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 11TH JUNE 2010 / 21ST JYAISTHA 1932 MFA.No. 142 of 2003() --------------------- OPMV.1798/1990 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT(S): APPLICANTS: ------------------------- 1. ALEYAMMA THOMAS, MARY VILLA, KANNAMOOLA P.O., THIRUVANANTHAPURAM. 2. THOMAS ANTONY, MARY VILLA KANNAMOOLA P.O., THIRUVANANTHAPURAM. 3. SIMMY ANTONY, MARY VILLA, KANNAMOOLA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR SRI.SUNEESH.M. RESPONDENT(S): RESPONDENTS: --------------------------- 1. CATHERENE VARGHESE, MANAGERS QUARTERS, GUEST HOUSE, THYCAUD, THIRUVANANTHAPURAM. 2. THE DIRECTOR, KERALA STATE INSURANCE DEPARTMENT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.BASANT BALAJI FOR R2 THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 11/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.F.A.No. 142 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimants in O.P.(MV)No.1798/1990 of Motor Accidents Claims Tribunal, Thiruvananthapuram, who are the mother and minor children of the deceased K.T.Antony, challenge the judgment and award of the Tribunal dated June 29, 2002 finding that they are not entitled to any compensation, but awarding only Rs. 25,000/- as compensation under Section 140 of the Act for the loss caused to them on account of the death of deceased K.T.Antony. 2. The facts leading to this appeal in brief are these : On June 29, 1990 the deceased was riding his scooter bearing Reg.No.KEV 2821 along Vazhuthacaud- Theycaud road. While giving side to another vehicle when he applied brake, the scooter skidded and capsized. The deceased sustained severe injuries and he succumbed to the injuries sustained while undergoing treatment in the MFA.No.142/2003 2 hospital. Claimants are his mother and two minor children. According to the claimants, the accident occurred due to the negligence of the first respondent, the owner of the vehicle, who is the wife of the deceased, as she did not keep the vehicle in a road worthy condition. The first respondent as the owner and the second respondent as the insurer of the vehicle are jointly and severally liable to pay compensation to the claimants who are the legal heirs and dependants of the deceased. Claimants claimed a compensation of Rs. 4 lakhs. 3. The first respondent remained absent before the Tribunal and was set ex-parte by the Tribunal. The second respondent, the insurance company filed a written statement admitting the policy, but contended that as the accident occurred due tot he negligence of deceased, the claimants are not entitled to any compensation. 4. PW1 was examined and Exts.A1 to A13 were marked on the side of the claimant. The Tribunal passed an award finding that the claimants are not entitled to any compensation and allowed Rs. 25,000/- as compensation under Section 140 of the Act by award dated 20/07/1995. On an appeal by the claimants as MFA.No.142/2003 3 M.F.A.No.1411/1996, this court set aside that award and found that Ext.A9 policy covers the risk of the driver and remanded matter to the Tribunal to consider whether the deceased or the owner, first respondent was negligent. After remand no further evidence was adduced by the parties. 5. The Tribunal thereafter found that the accident occurred due to the negligence of deceased and rejected the claimants claim for compensation, but awarded a compensation under Section 140 of Motor Vehicles Act under no fault liability. The claimants have now come up in appeal challenging the said finding of the Tribunal. 6. Heard the counsel for claimants and the counsel for Insurance Company. 7. The learned counsel for claimants arguing the appeal submitted that the accident was a result of the negligence of first respondent in not keeping the tyres of scooter road worthy and that therefore the deceased has to be taken as a third party and full compensation has to be awarded to the claimants. The counsel for Insurance Company on the other hand supported the award of the MFA.No.142/2003 4 Tribunal. 8. Therefore, the only question which arises for consideration is whether the finding of the Tribunal that the accident occurred due to the negligence of the deceased can be sustained 9. For several reasons we are inclined to confirm the said finding of the Tribunal. It is not disputed that the accident occurred when the deceased suddenly applied the brake and skidded and fell down. As stated earlier, the case of the claimants was that the first respondent did not keep the scooter in a road worthy condition that the tyres of the scooter were in a worn out condition and therefore the Tribunal must have found that the first respondent was negligent. We are unable to agree. Except the interested version of PW1, the second claimant who was aged only 13, no other evidence was adduced by the claimants to prove their case, which was found to be unreliable by the Tribunal. We have gone through his evidence. We find no reason to come to a different conclusion. That apart, there is no evidence to show that the tyres of the scooter were very old and worn out. If actually the tyres were not in good condition, the deceased would not MFA.No.142/2003 5 have taken the scooter. Therefore, in our view the Tribunal is justified in holding that the accident occurred due to the negligence of the deceased and consequently rejecting the claim of compensation by the claimants. In any event the Tribunal awarded compensation under No fault liability as provided under Section 140 of the Act. That being so, we find no merit in the appeal and the same has to be dismissed. In the result, the appeal is dismissed. No cost. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MFA.No.142/2003 6