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 14TH JULY 2010 / 23RD ASHADHA 1932 MACA.No. 1184 of 2005() ----------------------- OPMV.1647/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPELLANT/PETITIONER ----------------------- K.RAVEENDRAN, AGED 60 YEARS, S/O.KESAVAN NAIR, `KARTHIKA', H.NO. 49/1041, CHUTTUPADUKARA, EDAPPALLY NORTH, COCHIN-24. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENT(S): RESPONDENTS --------------- 1. C.SUGUNAMMA, 35/717, THAYYIL HOUSE, NORTH JANATHA ROAD, PALARIVATTOM P.O., COCHIN-25. 2. VIJAYA KUMAR, S/O.KOCHUNNI KARTHA, THATTATHU HOUSE (RATNA VILASAM), CHUTTUPADUKARA, EDAPPALLY, COCHIN-24. 3. THE ORIENTAL INSURANCE COMPANY LTD., REPRESENTED BY REGIONAL MANAGER, REGIONAL OFFICE, MUTHOOT TOWERS, M.G.ROAD, COCHIN-35. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1184 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of July, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.1647/1996 on the file of Motor Accidents Claims Tribunal, Ernakulam challenges the judgment and award of the Tribunal dated June 22, 2002 dismissing the O.P. 2. The facts leading to this appeal in brief are these : The claimant was aged 50 at the time of the accident and was employed as Assistant Sub Inspector of Police earning Rs.4,675/- per month. On July 31, 1995 at about 8.15 a.m., while he was pillion riding on the motor cycle bearing Reg.No.KL-7G-6807 along Banerji Road, Ernakulam, the second respondent who was riding the motor cycle suddenly swerved the motor cycle without proper care as a result of which the right leg of the claimant was trapped inside the back wheel of the motor cycle causing severe injuries to him. The accident occurred due to the negligence of the second respondent. First respondent as the owner, second respondent as the rider and third MACA.No.1184/2005 2 respondent as the insurer of the offending motor cycle are jointly and severally liable to pay compensation to the claimant. 3. Respondents 1 and 2, the owner and the rider of the offending motor cycle remained absent and were set ex parte by the Tribunal. The third respondent the insurer of the offending motor cycle filed a written statement denying the liability. 4. Claimant was examined as PW1 and Exts.A1 to A9 were marked on his side. On the side of the contesting third respondent, Exts.B1 and B2 were marked. The Tribunal on an appreciation of evidence found that the claimant has failed to prove any negligence on the part of the second respondent and that therefore claimant is not entitled to any compensation from the respondents 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 claimant and the counsel for the Insurance Company. 6. The following point arise for consideration : Whether the finding of the Tribunal MACA.No.1184/2005 3 that the claimant himself was negligent in causing the accident and that there is no negligence on the part of the second respondent and consequently dismissing the O.P. can be sustained ? 7. We have gone through the evidence of PW1 and Exts.A1 to A7 and Exts.B1 and B2. It is pertinent to note that the police did not charge any case against the second respondent. Ext.B1 is the photocopy of the final report relating to the criminal case. Ext.A1 is the photocopy of the FIR. It is seen from these documents that the right leg of the claimant accidentally went under the rear wheel of the motor cycle and sustained the injury. In an attempt to prove the incident, claimant examined PW2, an alleged eye witness to the incident. The Tribunal has chosen to disbelieve his evidence. On going through his evidence, we find no reason to come to a different conclusion. For all these reasons, we find no reason to interfere with the finding of the Tribunal that there was no negligence on the part of the second respondent and that the accident was caused due to the MACA.No.1184/2005 4 negligence of the claimant himself. It follows that he is not entitled to any compensation. Therefore, we find no merit in this appeal and the same has to be dismissed. In the result, the appeal is dismissed. No costs. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1184/2005 5