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 23RD MARCH 2011 / 2ND CHAITHRA 1933 MFA.No. 839 of 2002(B) --------------------------------- OPMV.1270/1993 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI .................... APPELLANT(S): PETITIONER: ------------------------------------------ THONNITHODI HARILAL, S/O. UNNEERI, VELLAYOOR AMSOM, PUNGODE DESOM, ERNAD TALUK. BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.P.GOPINATH SRI.SURESH SUKUMAR SRI.K.B.SAJEESH SRI.P.R.SREEJITH RESPONDENT(S): RESPONDENTS: ------------------------------------------------- 1. C.K UMHEEN, S/O. KUNHIKOYA, CHEREDAKUNNAM HOUSE, PENDIKKAD P.O., MALAPPURAM DISTRICT (OWNER). 2. P. BALAKRISHNAN, S/O. PARAMESWARAN NAIR, THEKKINKATTIL VEEDU, NADUVATH, PUNNAPPALA AMSOM, CHANDANGAKULAM DESOM (DRIVER). 3. UNITED INDIA INSURANCE CO.LTD., MALAPPURAM. R3 BY ADV. SMT.P.K.SANTHAMMA THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 23/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.F.A. No. 839 of 2002 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 23rd day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.1270/1993 on the file of the Motor Accidents Claims Tribunal, Manjeri. In this appeal he challenges the judgment and award of the Tribunal dated July 25, 2001 dismissing the O.P. filed by him claiming a compensation of ` 2,53,000/- for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The case of the claimant, as testified by him as PW1 before the Tribunal and as detailed in the petition, in brief is this:- On November 27, 1992 at about 2.30 p.m. while he was riding his motor cycle bearing registration No.KLM 9881 from Poongode to Wandoor and when he reached at Vaniyambalam, a pick up van bearing registration No.KLS 2574, driven by the second respondent, came at a high speed from behind and dashed against the rear portion of the motor cycle, as a result of which he sustained serious injuries. According to him, the MFA 839/2002 2 accident occurred due to negligence of the second respondent, the driver of the offending pick up van. Therefore, he filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of ` 2,53,000/-. 3. Respondents 1 and 2, the owner and the driver of the offending vehicle, filed a join written statement denying the accident. They stated that while the motor cycle was entering the tarred portion of the road from the mud portion, due to the negligence of the claimant, it overturned and fall on the side of the road and that on compassionate ground the second respondent took the claimant to the hospital and that no accident as alleged in the petition happened. The third respondent, the insurer of the offending vehicle, filed a written statement admitting the policy. PWs.1 and 2 were examined and Exts.A1 to A10 were marked on the side of the claimant. RW1 was examined and Exts.B1 and B2 were marked on the side of the respondents. Disability certificate was marked as Ext.X1. On an appreciation of the evidence, the Tribunal found that no such accident as alleged by the claimant happened and that the MFA 839/2002 3 offending pick up van was not involved in the accident and dismissed the O.P. The claimant has come up in appeal challenging the above finding of the Tribunal. 4. Heard the counsel for the claimant and the counsel for the respondents. 5. The following points arise for consideration:- 1) Whether the finding of the Tribunal that no such accident as alleged by the claimant happened can be sustained? 2) Whether the claimant is entitled to any compensation from the respondents? 6. The case of the claimant ,as testified by him as PW1 before the Tribunal, was that after overtaking the pick up van, while he was proceeding in front, the pick van dashed against the back side of the motor cycle. In an attempt to prove the incident, he examined one independent witness PW2. The Tribunal rejected evidence of PWs.1 and 2 on this aspect. We have gone through their evidence, We find no reason to come to a different conclusion Further, RW1 Head Constable who investigated the case has on investigation found that the MFA 839/2002 4 claimant while riding the motor cycle skidded and fell down and that the van did not dash against the motor cycle of the claimant. Therefore, he referred the case, as evidenced by Ext.B2 refer report. In Ext.A2 copy of the wound certificate also there is no reference regarding the involvement of the pick up van in the accident. Though the claimant filed a private complaint Ext.A10 before the Magistrate, it ended in acquittal. 7. For all these reasons, we are of the view that the Tribunal is perfectly justified in rejecting the evidence of PWs.1 and 2 and accepting the evidence of RW1 and finding that no such accident as alleged by the claimant happened and dismissing the O.P. It follows that the appeal has to be dismissed. In the result the appeal is dismissed. No costs. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn