IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 MACA.No. 2164 of 2008() ----------------------- AGAINST THE ORDER DATED 02/05/2008 IN OP(MV)NO. 2801/01 & OPMV.3385/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): PETITIONER ------------------------ XAVIOUR @ XAVI, S/O. VARGHESE, PARACKAL KUTTIKATTU HOUSE, P.O. VELUR, THRISSUR. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK RESPONDENT(S): RESPONDENTS -------------------------- 1. BABU.K.K, S/O. KOTHA, JUNNATH HOUSE, P.O. VELUR, THRISSUR DISTRICT. 2. SURESH, S/O. KOTHA, KUNNATH PARACKAL HOUSE, P.O. VELUR, THRISSUR DISTRICT. 3. THE NATIONAL INSURANCE CO. LTD., BR. GURUVAYUR, THRISSUR DISTRICT. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A.No.2164 of 2008 -------------------------------------- Dated this the 10th day of November, 2008. JUDGMENT Thomas P.Joseph. Alleging that he met with a motor vehicle accident on 13.3.2001 and suffered injuries therefrom, appellant preferred an application before the Motor Accidents Claims Tribunal, Thrissur claiming Rs.11,67,500/- as compensation. Case is that while the appellant was travelling in a good autorickshaw driven by the second respondent in a rash and negligent manner, it capsized on the relevant day, time and place resulting in injuries to him. Respondents 1 and 2 did not contest the application. Third respondent, the insurer of the offending vehicle contended that appellant was not a passenger in the said vehicle at the relevant time. Learned Tribunal recorded evidence, found that appellant was not able to prove that he travelled in the offending vehicle and suffered injuries and consequently dismissed the application. Hence this appeal. 2. We heard counsel for the appellant. It is contended by learned counsel that the Tribunal has not appreciated the evidence property in coming to the conclusion that the appellant was not travelling in the offending vehicle at the relevant time. MACA No.2164/2008 2 3. Along with O.P.(MV) No.3385 of 2001 filed by the appellant, another application for compensation (OP(MV) No.2801 of 2001) filed by one Soman who claimed that he was travelling in the offending vehicle at the relevant time and sustained injuries was also enquired into. Soman was examined as CW1. He proved Ext.C1, copy of the first information statement given by him to the police based on which case was registered against the second respondent for rash and negligent driving. That statement was to the effect that Soman (CW1) was travelling in the goods autorickshaw sharing the driver's seat along with the second respondent and that immediately after the accident the appellant came there, fetched an autorickshaw and sent CW1 to the hospital. There was no mention in Ext.C1 about the appellant travelling in the said vehicle or sustaining injuries in the accident. CW`1 claimed that he was travelling in the goods autorickshaw sharing the seat of the driver. According to the appellant, he was sharing the seat of the driver. He examined PW2, a witness to prove the accident in the way he claimed. It is true that PW2 supported the appellant but, it came out that PW2 was not even a witness cited by the police in the final report submitted against the second respondent. According to PW2, he was walking along the road from north to south while the goods autorickshaw came from west to east. Learned Tribunal observed that going by the evidence of PW2 it is quite unlikely that he could have seen the appellant travelling in the goods autorickshaw. MACA No.2164/2008 3 4. Appellant was examined as PW1. He claimed that he went to the hospital for treatment on 16.3.2001 though he claimed to have sustained injuries in the accident on 13.3.2001. According to the appellant (PW1), he had been taking rest at his house till 16.3.2001 and, on that day he went to the hospital. Learned Tribunal found from Ext.A7 that appellant had been to the hospital on13.3.2001, 15.3.2001 and 16.3.2001 thereby falsifying the contention of the appellant that he took rest at home till 16.3.2001 and went to the hospital only on 16.3.2001. It is the further case of the appellant that while sending CW1 to the hospital in the autorickshaw on 13.3.2001, himself had not go to the hospital in that autorickshaw. This version also casts much doubt on the version of the appellant since, if he had sustained injuries in the accident on 13.3.2001 he would have also gone to the hospital along with CW1 then itself. Appellant as PW1 admitted that his name was included in the final report submitted by the police only as per a direction issued by the Judicial First Class Magistrate, Kunnamkulam. Learned Tribunal has considered all the relevant aspects to hold that the version of the appellant that he was travelling in the offending vehicle and sustained injuries is not true. The finding of fact entered by the Tribunal is based on proper appreciation of the evidence. We find no reason to interfere with that finding. Appeal therefore, is dismissed. MACA No.2164/2008 4 J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. cks