IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 MACA.No. 131 of 2004() ---------------------- OPMV.201/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): PETITIONER -------------- JUMAILA, AGED 24, WIFE OF MUSTHAFA, RESIDING AT CHAKKALYEKKAL HOUSE, VANNAPPURAM VILLAGE, THODUPUZHA. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT(S): RESPONDENTS --------------- 1. MEERAN, SON OF AYSHA, RESIDING AT CHAKKLAYEKKAL HOUSE, NOUSE NO.157/6, VANNAPURAM VILLAGE, THODUPUZHA. 2. P.K.MUJEEB, AGED 26 YEARS, SON OF KARIM, RESIDING AT PADIPPURA HOUSE, VANNAPPURAM VILLAGE, THODUPUZHA. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, ANNAPOORNI MANDIR, CULLE ROAD, MULLACKAL,ALLEPPEY. ADV. SRI.A.R.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.131 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of June, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.201/2000 on the file of Motor Accidents Claims Tribunal, Thodupuzha challenges the judgment and award of the Tribunal dated June 7, 2003 dismissing her claim for compensation on account of the injury sustained by her in a motor accident. 2. The facts leading to this appeal in brief are these : On February 12, 2000 claimant was travelling in a mini lorry bearing Reg.No.KL 4/C - 28 along with her husband and her ten month old daughter from Vannappuram to Kayanady near Vadammamchery. They were carrying river sand in the mini lorry. When they reached at Thenidukku, due to the negligence on the part of the driver of the mini lorry, who is her husband, the mini lorry hit on a rock on the side of the road. The claimant sustained serious injuries. First respondent as the owner, second respondent as the driver and third respondent as the MACA.No.131/04 2 insurer of the offending mini lorry are jointly and severally liable to pay compensation to the claimant. Claimant claimed a compensation of Rs. 1,50,000/-. 3. Respondents 1 and 2, the owner and the driver of the offending mini lorry remained absent before the Tribunal. The third respondent, the insurer of the offending mini lorry, filed a written statement admitting the policy, but contended that as the claimant was a gratuitous passenger in a goods vehicle, she is not entitled to get compensation from the third respondent. 4. This O.P. was jointly tried along with O.P.(MV) No.200/2000 filed by the husband of the claimant and a common award was passed. Pws 1 and 2 were examined and Ext.A1 to A14 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. Ext.B1, copy of the policy, was also marked. On an appreciation of evidence, the Tribunal found that claimant was a gratuitous passenger in a goods vehicle whose risk was not covered by Ext.B1 policy and dismissed the O.P. Claimant has now come up in appeal challenging the said judgment and MACA.No.131/04 3 award of the Tribunal. 5. Heard the counsel for the claimant/appellant and the counsel for the Insurance Company. 6. It was argued by the counsel for the claimant that as the claimant was accompanying the goods, river sand, in the offending mini lorry, she cannot be treated as a gratuitous passenger and that therefore she is entitled to compensation from the respondents. On the other hand, counsel for the Insurance Company supported the judgment of the Tribunal. 7. We have gone through the judgment of the Tribunal as well as the depositions of Pws 1 and 2 before the Tribunal and the documents produced by them. We are of the view that Tribunal is perfectly justified in holding that claimant has failed to prove that she was accompanying the river sand carried in the mini lorry. The version of PW1 and PW2 that there was river sand in the vehicle is difficult to believe as in the FI statement, Ext.A1, nothing was mentioned about the same. PW1 as well as PW2 testified that the river sand belonged to the father of PW2 i.e. the claimant. But he was not examined as a MACA.No.131/04 4 witness to prove the same. 8. For all these reasons, we are inclined to confirm the finding of the Tribunal that the claimant was a gratuitous passenger in a goods vehicle whose risk is not covered by policy Ext.B1 and that therefore she is not entitled to any compensation from the third respondent. That being so, we find no merit in the appeal and the same has to be dismissed. The Appeal is dismissed. No cost. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.131/04 5