IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 MACA.No. 371 of 2003(C) ------------------------------- OPMV.573/1994 of II ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT/2ND RESPONDENT : -------------------------------------- THE MANAGER, THE ORIENTAL INSURANCE COMPANY LIMITED, KOLLAM NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB (SR.) RESPONDENT/PETITIONER : ---------------------------------- RAJAN PILLAI, S/O.RAMACHANDRAN PILLAI, SOBHANA BHAVAN, PUNTHALATHAZHAM, KILIKOLLOOR P.O KOLLAM. (NO RELIEFS ARE CLAIMED AGAINST THE RESPONDENTS 1 AND 3 IN THE ABOVE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL) ADV. SRI.C.UNNIKRISHNAN (KOLLAM) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO.371/03 ORDER ON IA 1266/03 IN MACA 371/03 DISMISSED 25.9.08 SD/-, M.N.KRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 371 OF 2003 --------------------- Dated this the 25th day of September, 2008 JUDGMENT This appeal is preferred against the award passed by the IInd Addl. Motor Accident Claims Tribunal, Kollam, in OP(MV) 573/94. The Tribunal awarded a compensation of Rs.85,700/- to the claimant and directed the Insurance Company to deposit the amount. It is against that decision, the Insurance Company has come up in appeal. 2. The case of the claimant before the Tribunal is that while he was riding on a motor bike, a lorry which came from the opposite direction after overtaking another vehicle, hit on the bike as a result of which both the vehicles as well as the claimant fell down and sustained injuries. On the other hand, the Insurance Company would contend that the accident did not involve the lorry at all and it was the claimant who had gone and hit on an electric post on account of the loss of sight due to non dimming of light by the bus, which came from the opposite direction. The claim petition is filed only against the driver, owner and the Insurance Company of the MACA No. 371/03 2 lorry. Unless it is proved that the lorry is involved in the accident, the claim petition cannot be sustained. The Tribunal has considered the evidence of PW1, PW2, RW1 and RW2. At last, on the basis of the charge sheet filed by the police, arrived at a decision that it was on account of the negligence of the lorry driver that the accident had taken place. It is this finding that is assailed in this appeal. 3. RW2 is a key witness to the case. He is the first informant. He had stated before the police that he was riding his bike at a distance of about 10 to 12 feet behind the claimant's bike and when it reached near the place of accident, a bus which was coming from the opposite direction did not dim the light properly as a result of which the claimant lost his sight and dashed on an electric post resulting in injuries to him. This witness had been examined as RW2 and he had deposed in lines with the same. He had been cross examined but nothing is brought out to discredit his evidence. Now the evidence on the side of the claimant is that of himself and PW2. PW2 is alleged to be an incident witness. According to him he was also driving along the same road and that he had witnessed the accident whereby the lorry had hit on the motor bike resulting in MACA No. 371/03 3 injuries to the claimant. The Tribunal analysed his evidence and found that if he had been there he would have been made as a witness to the case, which is not done. Secondly it has to be stated that even according to PW2 he knows the claimant very well and suppose the claimant had been involved in such a very serious accident, in the ordinary course of conduct, he would have helped him to reach the hospital. So the Tribunal came to the right conclusion that PW2's version that he is a witness to the accident cannot be believed. An exhaustive reading of the award passed by the Tribunal also would indicate that it has not accepted the evidence of PW1 and PW2 and has accepted the evidence of RW1. But in the last sentence comes to a different conclusion on the basis of the charge sheet filed by the police. 4. I am afraid that such a decision cannot be arrived at by the Tribunal for the reason that it is an independent body which is bound by the law and the evidence is to be appreciated, though the rigour of evidence in motor accident cases may not be the same as in a civil or criminal case. So the materials available in this case only shows that the case projected by the Insurance Company appears to MACA No. 371/03 4 be more proper that the accident took place when the claimant hit on an electric post on account of the non dimming of the light by the bus, which was coming from the opposite direction. It has to be stated that the claim is filed under section 166 against a lorry and it is not proved that the lorry is involved in the accident at all. Therefore the finding of the Tribunal that the claimant is entitled to compensation, cannot be sustained. Therefore, the appeal succeeds. It is allowed. The claim application is dismissed. The amount deposited by the Insurance Company can be withdrawn by them on proper application before the court below. M.N.KRISHNAN, JUDGE vps MACA No. 371/03 5