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 24TH MARCH 2010 / 3RD CHAITHRA 1932 MACA.No. 162 of 2007() ------------------------------- OPMV.1308/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/PETITIONER IN.O.P ( M.V) ------------------------------------------------------- VARKEY.K.V., S/O.VARKEY, AGED 50 YEARS, KORATTUKUDY HOUSE, KODANADU P.O., KURICHILAKODE. BY ADV. SRI.DINESH MATHEW J.MURIKAN RESPONDENTS: RESPONDENTS IN.O.P(M.V) -------------------------------------------------------------- 1.NARAYANAN, S/O.PADMANABHAN, MULLASSERY HOUSE, KODANADU P.O. 2.GOPI, S/O.PADMANABHAN, MULLASSERY HOUSE, ALLAPRA P.O. 3.NATIONAL INSURANCE CO.LTD., KOLENCHERRY BRANCH, POST BOX NO.6, MEDICAL MISSION JUNCTION, KOLENCHERY. ADV. SRI. LAL GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK A.K. BASHEER & P.Q. BARKATH ALI, JJ. -------------------------------------------------------- M.A.C.A NO. 162 OF 2007 ----------------------------------------- DATED THIS THE 24TH DAY OF MARCH 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in OP(MV)No. 1308/2001 on the file of Motor Accidents Claims Tribunal, Perumbavoor challenges the judgment and award of the Tribunal dated 8.8.2006 dismissing the O.P(MV). 2. The facts leading to this appeal in brief are these: The claimant is a deaf and dumb person. On 1.11.2000 he was riding a by-cycle through Vallam– Alattuchira road and when he reached near Kurichilakode Police Station at about 2.30 p.m., he was knocked down by a motor cycle bearing registration No. KL-7 X-1588 which was ridden by the 1st respondent. The claimant sustained serious injuries. The accident occurred due to rash and negligent ridding of offending vehicle by the 1st respondent, according to the claimant. The 1st respondent as the rider, the 2nd respondent as the owner and the 3rd respondent as M.A.C.A NO. 162 OF 2007 2 the insurer of the offending vehicle are jointly and severally liable to pay compensation to the claimant. The 1st respondent, the rider of the offending motor cycle remained absent and was set ex-parte by the Tribunal. The 2nd respondent, the owner of the offending vehicle filed a written statement admitting the accident but contending that the accident occurred due to the negligence on the part of the claimant. The 3rd respondent, the insurer of the offending motor cycle filed written statement admitting the policy. 3. Exts A1 to A7 were marked on the side of the claimant before the Tribunal. The contesting respondents 2 and 3 did not adduce evidence before the Tribunal. On an appreciation of evidence, the Tribunal found that the accident occurred due to negligence on the part of the claimant and that therefore , he is not entitled to any compensation from respondents and dismissed the OP(MV). The appellant/claimant has now come up in appeal M.A.C.A NO. 162 OF 2007 3 challenging the said finding of the Tribunal. 4. Heard the counsel for appellant/ claimant and the counsel for Insurance Company. 5. The following points arises for consideration; i) whether the finding of the Tribunal that the accident occurred due to negligence on the part of the claimant can be sustained ? ii)Whether the claimant is entitled to any compensation ? 6. Ext.A3, the copy of the scene mahazar shows that the claimant was on the wrong side. Ext.A2, the certified copy of the final report filed by the police shows that police has referred the case. Therefore, prima facie, it shows that there is negligence on the part of the claimant. Claimant has not chosen to come forward to swear that there was no negligence on his part. Under these circumstances the Tribunal is perfectly justified in coming to the conclusion that the accident occurred due to the negligence on the part M.A.C.A NO. 162 OF 2007 4 of the claimant and that there was no negligence on the part of the rider of the offending motor cycle, the 1st respondent. Therefore, the claimant is not entitled to any compensation from the respondents. That being so, the appeal has to be dismissed. In the result, the appeal is dismissed. Parties shall bear their own cost. A.K. BASHEER (JUDGE) P.Q. BARKATH ALI (JUDGE) pkk