that the police has on investigation found that actually the claimant was driving the auto-rickshaw and that the accident occurred due to his negligence and referred the case. The claimant has not chosen to file any protest complaint. Further on going through the case diary it is seen that the claimant has given a statement to MACA 1273/2004 4 the police to the effect that he was driving the auto-rickshaw at the time of the accident. The accident itself shows that due to his negligence the accident occurred. That being so, he is not entitled to any compensation from the respondents. Therefore, we set aside the finding of the Tribunal that the claimant was actually travelling in the auto-rickshaw at the time of the accident and hold that he was the driver of the offending auto-rickshaw at the time of the accident and that the accident happened due to his neglignece. That being so, the claimant is not entitled to any compensation from the third respondent. 7. In the result, the appeal is allowed. The impugned award of the Tribunal is set aside and the O.P. is dismissed. In the circumstances, the parties shall bear their own costs. A.K.BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE . mn.