IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 MACA.No. 292 of 2003() ---------------------- OPMV.2916/1994 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER ---------------------------------- SUDHAKARAN G., S/O. GOPINATH K., OOSHAYIL THAHAYIL HOUSE, PANACHIKAVU P.O., CHANGANACHERRY. BY ADV. SRI.P.RAVINDRA BABU RESPONDENT(S): RESPONDENTS -------------------------- 1. THE MANAGING DIRECTOR K.S.R.T.C., THIRUVANANTHAPURAM. 2. S.GOPALAKRISHNAN CHETTIAR, S/O. SANKARANARAYANAN CHETTIAR, ASHANIVAS, ERAVUKATTU BHAGOM, KALARCADU P.O., ALAPUZHA.(DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 22.9.2009 IN IA 2572/09) ADV. SRI.JOHNSON.P.JOHN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A.292 of 2003 ------------------------------------------------------ Dated: MAY 27, 2010 JUDGMENT Barkath Ali, J. In this appeal under sec.173 of the Motor Vehicles Act the claimant in OP(MV) 2916/1994 on the file of the Motor Accidents Claims Tribunal, Kottayam, challenges the judgment and award of the Tribunal dated November 30, 2002 dismissing the OP on the ground that the claimant failed to prove the accident. 2. The case of the claimant as stated in the petition before the Tribunal in brief is this: On January 17, 1994 the claimant was walking along the side of M.C. Road, Changanacherry town and when he reached near the bus stand, he was knocked down by the KSRTC bus driven by the 2nd respondent causing him serious injuries. According to the claimant the accident occurred due to the negligence on the part of the 2nd respondent. The 1st respondent as the owner and the 2nd respondent as the driver of the offending bus are jointly and severally liable to pay compensation to the claimant. 3. The respondents in their written statement contended that the claimant attempted to board a moving bus and fell down and sustained injuries and that therefore he is not entitled to claim any M.A.C.A.292 of 2003 - 2 - compensation from the respondents. 4. Exts.A1 to A11 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the respondents. On an appreciation of evidence the Tribunal dismissed the OP finding that there was negligence on the part of the claimant as he attempted to board a moving bus and fell down and sustained injuries. The claimant has now come up in appeal challenging the said finding of the Tribunal. 5. Heard the counsel for the appellant/claimant and the counsel for the Insurance Company. 6. The only point which arises for consideration is whether the finding of the Tribunal that the accident occurred while the claimant attempted to board a moving bus and that there was no negligence on the part of the 2nd respondent can be sustained. 7. For the following reasons we are inclined to agree with the above finding of the Tribunal. The claimant has not chosen to come forward and swear that the accident as alleged by him happened. On the other hand, in Ext.A6 copy of wound certificate the alleged cause was shown as “fall from the bus”. The claimant has not chosen to come forward to swear that he has not stated so to the doctor. For all these reasons we are of the view that the Tribunal is perfectly M.A.C.A.292 of 2003 - 3 - justified in holding that the accident occurred due to the negligence on the part of the claimant and that therefore he is not entitled to any compensation from the respondents. 8. There is another aspect in this case. Even though the accident occurred due to the negligence on the part of the claimant, he will be entitled for compensation under sec.140 of the Motor Vehicles Act i.e. under “no fault liability”. The accident is of the year 1994. During that period the compensation under “no fault liability” was Rs.12000/-. Therefore the judgment of the Tribunal dismissing the OP is set aside and an award is passed for Rs.12000/- in favour of the claimant. The claimant is also agreeable for the same. The claimant will be entitled to interest at the rate of 7.5% per annum from the date of petition till realisation. In the result the impugned award of the Tribunal dismissing the OP is set aside. An award is passed allowing the claimant to realise Rs.12,000/- as compensation from the respondents with interest at the rate of 7.5% per annum from the date of petition till realisation. The 1st respondent being the owner of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment. The appeal is disposed of as found above. M.A.C.A.292 of 2003 - 4 - A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-