IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 MACA.No. 639 of 2009(F) -------------------------- OPMV.656/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): PETITIONER --------------------------------- THOMAS, AGED 65 YEARS, S/O.VARKEY, MUTHEDATHU HOUSE, KARUKAPILLY KARA, KARUKAPILLY VILLAGE. BY ADV. SRI.JOY C. PAUL RESPONDENT(S): RESPONDENTS: -------------------------------------- 1. JIBY PAULOSE, S/O.PAULOSE, PANDALIL HOUSE, OORAMANA P.O., RAMAMANGALAM. 2. PAULOSE, S/O.PATHROSE, KARICKAL HOUSE, THAMMANIMATTOM, POOTHRIKKA. 3. THE ORIENTAL INSURANCE CO. LTD., PATTAMANA BUILDINGS, RAILWAY STATION ROAD, ALWAYE. ADV. SRI.A.R.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 639 OF 2009 = = = = = = = = = = = = = = = Dated this the 15th day of October, 2009. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV)656/05. The claimant, 65 years old at the time of the accident sustained injuries in a road accident and the Tribunal dismissed the claim on the ground that the negligence is not proved. 2. Perused the records and heard the learned counsel for the insurance company. The accident took place while the claimant was travelling as a pillion rider in a motor cycle ridden by the 2nd respondent. The Tribunal basing on a entry in Ext.A7 wound certificate that “it is a spoke wheel injury from bike” held that the accident is on account of the negligence of the claimant himself. The wound certificate would reveal that it was the rider of the bike who had taken him to the hospital. It is also reported as a road traffic accident. One cannot rely absolutely on that because it was M.A.C.A. 639 OF 2009 -:2:- the rider of the bike who had given the information. Since the police did not register a case the claimant moved the Magistrate Court and after enquiry charge was filed and the accused appeared and pleaded guilty. So the accused in the case namely 2nd respondent herein had pleaded guilty before a competent Court of jurisdiction. Now the Tribunal had relied upon a sentence deposed by the claimant in the box at the time of cross examination, “...................................... ................................................................................... So the negligence is not given a total go by but it is the carelessness of the driver. He has consistently stated before Court in the chief examination in the form of an affidavit that the accident took place when there was an attempt by another vehicle to overtake the motorbike, this rider swerved the vehicle as a result of which his leg might have gone inside the spoke wheel resulting in injuries to him. A reading of the evidence of PW1 would show that he has attributed negligence on the rider. So the police records coupled with the plea of guilt and corroborated by the evidence of PW1 in M.A.C.A. 639 OF 2009 -:3:- this case are consistent with the plea negligence and therefore the Tribunal should have found negligence on the rider and not otherwise. The insurance company took it as a collusion and suggested that the case has been registered by influencing the police. That itself goes against collusion. Therefore the materials are only one sided and the Tribunal should have found that the cause of accident is due to the negligence of the rider of the bike. Therefore I hold that the accident took place on account of the negligence of the rider of the motor bike. 3. Unfortunately the Tribunal has not calculated the amount which the claimant is entitled to. I find large number of receipts are produced in the form of medial bills which requires evidence and therefore I remit the matter to the Tribunal for fixing a proper compensation. 4. Learned counsel for the insurance company has also raised the plea of non liability of the case of a pillion rider. Let that also be considered by the Tribunal. M.A.C.A. 639 OF 2009 -:4:- In the result the MACA is partly allowed and finding of negligence is set aside and it is held that the accident has taken place on account of the negligence of the rider of the motorbike. The matter is remitted back for considering the question of quantum as well as the liability of the insurance company as the claimant being a pillion rider and for that purpose the Tribunal shall permit all the parties concerned to produce documentary as well as oral evidence in support of their respective contentions and then the matter be disposed of in accordance with law. Parties are directed to appear before the Tribunal on 25.11.2009 and in case the claimant does not appear on that day, let notice be given to the counsel appearing for the claimant in that Court. M.N. KRISHNAN, JUDGE. ul/-