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 8TH FEBRUARY 2011 / 19TH MAGHA 1932 MACA.No. 575 of 2006() ---------------------- OPMV.1278/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TRIVANDRUM .................... APPELLANT/PETITIONER: ----------------------------------- RAJESH, AGED 26 YEARS, S/O. AYYAPPAN ACHARI, MANJU BHAVAN, T.C.8/660, THIRUMALA P.O., THIHRUVANANTHAPURAM. BY ADV. SRI.THIRUMALA P.K.MANI RESPONDENTS/RESPONDENTS --------------- 1. MR. JAYAKUMAR S., T.C.24/1680, JAYA BHAVAN, KANNETTUMKUKKU, THYCAUD, THIRUVANANTHAPURAM. (DRIVER OF THE CAR LICENCE NO.DL.2967/79 BADGE NO.6322/82 VALID FROM 10/02/1998 TO 2001) 2. THE MANAGER, BRANCH OFFICE, BRANCH NO.1, NATIONAL INSURANCE CO.LTD., SOUNDARYA BUILDING, M.G. ROAD, THIRUVANANTHAPURAM (INSURER OF THE VEHICLE). 3. RAJESWARI, AGED 56 YEARS, W/O. KESAVAN NAIR, T.C.17/1038, PRIYADARSINI, MELECHERUKARA ROAD, POOJAPPURA, THIRUVANANTHAPURAM. 4. SURESH, S/O. KESAVAN NAIR, RESIDING AT DO. DO. 5. SUDHI, S/O. KESAVAN NAIR, RESIDING AT DO. DO. 6. SUJA, D/O. KESAVAN NAIR, RESIDING AT DO. DO. ADV. SRI.E.M.JOSEPH FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.575 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of February, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV)No.1278/2007 on the file of Motor Accidents Claims Tribunal, Thiruvananthapuram. In this appeal, he challenges the judgment and award of the Tribunal dated April 8, 2005 dismissing the claim petition filed by the claimant for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. On April 19, 1999 at about 6.30 p.m. while the claimant was riding the motor cycle bearing Reg.No.KL 01 K 58 and reached in front of State Bank of Travancore, Poojappura, the car bearing Reg.No.KL 01 F 02 which was moving in front of the motor cycle applied sudden brake. In order to avoid dashing against the car, the claimant also applied brake and as a result of which the motor cycle hit against the rear of the car. Just before he was about to take control of the bike, he was knocked down by another car bearing Reg.No. KL 01 MACA.No.575/2006 2 U 8727 driven by the second respondent. Alleging negligence against the second respondent, the claimant filed the O.P. before the Tribunal under Section 166 of Motor Vehicles Act claiming a compensation of Rs. 2,50,000/-. 3. Respondents 1 to 3 in the O.P. are the owner, driver and insurer of the car bearing Reg.No.KL 01 U 8727. First respondent in the O.P. died during the pendency of the O.P. and his legal heirs were impleaded as additional respondents 4 to 7 in the O.P. The third respondent, the insurer of the offending car filed a written statement admitting the policy, but attributed negligence to the claimant. 4. Exts.A1 to A10 were marked on the side of the claimant before the Tribunal. No evidence was adduced by the contesting third respondent. The Tribunal on an appreciation of evidence found that the claimant has failed to prove that the accident occurred due to the negligence of the second respondent, the driver of the car bearing Reg.No.KL 01 U 8727 and dismissed the O.P. The claimant has now come up in appeal challenging the said finding of the Tribunal. 5. Heard the counsel for the appellant/claimant and the MACA.No.575/2006 3 counsel for the Insurance Company. 6. The following points arise for consideration : 1. Whether the finding of the Tribunal that claimant has failed to prove the negligence on the part of second respondent and consequently dismissing the O.P. can be sustained ? 2. Whether the claimant is entitled to any compensation from respondents ? Point Nos. 1 and 2 7. The case of the claimant was that the car bearing Reg.No.KL 01/F 02 which was moving in front suddenly applied the brake, that his motor cycle hit the back side of the car and that when he swerved the motor cycle to the right the car bearing Reg.No.KL 01 U 8727 which was coming from the opposite direction dashed against his motor cycle. Second respondent is the driver of the said car. For several reasons we are inclined to confirm the finding of the Tribunal that claimant has failed to prove any negligence on the part of the second respondent. Claimant has not come forward to swear that there was any negligence on the part of second respondent. That apart, police has after investigation referred the case as seen from Ext.A2 copy of final report. No independent witness was examined on the MACA.No.575/2006 4 side of the claimant to show that there was no negligence on his part or prove the alleged negligence on the part of second respondent. For all these reasons, we confirm the finding of the Tribunal and hold that claimant has failed to prove that the accident occurred due to the negligence of second respondent. Consequently he is not entitled to claim any compensation from respondents. Therefore, we find no merit in this appeal and the same is hereby dismissed. No cost. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.575/2006 5