IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930 MACA.No. 715 of 2004(D) ----------------------------------- (O.P(MV).NO.1595/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL) .................... APPELLANT/3RD RESPONDENTS: ------------------------------------------------- NATIONAL INSURANCE COMPANY LTD., REP. BY ITS ASSISTANT MANAGER, KOCHI REGIONAL OFFICE, T.P.CELL, M.G.ROAD, ERNAKULAM. BY ADV. SRI.P.R.RAMACHANDRA MENON. RESPONDENTS: ------------------------ 1. V.AMBIKA, W/O.LATE MOHANAN CHETTIYAR, KARTHIKA BAHVAN, VAANDA, NEDUMANGAD P.O. THIRUVANANTHAPURAM. 2. SANDHYA (MINOR) D/O.LATE MOHANAN CHETTIYAR, REP. BY HER MOTHER AND NATURAL GUARDIAN. V.AMBIKA, DO. DO. 3. SOORYA (MINOR) D/O.LATE MOHANAN CHETTIYAR, REP. BY HER MOTHER AND NATURAL GUARDIAN V.AMBIKA. DO. DO. 4. ASWATHY (MINOR), D/O.LATE MOHANAN CHETTIYAR, REP. BY HER MOTHER AND NATURAL GUARDIAN V.AMBIKA, DO. DO. DO. 5. THAYAMMA, W/O.LATE PAPANASOM CHETTIYAR, KARTHIKA BHAVAN, DO. DO. DO. 6. V.PADMANABHAN NAIR, MELEKKADU PUTHEN VEEDU, KALADI, KARAMANA P.O. THIRUVANANTHAPURAM. M.A.C.A. NO. 715/2004-D: 7. ANIL.S. S/O.SASI, MELEPUTHENVIAL VEEDU, NEAR HINDUSTAN LATEX, AKKULAM, SREEKARYAM P.O. THIRUVANANTHAPRUAM - 17. ADV. SRI.N.NARAYANAN NAIR FOR R1 TO R5, SRI.NAGARAJ NARAYANAN FOR R1 TO R5, SRI.NAIR AJAY KRISHNAN FOR R1 TO R5, SRI.SAIJO HASSAN FOR R1 TO R5, SRI.A.S.SABU FOR R1 TO R5, SRI.A.G.GIRISH KUMAR FOR R1 TO R5. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03/07/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.A.C.A. NO. 715/2004-D: ORDER ON I.A. NO. 1700/2004 IN M.A.C.A. NO. 715/2004-D DISMISSED SD/- J.B.KOSHY, JUDGE, 03/07/2008. SD/- P.N.RAVINDRAN, JUDGE. //TRUE COPY// prv. J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- M.A.C.A.No.715 OF 2004 ------------------------------------- Dated 3rd July, 2008 JUDGMENT Koshy,J . A Police Constable sustained fatal injuries on 27.8.1998 and succumbed to the injuries on 2.9.1998. His wife, three minor children and mother filed an application for compensation claiming an amount of Rs.10,00,000/=. Tribunal awarded a total compensation of Rs.6,08,788/= after finding that the accident occurred due to the negligence of the driver of the vehicle insured by the appellant insurance company. Contention of the appellant insurance company is that the accident occurred due to the negligence of the deceased police constable himself. The scooter ridden by him hit against an electric post and sustained injuries and the mini bus insured by it was not at all involved in the accident. First respondent before the Tribunal was the owner of the vehicle and second respondent was the driver of the vehicle insured by the appellant insurance company. They have entered appearance through advocate and they also filed written statement stating that mini lorry was not involved in the accident. But, Tribunal, on the basis of evidence adduced in this case, found that the accident occurred as alleged. The accident occurred at 1.30 p.m. on 27.8.1998. MACA.No.715/2004 2 Serious injuries were sustained by the deceased. His position was critical. Next day morning F.I. Statement was filed contending that the accident occurred as the scooter ridden by the deceased was hit by the mini lorry. He was taken to the nearby hospital first and then to the Medical College Hospital. An autorickshaw driver present in the Medical College Hospital informed about the accident to the family of the victim. What was stated by the autorickshaw driver was deposed by PW1, wife of the deceased. PW2 is an eye witness of the accident. His evidence was believed by the Tribunal. Even though driver filed written statement stating that accident did not occur, he did not come to the box and prove the case. Belated application filed by the insurance company for adducing evidence under section 170 of the Motor Vehicles Act was dismissed. Even otherwise, since the matter was being contested by driver and owner, permission to contest on all points by the insurance company is not possible and insurance company can take only defence mentioned under section 149(2) of M.V.Act. Since application for permission under section 170 was dismissed, appeal itself is not maintainable in view of the Supreme Court decision in National Insurance Co. Ltd. v. Nicolletta Rohtagi and others (JT 2002 (7) SC 251). MACA.No.715/2004 3 2. According to the appellant, there are paper reports that it is a self accident. But, Tribunal can only rely on the evidence adduced in the case and not paper reports. In fact, after the F.I.R was registered, investigation was conducted and police charge sheeted the driver of the vehicle insured by the appellant insurance company as can be seen from Ext.A6. From the oral and documentary evidence available in this case, no other conclusion is possible. The accident occurred due to the negligence of the driver of the mini lorry insured by the appellant insurance company. Therefore, we see no ground to interfere in the impugned award. The appeal is dismissed. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks