IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 MACA.No. 1671 of 2004() ----------------------- OPMV.233/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/PETITIONER: -------------------------------------- BINU, S/O.ABRAHAM, VANIYAPURAYIL HOUSE, MANAKKADU P.O. THODUPUZHA. BY ADV. SMT.LEELAMMA GEORGE RESPONDENTS: RESPONDENTS: -------------------------------------------------- 1. MRS.SUMATHI P.G., XV/76, PERUMITTATH, ASAN LANE, ALUVA. 2. GIRISH, S/O.RAVINDRAN, KULIRANKAL HOUSE, MANAKKADU, THODUPUZHA. 3. JOSEPH ALEX, CHEMMAZHAM, PANNOOR P.O. KARIMANOOR, THODUPUZHA. 4. LOVWIN SEBASTIAN, PAINAL, MRALA P.O. KARIMKUNNAM VILLAGE, THODUPUZHA. 5. ORIENTAL INSURANCE CO.LTD., ALUVA BRANCH AND THODUPUZHA BRANCH, REP. BY ITS DIVISIONAL MANAGER, ORIGINAL INSURANCE CO. DIVISIONAL OFFICE, MUVATTUPPUZHA. BY ADV. SRI.RAJESH VIJAYAN - R1 SRI.A.R.GEORGE - R5 SRI.P.C.CHACKO(PARATHANAM) - R4 SMT.ASHA CHACKO - R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 1671 OF 2004 --------------------- Dated this the 9th day of June, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, Thodupuzha, in OP(MV) No.233/02. The defeated claimant in OP(MV) 233/02 is the appellant before me. His specific case is that he was travelling as a pillion rider in a motor vehicle bearing registration No.KL 7S 6747 driven by the 2nd respondent in the claim petition namely Girish. On account of the negligence of Girish and the 4th respondent in the claim petition namely Lovwin Sebastian, the accident took place. 3rd respondent in the claim petition is the owner of the bike bearing registration No.KL6 8072. The 5th respondent in the claim petition is the insurer of both vehicles. The appellant has claimed compensation only from the 1st respondent, the owner of the motor vehicle bearing registration No.KL 7S 6747 and its insurer the 5th respondent. There was another case filed by the rider of the other bike as OP(MV) 101/02 without the junction of the present appellant as a party. The award has been passed and no appeal is filed against the same. Since the present appellant is not a party to the said proceeding, one cannot attribute any negligence on him for not preferring the appeal. The Tribunal mainly relied upon the first information statement which was given by the petitioner in OP(MV) No.101/02 wherein there is an averment that the present MACA No.1671/04 2 appellant was the rider of the bike. Police after due investigation had arrived at a conclusion that it was the 2nd respondent in OP(MV) No.233/02 who had driven the vehicle and filed a charge sheet against him. The said person appeared before the criminal court, pleaded guilty and was sentenced to pay fine. The Tribunal also arrived at a decision that the non junction of the present petitioner in OP(MV) No.101/02 is not fatal to the present. So sufficient confusion had already been created in this matter. How to resolve it is the question before the court now. 2. So far as negligence aspect is concerned, when the law is set in motion by giving first information statement, the law enforcing agency is conducting an enquiry to find out the real fact and such an enquiry resulted in filing a charge sheet against the 2nd respondent in OP(MV) No.232/02. One cannot fall back and hold that the first information statement is a magna carte and that has to be relied on. However, the first information statement was only given by the other rider and it has nothing to do with the present claimant. When such is the situation, over riding the judgment of the criminal court and the charge sheet filed by the police it is not proper to do otherwise. Unless there is acceptable and impeachable evidence the Tribunal should not have jumped into a conclusion that it was the claimant in OP(MV) No.233/02 who was riding the vehicle. Therefore, that matter requires reconsideration. If necessary, parties are permitted to adduce evidence in support of their respective contentions and the Tribunal is MACA No.1671/04 3 directed to arrive at a decision untrammelled by any of the observations made in this judgment. 3. Since the claimant is a pillion rider and as position of law as on today is that an Act only policy does not cover a pillion rider, the Tribunal has to necessarily consider whether the pillion rider is liable to indemnified by the Insurance Company and the said contention also can be taken and considered by the Tribunal. If there is sufficient prayer against the other rider of the bike that can also be considered by the Tribunal and appropriate orders thereon shall be passed. In case of a situation where the court finds that the accident had taken place on account of the negligence of the claimant in OP(MV) 101/02 and 2nd respondent in OP (MV) No.233/02 then necessarily, the claimant in OP(MV) No.101/02 has contributed to the accident which will reduce his entitlement to the compensation. In such a contingency the Tribunal is at liberty to make an order directing him to redeposit the amount before the court and disburse it to the appropriate party who is entitled to it. So the award in OP(MV) No.233/02 is set aside and the matter is remitted back to the Tribunal for consideration of the following terms: (1) The court shall find who actually had driven the bike on the date of accident. (2) Whether the accident had taken place on account of the negligence of the 2nd respondent in in OP(MV) No.233/02 or the 4th MACA No.1671/04 4 respondent in the claim petition or on account of the negligence of the appellant. (3) If it is proved that it was the appellant who was driving the vehicle, the Insurance Company is directed to consider the plea of non- coverage of the pillion rider in the vehicle. (4) In case of a decision of contributory negligence appropriate direction be given to the 4th respondent to reimburse the amount which he had drawn in excess of his entitlement. Parties are directed to appear before the Tribunal on 23.7.08. M.N.KRISHNAN, JUDGE vps MACA No.1671/04 5