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 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 MACA.No. 1991 of 2008() ----------------------- (OPMV.1381/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR) .................... APPELLANT/PETITIONER ------------------------------------- JUSTIN MATHEW, S/O. MATHEW, NADUVILE VEETIL HOUSE, KONTHURUTHY KARA, THEVARA, ERNAKULAM. BY ADVS. SRI.BRIJESH MOHAN SRI.T.S.SHYAM PRASANTH RESPONDENTS/RESPONDENTS -------------------------------------------- 1. FRANCIS.T.T, S/O. T.U. THOMAS, THEKKINAPPILLY HOUSE, THAMMANAM.P.O, ERNAKULAM. 2. T. MARY, H. NO. 19/307, THOTTANKARA HOUSE, P.D ROAD, PALLURUTHY.P.O, COCHIN-6. 3. UNITED INDIA INSURANCE CO. LTD., JOS TRUST BUILDINGS, OPP. YMCA, CHITTOOR ROAD, ERNAKULAM, PB NO. 3644, COCHIN - 682 035. 4. UNITED INDIA INSURANCE CO. LTD., JOS TRUST BUILDING, P.B NO. 3644, CHITTOOR ROAD, KOCHI - 682 035. R3 BY ADV. SRI.P.JAYASANKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2010, ALONG WITH MACA NO.2190/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. Nos.1991 & 2190 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 15th day of December, 2010 JUDGMENT Barkath Ali, J. Both these appeals arise out of a common award dated May 26, 2008 in O.P.(MV) Nos. 1380 and 1381 of 2003. Appellants are the claimants in those O.Ps. They challenge the judgment and award of the Tribunal dated May 26, 2008 dismissing their claim for compensation for the loss caused to them on account of the injuries sustained in a motor accident . 2. The case of the appellants/claimants, as testified by PW1 (claimant in O.P.(MV) No.1380 of 2003) and as detailed in the O.Ps., in brief, is this:- Claimant in O.P.(MV) No.1381 of 2003 was riding and the claimant in O.P.(MV) No.1380 of 2003 was pillion riding on the motor cycle bearing registration No. KL-7/AL-1679 along Muvattupuzha - Ernakulam Road on May 5, 2003 at about 12.30 p.m. At that time another motor cycle bearing registration No.KL-7/V-449 came at a high speed and dashed against the motor cycle of the claimants. The claimants fell down and sustained severe MACA 1991/2008 & Con. case 2 injuries. Alleging negligence against the 1st respondent rider of the motor cycle bearing registration No.KL-7/V-449 the claimants filed the O.Ps. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation for the loss caused to them on account of the injuries sustained in the accident. Claimant in O.P.(MV) No.1380 of 2003 claimed a compensation of Rs.2,25,000/- and the claimant in O.P.(MV) No. 1381 of 2003 claimed a compensation of Rs.23,30,500/-, but limited the claim to Rs.8 lakhs. 3. Respondents 1 to 3 are the rider, owner and insurer of the motor cycle bearing registration No.KL-7/V-449. Respondent No.4 is the insurer of the motor cycle of the claimants. Both the Insurance Companies are one and the same. Respondents 1 and 2 remained absent before the Tribunal. Respondents 3 and 4 filed written statement admitting the policy of the respective vehicles but contended that the accident happened while the claimant in O.P.(MV) No.1381 of 2003 has ridden the motor cycle in a rash and negligent manner and hit against an electric post and that MACA 1991/2008 & Con. case 3 therefore, the claimants are not entitled to any enhanced compensation. 4. As both these claims arise out of the same accident, the Tribunal jointly tried both these O.Ps. and passed a common award. PWs.1 to 3 were examined and Exts.A1 to A16 were marked on the side of the claimant. Ext.B1 was marked on the side of the respondents. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the claimant in O.P.(MV) No.1381 of 2003 and found that the claimants are not entitled to any compensation from respondents and thereby dismissed the O.Ps. The claimants have come up in appeal challenging the said finding of the Tribunal. 5. The following points arise for consideration:- 1) Whether the finding of the Tribunal that the accident occurred due to the negligence of the claimant in O.P.(MV) No.1381 of 2003 and consequently dismissing the O.Ps. can be sustained? 2) Whether the claimants are entitled to any compensation? MACA 1991/2008 & Con. case 4 6. Point No.1:- The Tribunal came to the conclusion that the accident occurred when the motor cycle driven by the claimant in O.P.(MV) No.1381 of 2003 hit against an electric post and therefore the accident occurred due to negligence of the said claimant. The above finding of the Tribunal appears to be against the evidence on record. It is true that in Ext.A5 wound certificate in the name of the claimant in O.P.(MV) No.1380 of 2003 (PW1) it is stated that the motor cycle hit against a post. But PW1 the claimant in O.P.(MV) No.1380 of 2003 testified in a convincing manner that the accident happened while the offending motor cycle hit on the back side of his motor cycle. Nothing was brought out during his cross- examination to discredit his evidence. That apart PW3 an independent witness to the accident has also supported the evidence of PW1 on all material particulars. The learned counsel appearing for respondents 3 and 4 was not able to shake their evidence in cross-examination. That apart the police has charged the case against the 1st respondent, which ended in conviction, as evidenced by Ext.A11 certified copy of MACA 1991/2008 & Con. case 5 the judgment in criminal case. No contra evidence was adduced by the respondent Insurance Company. 7. For all these reasons, accepting the evidence of PWs.1 and 3 and Exts.A1 to A16 series we hold that the accident happened when the motor cycle ridden by the 1st respondent hit on the back side of the motor cycle in which the claimants in O.P.(MV) No. 1381 of 2003 was riding and claimant in O.P.(MV) No. 1380 of 2003 was pillion riding and that the said accident occurred due to negligence of the 1st respondent. The finding of the Tribunal on this aspect is set aside. It follows that the claimants are entitled to compensation from respondents 1 to 3, rider, owner and insurer of the offending motor cycle. 8. Point No.2:- The Tribunal has assessed the compensation due to the claimants. As we have found that the claimants are entitled to compensation, we feel that the matter has to be remanded to the Tribunal to assess the compensation to the claimants. 9. In the result, both these appeals are allowed. The MACA 1991/2008 & Con. case 6 award of the Tribunal dismissing the O.Ps. are set aside. It is found that the accident occurred due to negligence on the part of the 1st respondent rider of the offending motor cycle and the claimants are entitled to compensation from respondents 1 to 3. Both the O.Ps. are remanded to the Tribunal for assessing the compensation due to the claimants. The Tribunal shall dispose of the O.Ps. as expeditiously as possible but not later than two months from the date of receipt of a copy of this judgment. The parties shall appear before the Tribunal on March 1, 2011. They are at liberty to adduce further evidence, if any. Send back the records to the Tribunal forthwith. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn MACA 1991/2008 & Con. case 7 A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. Nos.1991 & 2190 of 2008 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= JUDGMENT 15th day of December, 2010