IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 MFA.No. 671 of 2001(B) ------------------------------- OPMV.1644/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANTS/PETITIONERS --------------------------------------- 1. JESSY SCARIA, W/O.LATE M.P.SCARIA, AGED 34, MURITHOTTATHIL HOUSE, SOUTH MARADY, MUVATTUPUZHA. 2. CLINTON SCARIA (MINOR) S/O.LATE M.P.SCARIA, AGED 10 YEARS, MURITHOTTATHIL HOUSE, SOUTH MARADY, MUVATTUPUZHA, REPRESENTED BY HIS MOTHER JESSY SCARIA. 3. CLEETUS SCARIA (MINOR), S/O.LATE M.P.SCARIA, AGED 7 YEARS MURITHOTTATHIL HOUSE, SOUTH MARADY, MUVATTUPUZHA, REPRESENTED BY MOTHER JESSY SCARIA. 4. SCARIA PAILY, S/O.SCARIA, AGED 82 YEARS, RESIDING AT MURITHOTTATHIL HOUSE, SOUTH MARADY, MUVATTUPUZHA. 5. MARIAM PAILY, W/O.SCARIA PAILY, AGED 79, MURITHOTTATHIL HOUSE, SOUTH MARADY, MUVATTUPUZHA. BY ADV. SRI.K.JAJU BABU RESPONDENTS:RESPONDENTS: ---------------------------------------------- 1. A.U.VARGHESE, AYKKARAKUZHIYIL HOUSE, EDAKKATUVAYAL.P.O., ERNAKULAM. 2. BASHEER, S/O.MUHAMMED, KOTTAKUDIYIL HOUSE, PAINGOTTOOR, KADAVOOR, KOTHAMANGALAM. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, KOTHAMANGALAM. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)- R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27/05/2008, THE COURT ON DELIVERED THE FOLLOWING: J.B.KOSHY & P.N.RAVINDRAN, JJ. -------------------------------------- M.F.A.No.671 OF 2001 ------------------------------------- Dated 27th May, 2008 JUDGMENT Koshy,J . Husband of the first appellant died in a motor accident on 21.2.1996. He was riding his motor cycle along Muvattupuzha – Kothamangalam public road from north to south. According to the claimants, the motor cycle was hit by a lorry bearing registration No.KL- D-2942 which came from the opposite side and the deceased was thrown away into the road and on the way to the hospital he died. The lorry was driven by the second respondent, owned by the first respondent and insured by the third respondent. A compensation of Rs.6,00,000/= was claimed. Tribunal calculated a compensation of Rs.2,73,400/=, but, did not award any compensation as claimants were not able to prove that the accident occurred due to the negligence of the second respondent. These findings are questioned by the appellants. Even though the first claimant (PW1) deposed in terms of the application, admittedly, she has not seen the incident. PW2 was residing near the place of incident. He was a lottery seller. According to him, hearing the sound, he went to the spot and by the time he saw the lorry passing along the road towards Kothamangalam side and some persons taking the deceased into a jeep MFA.671/2001 2 and left the place. RW2 deposed that he was sleeping inside a tea shop near the place and he woke up on hearing the sound. He went to the accident spot, but, he did not see the lorry. Tribunal believed RW2 and disbelieved PW2. Admittedly, RW2 was sleeping at the time of incident. He came subsequently after the incident. After hittig the deceased the lorry went away and PW2 saw the lorry going towards Kothamangalam side. In Ext.A1 F.I.R only the matter of accident was mentioned. It is not stated how the incident occurred. It is only stated as a motor accident. Deceased was taken to the hospital. F.I.R is only a starting point of investigation. After investigation, police charge sheeted the second respondent driver. Merely because second respondent driver is also from the locality, claimants cannot be denied compensation. PW2 whose house is very near to the place of incident is a natural witness. He saw the lorry passing towards Kothamangalam side when he went outside immediately after the accident and he also saw the deceased inside the jeep and left the place. His evidence is believable than evidence of RW2 who was sleeping inside the house. Since he was sleeping, he cannot say how the incident occurred. Postmortem certificate only shows the injuries MFA.671/2001 3 on the body. Even though it was mentioned by the Tribunal that the counsel for the insurance company aruged that the deceased was drunken, that was not mentioned in the postmortem certificate. When first information statement was given, police came there, conducted investigation and they found that the accident occurred when lorry driven by the second respondent hit the motor cycle. The evidence of PW2 coupled with Ext.A2 charge sheet etc. shows that the accident occurred due to the negligence of the second respondent. A poor hapless widow at young age maintaining two children may not be able to gather much evidence. But, in this case, evidence of PW2 as well as charge sheet proved that second respondent was negligent. First and second respondents did not appear before the Tribunal to deny the allegations against them. In these circumstances, we are of the opinion that the compensation of Rs.2,73,400/= calculated by the Tribunal should be awarded and deposited by respondents 1 to 3 jointly and severally. Since there is valid insurance coverage, third respondent insurance company is directed to deposit the same with 7% interest from the date of application till its deposit. On deposit of the amount, appellants 4 and 5 are allowed to withdraw Rs.7,500/= MFA.671/2001 4 each. One third of the balance amount is allowed to be withdrawn by the first appellant. Balance should be deposited in a nationalised bank as fixed deposit in the name of 2nd and 3rd appellants enabling them to withdraw the same in equal share on their attaining 21 years of age. The appeal is allowed. J.B.KOSHY JUDGE P.N.RAVINDRAN JUDGE tks