IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 MACA.No. 2134 of 2008() ----------------------- OPMV.1500/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): PETITIONERS IN OPMV: ---------------------------------- 1. AMMINI, AGED 51 YEARS, W/O.NARAYANAN, CHERUPARAMBIL HOUSE, KURUMASSERY P.O., KURUMASSERY, ALUVA TALUK. 2. NEENA AGED 28 YEARS, D/O.NARAYANAN, CHERUPARAMBIL HOUSE, KURUMASSERY P.O., KURUMASSERY, ALUVA TALUK. BY ADV. SRI.JOHNSON ABRAHAM RESPONDENT(S): RESPONDENTS IN OPMV: ----------------------------------- 1. ELSY ANTONY, PARIYADAN HOUSE, THURAVOOR P.O., ANGAMALY. 2. NISHAD, S/O.NARAYANAN, CHERUPARAMBIL HOUSE, KURUMASSERY P.O., KURUMASSERY, ALUVA TALUK. 3. THE ORIENTAL INSURANCE CO. LTD., KALLOOKKARAN SHOPPING COMPLEX, ANGAMALY 683 572. 4. THE MANAGING DIRECTOR, K.S.R.T.C., TRIVANDRUM. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & P.N. RAVINDRAN, JJ. -------------------------------------------- M.A.C.A. No. 2134 OF 2008 -------------------------------------------- Dated this the 5th day of January, 2009 JUDGMENT Ramachandran Nair,J. Heard counsel appearing for the appellants and standing counsel appearing for the third respondent. On going through the award, we find that the case of the appellants-claimants that second respondent was driving the autorickshaw at the time of the accident leading to the death of husband of the first appellant is not correct. Even though counsel for the appellants contended that FIR was taken by the police against the second respondent, the case appears to be a manipulated one because from the nature of damage caused to the autorickshaw it is clear that driver cannot escape unhurt. Besides this, there is no explanation as to why FIR was taken only one day after the incident. Admittedly accident occurred at 6 A.M. on 13.8.2002 and the FIR was registered only on the next day. There is nothing to indicate as to who took the victim to the hospital after he sustained fatal injury in the 2 accident. Appellants cannot sustain claim petition merely basing on police case which does not appear to be genuine or real because MACT clearly found that going by the damage caused to the autorickshaw, driver cannot escape without serious injuries. Admittedly, second respondent, who according to the appellants was driving the autorickshaw, did not sustain any serious injury which proved beyond doubt that victim was driving the autorickshaw. However, since autorickshaw involved was covered by insurance policy, there is no justification to order repayment of claim allowed by the MACT. We therefore allow the appeal in part by sustaining the award under Section 148A as final award in the case and vacating the order of the Tribunal authorising recovery of the amount paid to the appellants. (C.N.RAMACHANDRAN NAIR) Judge. (P.N. RAVINDRAN) Judge. kk 3