IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 MACA.No. 388 of 2004() ---------------------- ( O.P.(MV)NO.726/01 OF MACT, MUVATTUPUZHA) APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- T.K.VIJAYAN, S/O. LATE KUTTAPPAN, THANNIKOTTIL HOUSE, KADAYIRIPPU P.O., KOLENCHERRY. BY ADV. SRI.T.K.KOSHY RESPONDENT(S): RESPONDENTS -------------------------- 1. JOSEPH P.V., S/O. VARGHESE, CHERIYA OORAYAM, KUNNACKAL P.O., VALAKOM, MUVATTUPUZHA. 2. THE ORIENTAL INSURANCE CO.LTD., MUVATTUPUZHA. ADV. SRI.A.R.GEORGE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.388 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of August, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.726/2001 on the file of Motor Accidents Claims Tribunal,Muvattupuzha challenges the judgment and award of the Tribunal dated November 24, 2003 dismissing the O.P. 2. The case of the claimant as testified by him as PW1 before the Tribunal and as detailed in the claim petition in brief is this: On February 26, 2001 at about 8.30 p.m., the claimant was riding his motor cycle bearing Reg.No.KL-7/R 1628 along Perumbavoor- Kolenchery road. At that time a jeep bearing Reg.No.KL-7/F 3552 driven by the first respondent came at a high speed from the opposite side and dashed against the motor cycle of the claimant. Claimant sustained serious injuries. According to the claimant, the accident occurred due to the negligence on the part of the first respondent. First respondent as the owner cum driver of the offending jeep and second MACA.No.388/2004 2 respondent as its insurer are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs.1,50,000/-. 3. First respondent, the owner cum driver of the offending jeep did not file any written statement before the Tribunal. Second respondent, the insurer of the offending jeep filed a written statement admitting the policy and further contended that the said jeep is not involved in the accident and that the claimant has fabricated this case to obtain compensation from the respondents. 4. Pws 1 to 3 were examined and Exts.A1 to A12 were marked on the side of the claimant. No evidence was adduced by the contesting second respondent. The Tribunal on an appreciation of evidence found that the jeep bearing Reg.No.KL-7/F 3552 is not involved in the accident and dismissed the claim petition. The claimant has now come up in appeal challenging the said finding of the Tribunal. 5. Heard learned counsel for the appellant/claimant and the counsel for the Insurance Company. MACA.No.388/2004 3 6. The following points arise for consideration : 1. Whether the finding of the Tribunal that the jeep bearing Reg.No. KL-7/F 3552 was not involved in the accident and consequently dismissing the claim petition can be sustained ? 2. Whether the claimant is entitled to any compensation ? 7. For the following reasons, we are inclined to confirm the finding of the Tribunal that the claimant failed to prove that the alleged offending jeep was involved in the accident. It is the admitted case of the claimant that at the time of the accident, he did not recognise the vehicle or identify the driver. No witnesses were examined to prove that the offending vehicle was driven by first respondent at the time of the accident. The evidence of PW2, who was the pillion rider of the motor cycle, does not help the claimant to prove that it was the alleged offending jeep which dashed against his motor cycle. 8. We have gone through the evidence of Pws 1 and 2. The version of PW1 regarding the tracing of vehicle from the retreat centre appears to be too artificial to believe. Learned counsel for the claimant MACA.No.388/2004 4 argued that police has charged case against the first respondent and he has pleaded guilty before the Magistrate Court as evidenced by Ext.A5, the certified copy of the judgment in the Criminal Case and that therefore it has to be held that it was the alleged jeep bearing Reg.No. KL-7/F 3552 which was involved in the accident and that the first respondent was its driver and that the accident occurred due to the negligence of the first respondent. 9. We are unable to agree. Merely because criminal case was charged against the first respondent and that he pleaded guilty before the Magistrate Court, it cannot be said that, it was the alleged vehicle, which was involved in the accident and that it was first respondent, who was driving the vehicle at the time of the accident. As the claimant or PW2 has not identified the vehicle or the driver at the time of the accident, the claimant should have examined some independent witnesses to show that this vehicle was involved in the accident and that the first respondent was driving the same. The claimant has not chosen to examine any of the alleged eye witness to the incident to prove the accident. MACA.No.388/2004 5 10. For all these reasons, confirming the finding of the Tribunal, we hold that the claimant has failed to prove that the jeep bearing Reg.No. KL-7/F 3552 was involved in the accident. That being so, it has to be held that the claimant is not entitled to any compensation from the respondents. Therefore, the appeal has to be dismissed. In the result, the Appeal is dismissed. No cost. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.388/2004 6