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 17TH MARCH 2010 / 26TH PHALGUNA 1931 MACA.No. 1338 of 2006() ----------------------- OPMV.720/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANTS/CLAIMANTS: ----------------------------------- 1. REENA, 35 YEARS, D/O. DAMODHARAN, ALATHIYATH VALAPPIL HOUSE, CHAMRAVATTOM P.O., TIRUR. 2. SANTHINI (MINOR) AGED 17 YEARS D/O.LATE SIVARAMAN, ALATHIYATH VALAPPIL HOUSE, CHAMRAVATTOM P.O., TIRUR. 3. SISIRA, AGED 14 YEARS, D/O. LATE SIVARAMAN, ALATHIYATH VALAPPIL HOUSE, CHAMRAVATTAM P.O., TIRUR. (APPELLANTS 2 & 3 REPRESENTED BY MOTHER 1ST APPELLANT). 4. ADDL.CLAIMANTS 4 & 5: NARAYANAN, AGED 84 YEARS, VANIYAMPURAKAL HOUSE, MADAKKIMALA, VAYITHIRI P.O., MATTIL, WAYANAD. 5. KUNCHA, AGED 74 YEARS, D/O. CHAMAN, VANIYAMPURAKAL HOUSE, MADAKKIMALA, VAYITHIRI P.O., MATTIL, WAYANAD. BY ADV. SRI.PROMY KAPRAKKATT SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.P.K.BEENA RESPONDENT(S): RESPONDENTS --------------- 1. PRAVEEN KUMAR, S/O. CHANDRAN, ALUNKATTU HOUSE, PURATHUR P.O., TIRUR (DRIVER). MACA.No.1338/06 2. P.C. BENNY, PARAKKAL HOUSE, KOTTAPADI, GURUVAYUR (OWNER). 3. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, SABKA BUILDING, THAZHEPALAM, TIRUR P.O. ADV. SRI.P.MURALEEDHARAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1338 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of March, 2010 JUDGMENT Basheer, J. Appellants are the claimants before the Motor Accidents Claims Tribunal. The claim petition filed by them under Section 166 of the Motor Vehicles Act was dismissed by the Tribunal holding that the deceased himself was responsible for the accident in as much as he had driven the two wheeler in a rash and negligent manner resulting in the accident. However, the Tribunal awarded a sum of Rs. 50,000/- to the claimants under Section 140 of the Act. 2. The case of the claimants before the Tribunal was that deceased Sivaraman, the husband of appellant No.1 ( father of minor appellants 2 and 3 and son of appellants 4 and 5) was riding on a two wheeler as pillion at about 8.p.m. on August 7, 2001. The two wheeler was being driven by respondent No.1. Because of the rash and negligent driving of the vehicle by respondent No.1, it happened to hit against a coconut tree. Deceased was thrown off the two wheeler and his head hit on the coconut tree. He succumbed to the injuries MACA.No.1338/06 Page numbers instantaneously. Appellants claimed a total sum of Rs. 9lakhs as compensation from the respondents. 3. Respondent No.1 and 2 remained absent and they were set ex parte . Respondent No.3 , the Insurance Company, admitted policy coverage in respect of the vehicle. However, it was contended that it was an “act only” policy. But according to the Insurance Company, the deceased Sivaraman himself was driving the two wheeler and the accident occurred only because of his negligence. It was also pointed out that the police had registered a case against deceased Sivaraman in connection with the accident. 4. Appellant No.1 got herself examined as PW1 and two witnesses were also examined on her side as PWS 2 and 3. Exts.A1 to A8 were marked on the side of the claimants. Respondent No.1 was examined at the instance of the Insurance Company as RW1 and Exts.B1 and B2 were marked on its side. 5. The Tribunal after evaluating the oral and documentary evidence on record, held that the claimants had failed to prove that the accident had occurred because of the rash and negligent driving of MACA.No.1338/06 Page numbers respondent No.1 and accordingly the claim under Section 166 was rejected. 6. In arriving at the above conclusion, the Tribunal primarily relied on the evidence of RW1. It may at once be noticed that PW3 had deposed before the Tribunal that he had seen respondent No.1 driving the two wheeler with deceased riding on it as pillion. He had also stated that on seeing him, the vehicle was slowed down since he knew both of them. After exchanging pleasantries, the bike was taken forward by respondent No.1. It is true that PW2, the brother of deceased Sivaraman did not see the incident. Similarly, PW1, the wife of the deceased had also not seen the incident. But the evidence of PW3 was not effectively rebutted or challenged. 