IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 MACA.No. 1467 OF 2010() --------------------------------- OPMV.680/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, VADAKARA .................... APPELLANT(S): 2ND RESPONDENT ------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD., CALICUT, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): CLAIMANTS & RESPONDENTS 1 & 3 ----------------------------------------------------------------------------- 1. AYISHA, W/O.LATE POCKER, AVIKKOTH KANDI MEETHA (HOUSE), P.O.NOCHAD, KOZHIKODE DISTRICT, PIN 673624. 2. NAFEESA, W/O.KUNHIMOIDIN (LATE), AVIKKOTH KANDI MEETHA (HOUSE), P.O.NOCHAD, KOZHIKODE DISTRICT, PIN 673624. 3. SHAMNA, D/O.KUNHIMOIDIN (LATE), AVIKKOTH KANDI MEETHA (HOUSE), P.O.NOCHAD, KOZHIKODE DISTRICT, PIN 673624. 4. HASNA, D/O.LATE KUNHIMOIDIN, AVIKKOTH KANDI MEETHA (HOUSE), P.O.NOCHAD, KOZHIKODE DISTRICT, PIN 673624. 5. SHANIDA, D/O.LATE KUNHIMOIDIN, AVIKKOTH KANDI MEETHA (HOUSE), P.O.NOCHAD, KOZHIKODE DISTRICT, PIN 673624. (RESPONDENTS 3,4 AND 5 ARE MINORS AND THEY ARE REP.BY 2ND RESPONDENT MOTHER AND GUARDIAN). 6. SHAMSUDHEEN N.P., NADUPARAMBIL HOUSE, NOCHAD P.O., PIN 673624, KOZHIKODE DISTRICT. 7. SHIJED S/O.GANESAN, ERANHIKUNIYIL HOUSE, NOCHAD P.O., PIN 673624, KOZHIKODE DISTRICT. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI, JJ. ---------------------------------------------------- M.A.C.A No. 1467 OF 2010 ---------------------------------------- DATED THIS THE 4TH DAY OF AUGUST, 2010 J U D G M E N T Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the appellant, Insurance Company who is the 2nd respondent in OP(MV)No. 680/2007 on the file of Motor Accidents Claims Tribunal, Vadakara challenges the judgment and award of the Tribunal dated February 2, 2010 directing the appellant to pay a compensation of Rs. 4,08,500/- for the loss caused to the claimants therein on account of the death of Shri. Kunhimoideen in a motor accident. 2. The facts leading to this appeal in brief are these: One Mr. Kunhimoideen met with a motor accident on May 11, 2006 at 2.30 p.m. near Chalikkara Kunhiyoor Ayurvedic Hospital. The accident happened while a goods autorickshaw bearing registration No. KL -18-C-2678 driven by the 3rd respondent capsized on the deceased causing him M.A.C.A No. 1467 OF 2010 2 fatal injuries. He succumbed to the injuries on the same day while undergoing treatment at the hospital. The claimants who are his mother, wife and children filed the original petition before the Tribunal under Section 166 of the M.V Act claiming compensation of Rs. 6 lakhs. 3. The first respondent, the owner of the offending bus remained absent before the Tribunal. The 2nd respondent, the appellant herein admitted the policy and further contended that the 3rd respondent, the driver of the offending autorickshaw has violated the policy conditions. The 3rd respondent driver of the offending autorickshaw filed a written statement admitting the accident. 4. PW1 to 3 were examined and Exts. A1 to A7 were marked on the side of the claimants before the Tribunal. On the side of respondents Ext. B1 and X1 were marked. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence of the 3rd respondent and awarded a compensation of Rs. 4,08,500/- M.A.C.A No. 1467 OF 2010 3 with interest at the rate of 7.5% from the date of petition till realization and a cost of Rs. 5000/-. The 2nd respondent, the Insurance Company has now have come up in appeal contending that actually the deceased was travelling in the Goods autorickshaw as a gratuitous passenger and therefore the 2nd respondent is not liable to indemnify the first respondent, the owner of the autorickshaw. 5. There is no substance or merit in the above contention. The evidence of PWs 1 and 2, the 2nd claimant and one of the eye witness to the accident testified that the deceased was a pedestrian and the accident was happened while the autorickshaw capsized on him. Nothing was brought out during their cross examination to disbelieve their evidence. Their evidence is supported by Ext.A1, the copy of FIR and Ext. A3, the copy of charge in the criminal case against the 3rd respondent. Therefore we are of the view that Tribunal is right in finding that the deceased was a pedestrian and the accident happened while the M.A.C.A No. 1467 OF 2010 4 autorickshaw capsized on him. 6. Heard the counsel for appellant, Insurance Company. On going through the judgment of the Tribunal, we felt that even without issuing notice to the respondents this appeal can be disposed of. Hence no notice was issued to respondents. 7. The only contention raised by the appellant was that actually the deceased was a gratuitous passenger in the offending goods autorickshaw and that therefore the appellant is not liable to indemnify the owner of the vehicle. That being so, the contention of the Insurance company that the deceased was a passenger in the goods autorickshaw involved in the accident cannot be sustained. We therefore confirm the finding of the Tribunal on this point that the deceased was a pedestrian and that the accident happened when the offending autorickshaw capsized on him. 8. In the light of the above findings, the appeal has only to be dismissed. M.A.C.A No. 1467 OF 2010 5 In the result, the appeal is dismissed. No cost. Sd/- A.K. BASHEER(JUDGE) Sd/- P.Q.BARKATH ALI(JUDGE) PKK