IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 MACA.No. 1175 of 2009() ------------------------------------ OPMV.911/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): PETITIONER ------------------------ MEENA NARAYANAN, W/O. LATE NARAYANAN, VATTEKKATTU HOUSE, KAZHIMKRAM, VALAPPAD VILLAGE, THRISSUR DISTRICT. BY ADV. MR.T.N.MANOJ RESPONDENT(S): RESPONDENTS -------------------------- 1. M/S. JALEEL AND CO., EDATHIRUTHY, VIA KATTOOR. 2. SALEEL, S/O. KUNNATHUPADIKKAL ABDUL JALEEL, KUTTAMANGALAM DESOM, EDATHIRUTHY VILLAGE, KODUNGALLUR TALUK. 3. E.P.SHEBI, W/O. JALEEL, PROP., M/S. JALEEL AND CO., POKKAKKILLATH HOUSE, KUTTAMANGALAM POST, EDATHIRUTHY. R2 BY ADV. MR.JIJO PAUL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... M.A.C.A.No.1175 OF 2009 ............................................. Dated this the 19th day of January, 2010. J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Irinjalakkuda in OP(MV)No.911/1994. The claimant who is no more is represented by his mother. It is the case of the original claimant that while he was riding on a motor bike from south to north, a car came from the opposite direction and hit on the motor cycle resulting in injuries to him. On the other hand, the respondents would contend that the motor cycle was coming at a hectic speed without any care of rules and regulations, overtook another vehicle and hit on the car which was proceeding through the correct side. Initially the Tribunal found that both the drivers negligent and dismissed both the claim petitions. In appeal, that order was set aside and the matter was remitted back to the Tribunal for fresh consideration. As the original claimant was not available for examination, his further examination could not be continued. PW2 who was only examined in chief was made available for cross examination. The driver of the car was also examined as a : 2 : M.A.C.A.No.1175 OF 2009 witness. An analysis done by the learned Tribunal would reveal that the road at the place of the accident was having a width of 5.70 metres and the accident had taken place 2.02 metres west of the eastern tar end So, the distance from there to the western tar end should be 3.68 metres. As the motor cycle was proceeding from south to north, its correct side was the western side and the correct side of the car which was proceeding from north to south was eastern side. The place of accident is on the eastern side of the road. If the middle line is taken as a point even then it can be seen that the motor cyclist had transgressed 83 cms further east and had hit on the car. The police after investigation prepared scene mahazer and laid charge sheet against the original claimant. The car driver had deposed before the court that the motor cyclist was coming at a very high speed. He had overtaken an auto rickshaw and thereafter had hit on the right side of the car causing heavy damages to it. The witness who had supported the claimant is PW2 and the court below on appreciation of his evidence came to the conclusion that he is not speaking the truth. The : 3 : M.A.C.A.No.1175 OF 2009 court below had given cogent reasons for not believing. One of the reasons is that, according to PW2, hit by the motor cycle was on the left side of the car and not on the right side. If a person had seen the accident, he would not have erred in stating so especially PW2 is also a driver by profession. So, the Tribunal came to the conclusion that his evidence cannot be believed. What is available before the Tribunal was the unreliable evidence of PW2 on one side and the police records showing the place of accident coupled with the evidence of RW2, the driver of the car, on the other side. When evidence of PW2 and driver of the car are analysed, preponderance of probability weigh more with the evidence of the car driver for the reason that unless the motor cyclist had overtaken another vehicle, he would not have come to the wrong side to hit on the car. 2. So from these materials, I cannot find fault with the Tribunal for having come to the conclusion that the accident took place on account of the rash and negligent driving of the original claimant. When it is so, the legal representatives of the claimant are not entitled to any : 4 : M.A.C.A.No.1175 OF 2009 compensation and therefore the award passed by the Tribunal does not call for any interference. The appeal fails and the same is dismissed. M.N. KRISHNAN, JUDGE cl : 5 : M.A.C.A.No.1175 OF 2009