IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 MACA.No. 1564 of 2004(G) ----------------------- OPMV.1390/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/5TH RESPONDENT: ------------------------------------------ THE NEW INDIA ASSURANCE COMPANY LIMITED, TIRUR NOW REPRESENTED BY ITS ASSISTANT ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G. ROAD, KOCHI-11. BY ADV. SRI.MATHEWS JACOB (SR.) RESPONDENTS/ PETITIONER & RESPONDENTS 1 TO 3: ----------------------------------------------------------------------------- 1. ROY K. PAUL, KANNETH HOUSE, PINDIMANA P.O., KOTHAMANGALAM. 2. K.P. NARENDRANATHAN, S/O. PARAMESWARAN NAIR, POURNAMI (UPPRETH) HOUSE, THRIKKARIYOOR P.O., KOTHAMANGALAM. 3. B.T. SURESH, BADRAYIL HOUSE, KADAYIRUPPU P.O., KOLENCHERY. 4. THE ORIENTAL INSURANCE COMPANY LIMITED, ELENJIKAL PLAZA, KOTHAMANGALAM. BY ADV. SRI.GEORGE CHERIAN FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.No. 3578/2004 IN M.A.C.A.No. 1564/2004 DISMISSED. SD/- M.N. KRISHNAN, JUDGE. 18.07.2008 /TRUE COPY/ P.A. TO JUDGE. vkm M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1564 OF 2004 = = = = = = = = = = = = = = = Dated this the 18th day of July, 2008. J U D G M E N T This appeal is preferred by the 5th respondent in O.P. (MV)1390/99 against the decision of the Motor Accidents Claims Tribunal whereby it has attributed negligence on the 4th respondent and held the 5th respondent liable for the claim. It is the case of the claimant that while he was travelling as a pillion rider in a motor bike an auto rickshaw bearing Registration No.KCE 5460 hit against the bike resulting in injuries to him. He attributed negligence on the side of the auto rickshaw driver. Unfortunately, the whole case has been decided on the basis of a mistake in the number of the auto rickshaw. The Tribunal found that case diary, charge sheet etc. gives the number of the auto rickshaw as KCE 5460 whereas according to the claimant the number is KCE 5480. I have perused the entire case M.A.C.A. 1564 OF 2004 -:: - records. The First Information Statement was given by the rider of the bike. He had given the number as KCE 5460 but it can be seen that a police constable visited the place of accident, inspected the vehicles involved in the accident and prepared a scene mahazar and he had seen the vehicle with Registration No.KCE 5480 involved in the accident lying there and thereafter prepared the mahazar report. He had been examined also as RW1 and he had categorically deposed before the Tribunal he had seen the vehicle involved in the accident at the accident site, prepared the mahazar and had given the correct number as KCE 5480. But, unfortunately, the mistake had emanated right from the moment of giving the First Information Statement, continued to prevail and the driver of the auto rickshaw was convicted by the Court also on that basis. It has to be remembered nobody has got a case that the driver of the auto rickshaw who was convicted in the case was not the driver of the auto rickshaw bearing M.A.C.A. 1564 OF 2004 -:: - No.KCE 5480. There is no case that the owner impleaded is not the owner of the auto rickshaw KCE 5480. Even the Assistant Motor Vehicle Inspector's report would show the number as KCE 5460 but it refers to the correct owner namely the respondent herein, i.e, the 2nd respondent in the claim application. So the view of the Tribunal that there has been some thing to suspect at the time of investigation is not proper. I feel it is only a mistake that has continued and as it was not a controversy between the parties it had not been pin pointed. Just because of that one shall not jump to the conclusion that the whole investigation is wrong and everything has to be undone. From the place of occurrence it is seen that the road is having a width of 4.82 mtrs. and the auto rickshaw was proceeding from east to west. The place of accident is hardly 62 cms. south of the northern tarred end which means the auto rickshaw was on the wrong side. Further the driver of the auto rickshaw, on the plea of M.A.C.A. 1564 OF 2004 -:: - guilty has been convicted by a competent Magistrate Court. So these materials would show that the vehicle involved in the accident was KCE 5480 and the accident had taken place on the wrong side of the auto rickshaw and the evidence of PW1 would further reveal that after overtaking another vehicle the auto rickshaw came and hit on the motor bike. So this is a case where evidence is one sided to indicate that the accident had taken place on account of the negligence of the auto rickshaw driver and therefore the finding of the Tribunal that the accident had taken place on account of the rider of the bike has to be nullified and it has to be held that the driver of the auto rickshaw is responsible for the accident. 2. So far as the quantum is concerned there is no challenge and therefore I do not propose to interfere with the same. So far as the liability is concerned the insurance company has admitted the policy with respect to the vehicle M.A.C.A. 1564 OF 2004 -:: - KCE 5480 and therefore it is liable to indemnify the owner. Therefore the award under challenge is modified and it is held that the amount ordered by the Tribunal has to be paid by the 3rd respondent insurance company in the claim petition, namely the Oriental Insurance Company. They shall deposit the amount within a period of sixty days from the date of receipt of a copy of the judgment and the amount deposited by the appellant in this case shall be reimbursed to him. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-