IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 MACA.No. 1383 of 2004 --------------------------------- (O.P(MV).NO.208/2001 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA) .................... APPELLANT/PETITIONER: -------------------------------------- GINO JOSE, S/O.JOSEPH, AGED 27 YEARS, THEKKUMPURATHU HOUSE, KURINJIKARA, PARAPPUZHA VILLAGE. BY ADV. SRI.PEEYUS A.KOTTAM. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. C.SURESH KUMAR, S/O.V.K.CHANDRASEKHARAN NAIR, THOLANICKAL HOUSE, V/183, VELLAPPADU P.O. PALA. 2. ABRAHAM JOSE, KALARICKAL HOUSE, THODUPUZHA. 3. THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LIMITED, THODUPUZHA. R2 BY ADV. SRI.C.C.ABRAHAM, R3 BY ADV. SMT.SARAH SALVY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1383 OF 2004 = = = = = = = = = = = = = = = Dated this the 24th day of September, 2010. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thodupuzha in O.P. (MV)208/01. It is the case of the claimant that while he was travelling as a pillion rider in a motorbike due to the overturning of the vehicle on account of the negligence of the driver he sustained injuries and therefore claimed a compensation of Rs.1,00,000/-. The 3rd respondent would contend that it was the claimant himself who was riding the motorcycle and therefore in a petition u/s 166 of the M.V.Act he is not entitled to any compensation. 2. In the trial court Exts.A1 to A10, B1 and B2 were marked. PWs.1 and 2 were examined. The Tribunal fixed the compensation at Rs.19,198/- but dismissed the case on the ground that the claimant himself was riding the motorbike. M.A.C.A. 1383 OF 2004 -:2:- 3. Heard the learned counsel for the appellant as well as the insurance company. The learned counsel for the appellant would submit that the reasons given for non suiting the claimant are not proper. The claimant was travelling as a pillion rider. He had sustained injuries. He had given the First Information Statement on the very next day of the accident. The police has conducted investigation and has charge sheeted the first respondent for rash and negligent driving. So the materials are sufficient to hold that the first respondent was driving the motorcycle. The important circumstances relied upon by the Tribunal are, (1) It is stated in the wound certificate that the accident had taken place while the claimant was travelling in the motorbike. The Tribunal felt that he has not stated that he was travelling as a pillion rider. Travelling can be as a rider or a pillion rider and it is more suitable to a pillion rider rather than a rider. Therefore non M.A.C.A. 1383 OF 2004 -:3:- mentioning of the word pillion rider in the wound certificate should not be militate so much against the claimant. The second aspect is that he submitted that the first respondent also sustained injuries in the accident but when the medical records were sought to be produced the hospital authorities filed an affidavit to the effect that the first respondent has not been treated there. Therefore it would indicate that he has not suffered any injuries. Just because it is found that R1 has not sustained any injuries one cannot jump to the conclusion that the claimant was riding the motorcycle. The police who is entrusted with the investigation of the crime had questioned witnesses, visited the place of accident and had prepared a scene mahazar. Investigating agency had filed a charge against the first respondent for riding the motorbike rash and negligently. Over and above this PWs.1 and 2 had deposed before Court regarding the factum of accident M.A.C.A. 1383 OF 2004 -:4:- and the riding of the bike by the first respondent. Except the mere suggestions put to these witnesses no tangible or acceptable evidence is forthcoming from the respondent to prove it otherwise. Further the first respondent has not chosen to contest the claim at all. So materials available would reveal that there are materials to show the case of the claimant as true and therefore I reverse the finding on the point that it was the claimant who was riding the motorbike. I find that he was only a pillion rider. 4. Learned counsel for the appellant also wanted to challenge the quantum. But on a meticulous scrutiny of the award I find that the Tribunal has been just and reasonable in awarding the compensation with interest. Therefore I decline to interfere with the quantum. 5. In the result the MACA is allowed and an award is passed as follows. M.A.C.A. 1383 OF 2004 -:5:- The claimant is awarded a compensation of Rs.19,200/- with 9% interest on the said sum from the date of petition till realisation and the insurance company is directed to deposit the same within a period of sixty days from the date of receipt of a copy of the judgment. M.N. KRISHNAN, JUDGE. ul/-