IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 MACA.No. 343 of 2003 ------------------------------------ OPMV.2059/1992 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER: C.P. SSEBASTIAN @ SUNNY, CHERIAMAKKAL, PATTITHANAM P.O., KOTTAYAM DISTRICT. BY ADV. SMT.BETTY K.ALUKKA RESPONDENTS/RESPONDENTS: 1. MRS. REMADEVI, W/O. BALACHANDRAN, PUTHIYIDATHU HOUSE, ETTUMANOOR. 2. MR. THANKACHAN, S/O. CHACKO, KUTTIKATTU HOUSE, ULLANADU P.O., PRAVITHANAM, PALA. 3. THE ORIENTAL INSURANCE CO.LTD., KOTTAYAM DIVISION. ADV. SRI.MATHEWS JACOB (SR.) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.A.C.A.No.343 of 2003 --------------------------------- JUDGMENT Balachandran, J. The petitioner in O.P.(MV)No.2059/92 on the file of the Motor Accidents Claims Tribunal, Kottayam is the appellant. He filed an application claiming a total compensation of Rs.1,50,000/- on account of the injuries caused to him in a motor accident. The Tribunal, considering the evidence in the case, came to the conclusion that the case of the appellant that he sustained injuries in a motor accident, as alleged, is not proved and consequently dismissed the claim petition. Hence this appeal. 2. It is contended before us by the learned counsel for the appellant that the Tribunal should have, on a proper evaluation of the entire evidence in the case, found that the accident alleged is true and should have allowed compensation for the MACA 343/03 2 injuries sustained to the appellant. 3. It is the case of the appellant/petitioner that at about 1 p.m. on 16.7.1992, while he was riding his scooter bearing Reg.No.KEK 8004, an autorickshaw bearing Reg.No.KL-5/A 4847, owned by the first respondent and driven by the second respondent, knocked him down and he sustained injuries and became unconscious; that he was treated in the Medical College Hospital, Kottayam; that the accident occurred solely due to the negligence of the second respondent, who was driving the autorickshaw; that the third respondent is the insurer of the autorickshaw and that all the respondents are liable for the compensation claimed. 4. The third respondent resisted the claim contending that the allegation that the accident occurred when the autorickshaw hit the scooter is false and that the autorickshaw was not at all involved in the alleged incident. They further MACA 343/03 3 contended that there is collusion between the appellant and respondents 1 and 2 in advancing the claim as against them, who have insured the autorickshaw. According to them, the incident took place when the scooter had a skid on the road while the appellant was riding the scooter under the influence of alcohol and then there was rain also. 5. The appellant gave evidence as PW1 and he also examined PW2 to speak to the occurrence. According to PW1, the autorickshaw which came from the opposite side knocked him down while he was riding the scooter and immediately he became unconscious and regained consciousness only after eight days. According to PW2, he witnessed the occurrence; that PW1 was riding the scooter at slow speed and the autorickshaw driven negligently by the second respondent was knocking down the scooter and PW1 was taken in the same autorickshaw to the Medical College Hospital. However, he admitted in cross-examination that PW1 is his close friend. He MACA 343/03 4 also stated that his house is situated 3½ kilometres away from the place of incident and stated further that while he was returning after the second show, he happened to witness the incident. He further testified that after the incident he went to the residence of PW1 and informed his wife about the incident on the same day, namely on 16.7.1992. Crime No.197/92 was registered by the police in relation to the occurrence at 5.30 p.m. on 16.7.1992 on the basis of the F.I. Statement given by the wife of PW1, the injured and that is Exhibit B2. FIR registered on the basis thereof is Exhibit B4. On the side of the appellant those documents were being suppressed. 6. The F.I. Statement was recorded at the Medical College Hospital when the wife of the appellant reached there on getting information about the accident. Then she had no case in her statement that her husband sustained injuries when an autorickshaw hit against the scooter, which PW1 MACA 343/03 5 was riding. She also does not say that it was PW2 who had taken her husband to the hospital. These are material particulars which one would normally find in the F.I. Statement had those been facts to the knowledge of the wife of the injured. 7. It is worthy to note that Exhibit B2 was recorded only at 4 p.m. and wife of the injured had sufficient opportunity also to enquire about the cause of the accident. The Tribunal also observed that in Exhibit A5 wound certificate, the doctor has stated that the injured had the smell of alcohol. If at all it was PW2 who had taken the injured to the hospital, especially when the injured is his close friend, he would have necessarily disclosed as to how the incident occurred to the doctor as stated by him in court. On the other hand, Exhibit A5 showed that the injured was brought to the hospital by one Mathew, where as PW2 is Joseph. These aspects go a long way to belie the testimony of PW2. The Tribunal also MACA 343/03 6 observed that in Exhibit A1 charge against the second respondent he pleaded guilty of the charge and fine was imposed on him and that it was a collusive affair between the claimant and respondents 1 and 2. Further, the evidence of PW1 showed that the second respondent is a neighbour having residence adjacent to his wife's house at Piravithanam. In inspection of the autorickshaw by the Motor Vehicle Inspector, no damage could be found to the autorickshaw which is alleged to have collided with the scooter. Considering all the above aspects, the Tribunal came to the conclusion that the appellant/petitioner sustained injuries by falling down from the scooter on his own and that the alleged involvement of an autorickshaw is a subsequently cooked up story, so as to claim compensation from the third respondent. The reasons stated by the Tribunal to dismiss the claim petition do not deserve to be upset so as to come to a different conclusion, in the circumstances MACA 343/03 7 discussed above. We concur with the findings of the Tribunal that the accident alleged is not true and that there was no involvement of autorickshaw insured by the third respondent in the appellant/ petitioner falling down from his scooter and sustaining injuries. In the result, this appeal deserves only to be dismissed and it is, accordingly, dismissed. (J.B.Koshy, Judge) 24th September, 2008 (K.P.Balachandran, Judge) tkv MACA 343/03 8 J.B.Koshy & K.P.Balachandran, JJ. ----------------------- M.A.C.A.No.343 of 2003 ----------------------- JUDGMENT 24th September, 2008