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. 1373 of 2005() ----------------------- OPMV.826/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT(S): APPELLANT ----------------------- ROGAN, S/O.DAVIS, RESIDING AT KANNANAIKAL HOUSE, P.O.KURUMALI, VELLUR, THRISSUR DISTRICT. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SRI.SREEKANTH.K.R SRI.JIBU P THOMAS RESPONDENT(S)/RESPONDENT: --------------- 1. T.A.THOMAS, S/O.ANTONY, RESIDING AT THARAKAN HOUSE, ANJUR P.O., MUNDUR, THRISSUR DISTRICT. 2. JAYAPRAKASH, S/O.MANIKANDAN, RESIDING AT PONNARASSERY HOUSE, KECHERY, NEAR MUSLIM PALLI, THRISSUR DISTRICT. ADV. SRI.C.A.CHACKO FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. ------------------------ C.M.APPLN. NO.1925/2005 & M.A.C.A.No. 1373 OF 2005 ------------------------ Dated this the 24th day of March, 2010 JUDGMENT BASHEER,J In C.M.Appln.1925/2005 filed under Section 5 of the Limitation Act, the prayer is to condone the delay of 117 days in filing the appeal. 2. The appeal is directed against the award passed in O.P. (MV) No.826/2000 on the file of the Motor Accident Claims Tribunal, Thrissur. The claim petition filed by the petitioner/appellant was dismissed by the Tribunal holding that the appellant himself was responsible for the accident in as much as his rash and negligent driving resulted in the mishap. The rider and pillion rider of another two wheeler, which was also involved in the accident, had preferred claim petitions alleging that the appellant in this case had caused the accident. The above contention was accepted by the Tribunal and a common MACA NO. 1373/2005 -2- award was passed, rejecting the claim petition filed by the petitioner. 3. Before we deal with the delay petition, it may be relevant to consider the case of the appellant on its merits. According to the appellant, while he was traveling in his motor cycle, the two wheeler, being driven by the claimant in O.P.(MV) 423/2000, came from the opposite direction at a very high speed and in a rash and negligent manner and hit against his vehicle. He sustained fracture on left femur, left maxilla, apart from other injuries on his chest, nose, etc. He was working as a computer hardware engineer aged 19 years at the time of the accident. He claimed Rs.2,50,000/- as compensation. 4. But, the rider and pillion rider of the other vehicle involved in the accident put the entire blame on the appellant and contended that the accident occurred when the appellant suddenly took his vehicle towards the right apparently in order to enter the petrol bunk. 5. The Tribunal after considering the oral testimonies of the claimants in the other case and that of the appellant, who was MACA NO. 1373/2005 -3- examined as PW2, came to the conclusion that the case of the former was more reliable and acceptable particularly keeping in mind the scene mahazar and other police records. The Tribunal referred to the oral and documentary evidence at length and came to the conclusion that going by the details given in the scene mahazar the case of the appellant did not appear to be correct. 6. It was also noticed by the Tribunal that the police had charge sheeted the appellant in the crime for the offence under Sections 279 and 337 of IPC. Though the appellant had made an attempt to implicate the other rider by filing a private complaint, he did not succeed in that attempt since the police referred the above case as mistake of fact after conducting investigation. 7. We have carefully perused the materials available on record. We are totally satisfied with the conclusion arrived at by the Tribunal as regards the question of rashness and negligence. We do not find any reason to interfere with the said finding. Though the learned counsel for the appellant made a persuasive MACA NO. 1373/2005 -4- plea to give a further opportunity to the appellant to adduce evidence, we are not satisfied and that too at this distance of time, that such a plea can be entertained. 8. Coming to the delay petition, it may be noticed that the appellant has not bothered to offer any plausible explanation for the delay. What has been averred in the affidavit in support of the application for condonation of delay is that there was nobody to keep track of the proceedings in the court below after the accident (But, he was examined in the case as PW2). According to the appellant, he came to know about the award only when he made enquiries at the office of the counsel. It is stated by the appellant that even thereafter he could not immediately engage a counsel at Ernakulam because of financial difficulties. There is not even a whisper as to when the appellant got the copy of the award or when he came to know about the passing of the award etc. The affidavit filed in support of the application for condonation of delay is totally bereft of any such details. We are not at all satisfied with the so called explanation offered by the appellant for condonation of delay. For that reason also we are not in a position to hold that the appellant is MACA NO. 1373/2005 -5- entitled to get any relief. Therefore, the delay petition and the appeal are dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE dpk