IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 1ST JUNE 2010 / 11TH JYAISTHA 1932 MACA.No. 750 of 2003(D) ----------------------------------- [O.P(MV).NO.250/1998 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA] .................... APPELLANT/3RD RESPONDNET IN THE O.P(MV): ---------------------------------------------------------------------- NATIONAL INSURANCE COMPANY LTD., REPRESENTED BY ITS BRANCH MANAGER, THODUPUZHA BRANCH, REPRESENTED BY THE ASSISTANT MANAGER, NATIONAL INSURANCE COMPANY, MOTOR THIRD PARTY CLAIMS SECTION, AJAY VIHAR, M.G.ROAD, ERNAKULAM. BY ADV. SRI.LAL GEORGE. RESPONDENTS/PETITIONER & RESPONDENTS IN THE O.P(MV): -------------------------------------------------------------------------------------------- 1. TAWAZ MUHAMMED SIDDIQUE, KUNNUMPURATH HOUSE, MAILAKOMBU P.O., KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT. 2. ABDUL RASSAK @ KUNJU, S/O. HUSSAIN, MARUTTIKUNNEL HOUSE, EDAKATTU JUNCTION, MADAKKATHANAM KARA, MANJALLOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. 3. P.K.ISMAIL S/O. KAMALUDEEN, PALAYAMPARAMBIL HOUSE, CHILAVU KARA, KARIMANNOOR VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT. 4. K.I.MUHAMMED UNAS, S/O. IBRAHIM HAJI, KUNNUMPURATH HOUSE, KANJAR P.O., THODUPUZHA. M.A.C.A. NO. 750/2003-D: 5. K.B.ABIL KUMAR S/O. BHASKARAN, SWATHY RAMAKRISHNA NAGAR, N.S.S.COLLEGE P.O., PALAKKAL. 6. ORIENTAL INSURANCE COMPANY LTD., REPRESENTED BY BRANCH MANAGER, M.G.ROAD (NEAR JOSE JUNCTION), ERNAKULAM. R1 BY ADVS. SRI.VIJU ABRAHAM, SRI.JOY C. PAUL, R5 BY ADV.SRI.P.JACOB MATHEW, R6 BY ADV.SRI.M.JACOB MURICKAN. THIS MOTOR ACCIDENTS CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 750 of 2003 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 1st day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the third respondent, Insurance Company, in O.P.(MV) No.250 of 1998 of Motor Accidents Claims Tribunal, Thodupuzha challenges the judgment and award of the Tribunal dated June 9, 2003 awarding a compensation of Rs.1,77,970/- for the loss caused to the claimant on account of the injuries sustained by him in a motor accident. 2. The facts leading to this appeal in brief are these :- The claimant was a student, aged 18 at the time of the accident. On February 18, 1998 at about 9.15 p.m., the claimant was pillion riding on a motor cycle bearing Reg.No.KL7-S-3370, ridden by the fourth respondent, along Moolamattom-Thodupuzha public road. When they reached near K.S.R.T.C. Bus Stand at Thodupuzha, a lorry bearing registration No. KL-6 5150 came at a high speed from the MACA 750/2003 2 opposite side, ridden by the first respondent, and dashed against the motor cycle of the claimant. The claimant sustained very serious injuries. First respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending lorry are jointly and severally liable to pay compensation to the claimant. The Claimant claimed a compensation of Rs.5 lakhs. 3. Respondents 1 and 2, the driver and owner of the offending lorry remained absent before the Tribunal. The third respondent, the insurer of the offending lorry, filed a written statement admitting the policy, but contending that the accident occurred due to the negligence on the part of the rider of the motor cycle. The rider, owner and insurer of the motor cycle were impleaded as addl. respondents 4 to 6 in the O.P. Respondents 4 and 5 remained absent and sixth respondent filed a written statement, attributing negligence to the first respondent. 4. PW1 was examined and Exts.A1 to A12 were marked on the side of the claimant before the Tribunal. Exts.B1 and B2 MACA 750/2003 3 were marked on the side of the respondents. The Tribunal, on an appreciation of evidence, found that the accident occurred due to the negligence on the part of the first respondent and awarded a compensation of Rs. 1,77,970/- to the claimant. The third respondent, insurer of the offending lorry, has come up in appeal challenging the said finding. 5. Heard the counsel for the appellant/Insurance Company and learned counsel for respondents 1, 5 and 6. 6. The learned counsel for the appellant argued that the claimant as PW1 admitted that he was riding the motor cycle and that as he has no driving licence to drive the motor cycle and that therefore, the Tribunal ought to have found that the accident occurred due to the negligence of the claimant. The learned counsel for the first respondent/claimant, on the other hand, argued that mere absence of the licence on the side of the claimant will not show that the accident occurred due to his negligence. 7. The following points arise for consideration :- 1) Whether the finding of the Tribunal that the accident occurred due to the negligence on the MACA 750/2003 4 part of the first respondent, driver of the offending lorry can be sustained ? 2) Whether there was any negligence on the part of the claimant ? 3) Whether the claimant is entitled to any enhancement of compensation. 8. It is true that PW1, when cross-examined, admitted that he was riding the motor cycle and that he has no licence to drive the same. The learned counsel for the appellant argued that absence of licence on the part of the claimant will itself prove that the accident occurred due to negligence on the part of the claimant. We are unable to agree. The Apex Court has in Sudhir Kumar Rana v. Surinder Singh and others {2008 (3) KHC 883 (SC)} held thus: “8. If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the Courts below that it was the driver of the mini-truck which was being driven rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and MACA 750/2003 5 negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence.” The principles laid down in the above case squarely apply in this case also. 9. PW.1, the claimant, testified before the Tribunal that the accident occurred due to the negligence on the part of the 1st respondent. His evidence was not discredited in cross- examination. Further, his evidence is supported by Ext.B1 final report filed by the police charging case against the 1st respondent. There is no contra evidence adduced on the side of the 3rd respondent to prove otherwise. Respondent No.3 has not chosen to examine the 1st respondent as a witness to show that there was no negligence on his part or to show that there was negligence on the part of the claimant also. That being so, the Tribunal is perfectly justified in believing the evidence of PW.1 and holding that the accident occurred due to negligence on the part of the 1st respondent, the driver of MACA 750/2003 6 the offending lorry, and that there was no negligence on the part of PW.1. 10. The Tribunal awarded a compensation of Rs.1,77,790/- with interest at 9% p.a. from the date of petition till realization. Taking into consideration the nature of the injuries sustained and the period of treatment the claimant has undergone and the fact that he has spent more than Rs.1,00,000/- for treatment, we feel that the compensation awarded by the Tribunal is just and reasonable. 11. In view of the above findings, we find that the appeal is devoid of any merit and the same is liable to be dismissed. In the result, the appeal is dismissed. Parties shall bear their own costs. A.K. BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.