7. As against this evidence, the Insurance Company got respondent No.1 examined in the case, though this respondent had not either chosen to appear after receipt of notice or file his counter statement in the case. In his deposition RW1 stated that initially he had been driving the vehicle,but after some time the deceased took over. According to RW1, the accident occurred when deceased was driving MACA.No.1338/06 Page numbers the vehicle. 8. In this context, it may be pertinent to notice that RW1 admitted that PW3 had seen him and the deceased while they were on their way to their destination. In other words, the fact that PW2 had seen RW1 and the deceased together on the two wheeler shortly before the accident is beyond dispute. Significantly,RW1 himself admitted that he had been driving the two wheeler at the time when PW3 saw him. However,the Tribunal discarded the evidence of PW3 and chose to believe the version given by respondent No.1 totally over looking the fact that this respondent, for his own reasons had chosen to remain absent before the Tribunal. It is true that the police had registered a crime against deceased Sivaraman. But it must be remembered that the informant was none other than respondent No.1 himself. The reasons could have been obvious. 9. There is yet another aspect of the matter. It was admitted by RW1 that he had sustained some injuries in the accident and that he was in the hospital for about 15 days. But strangely, respondent No.1 did not choose to file any claim petition before the Tribunal seeking MACA.No.1338/06 Page numbers compensation . If, in fact, the deceased was driving the scooter and respondent No.1 had sustained injuries in the accident, nothing prevented respondent No.1 from claiming compensation against the owner of the two wheeler ( respondent No.2), especially, if the deceased himself was responsible for the accident. 10. It is pointed out by learned counsel for the Insurance Company that the case against respondent No.1 was registered by the Police at a later stage on the basis of a private complaint filed by PW2, the brother of deceased Sivaraman. It may be so. But still we do not find any reason to hold that PW2 can be blamed for filing such a compliant against respondent No.1 especially since according to PW2 , his deceased brother was implicated in the crime by respondent No.1 to save his own skin. 11. Having carefully perused the entire materials available on record, we are unable to agree with the conclusions made by the Tribunal as regards the cause of accident. In our view, there is no reason to disbelieve PW3 and to rely entirely on the interested version of respondent No.1, who was examined at the instance of the Insurance MACA.No.1338/06 Page numbers Company. It is held that accident had occurred because of the rash and negligent driving of respondent No.1. In that view of the matter, we have no hesitation to set aside the above finding entered by the Tribunal. We do so. 12. The case is remitted to the Tribunal for fresh consideration on the basis of the above finding. However, we do not propose to go into the question of entitlement of the appellants for compensation especially in view of the contention raised by the Insurance Company that it was an “act only policy” and therefore the pillion rider could not be covered under the said policy. Apart from that, the question of fixing the quantum of compensation that the appellants may be entitled to get, in our view, has to be left to the Tribunal, to be decided after considering the entire materials on record. The Tribunal shall pass a fresh award keeping in view the finding entered by us as regards the cause of accident. 13. The parties shall appear before the Tribunal on April 20, 2010. The Tribunal shall make an earnest endeavour to dispose of the case as expeditiously as possible,at any rate within three months from MACA.No.1338/06 Page numbers the date of receipt of a copy of this judgment. The Appeal is allowed to the above extent. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.1338/06 Page numbers