IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 MACA.No. 1288 of 2004(C) ----------------------- OPMV.139/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANTS/PETITIONERS: ------------------------------------- 1. MARY MATHEW, W/O. LATE MATHEW K.A., AGED 42 YEARS, KODIKULAM HOUSE, PADUVA P.O., KOTTAYAM. 2. ANEY MATHEW, D/O. LATE MATHEW K.A., AGED 17 YEARS, KODIKULAM HOUSE, PADUVA P.O., KOTTAYAM REPRESENTED BY HER MOTHER MARY MATHEW, (THE 1ST APPELLANT), AS GUARDIAN AND NEXT FRIEND. 3. ANTO MATHEW, S/O. LATE MATHEW K.A., AGED 13 YEARS, KODIKULAM HOUSE, PADUVA P.O., KOTTAYAM REPRESENTED BY HIS MOTHER MARY MATHEW (THE 1ST APPELLANT) AS GUARDIAN AND NEXT FRIEND. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) SMT.MERLIN MATHEW RESPONDENT(S): RESPONDENTS --------------- 1. DHARAM RAJAN, PATTASSERY HOUSE, CHEMPLAVU P.O., KOTTAYAM. 2. P.D. BABYCHAN, MAPPILIKARA HOUSE, AYARKUNNAM P.O., KOTTAYAM. 3. THE NATIONAL INSURANCE COMPANY LTD., KOTTAYAM. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 1288 of 2004 ------------------------------------------------------ Dated: AUGUST 30, 2010 JUDGMENT Barkath Ali, J. Appellants are the claimants in OP(MV) 139/1996 on the file of the Motor Accidents Claims Tribunal, Pala. They are the wife and two minor children of deceased K.A. Mathew who died in a motor accident which occurred on May 28, 1994 at about 7.30 p.m. at Chempilavu. The accident happened while the motorcycle in which he was pillion riding fell into a gutter on the road. The deceased sustained serious injuries and he succumbed to the injuries while undergoing treatment in the hospital on the next day at 2.15 a.m. Alleging negligence against the 1st respondent, rider of the motorcycle, the claimants filed the OP under Sec.166 of the Motor Vehicles Act claiming a compensation of Rs.4,50,000/-. 2. Respondents 1 and 2, the rider and the owner of the motorcycle, remained absent before the Tribunal. Respondent No.3, insurer, filed a written statement admitting the policy and further contended that the 2nd respondent, who is the insured of the offending motorcycle, has transferred the vehicle to the deceased on May 20, 1994 and that therefore claimants are not entitled to any M.A.C.A. 1288 of 2004 2 compensation from this respondent. 3. PWs.1 to 4 were examined and Exts.A1 to A5 were marked on the side of the claimants before the Tribunal. On the side of the contesting 3rd respondent, Exts.B1 and B2 were marked. On an appreciation of evidence the Tribunal found that the motorcycle was being ridden by the deceased himself and that the accident happened due to his own negligence and that therefore the claimants are not entitled to any compensation from the respondents and dismissed the OP. The claimants have now come up in appeal challenging the said finding of the Tribunal. 4. Heard counsel for the appellants/claimants and the counsel for the Insurance Company. 5. The following points arise for consideration: 1. Whether the finding of the Tribunal that the deceased was riding the motorcycle at the time of the accident and that the accident occurred due to the negligence of the deceased himself and the consequential dismissal of the OP can be sustained? 2. Whether the claimants are entitled to any compensation from the respondents? 6. In an attempt to show that the deceased was pillion riding on the motorcycle, on the side of the claimants PWs.1 to 4 were examined. PW.1 is the 1st claimant who is not an eye witness to the M.A.C.A. 1288 of 2004 3 incident. PW.2, brother of deceased Mathew, is also not an eye witness to the incident. He has given the First Information Statement, Ext.A5, wherein he has stated that the deceased was riding the motorcycle at the time of the accident. It is true that subsequently he has changed the said version and gave an additional statement stating that the deceased was pillion riding on the motorcycle. PW.3 would say that he saw Dharam Rajan, 1st respondent, riding the motorcycle, but he was not an eye witness to the incident. PW.4, another eye witness to the incident, would say that she could not say who was riding the motorcycle at the time of the accident. All these apart, the police has referred the case and Ext.A1 is the refer report wherein it is stated that the deceased was riding the motorcycle at the time of the accident. All these facts clearly prove that the deceased was riding the motorcycle at the time of the accident and that the accident occurred due to his negligence. Therefore the Tribunal is perfectly justified in holding that the claimants are not entitled to any compensation from the respondents. In the result, we find the appeal devoid of any merit and the same is hereby dismissed. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-