IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 MFA.No. 348 of 2003() ------------------------------ OPMV.23/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT: PETITIONERS: ----------------------- 1. SUSAMMA MATHEW, MALAYIL, ELACKAD P.O., KURAVILANGADU. 2. JANSON MATHEW (MINOR), MALAYIL, ELACKAD P.O., REPRESENTED BY HIS MOTHER SUSAMMA MATHEW, MALAYIL, ELACKAD P.O. AS GUARDIAN AND NEXT FRIEND. 3. T.J.JOSEPH, MALAYIL, ELACKAD P.O., KURAVILANGADU. 4. JAJU MATHEW (MINOR), MALAYIL, ELACKAD P.O., KURAVILANGADU, REPRESENTED BY HIS MOTHER SUSAMMA MATHEW, MALAYIL, ELACKAD P.O. AS GUARDIAN AND NEXT FRIEND. 5. JOSEPH J.MALAYIL, ELACKAD P.O., KOTTAYAM. 6. ANNAMMA THOMAS, THARAPPELPUTHENPURAYIL, UZHAVOOR P.O., KOTTAYAM. 7. CELINAMMA JOSE, KADAMBANADU, KUDAKKACHIRA P.O., KOTTAYAM. BY ADV. SRI.MATHEW ABRAHAM M.F.A. NO.348/2003 RESPONDENTS: RESPONDENTS: ------------------------- 1. RAJA SEKHARAN NAIR, S/O.SIVARAMA PILLAI, SINDHU BHAVAN, KANAKKARY P.O., ETTUMANOOR. 2. PUNNOOSE @ KOCHI BABY, PERUMPALLIPARAMBIL, KIZHAKKUMBHAGOM KARA, KONICKAL BHAGOM, ETTUMANOOR. 3. THE NEW INDIA INSURANCE CO. LTD., ETTUMANOOR. ADV. SRI.N.S.MOHAMMED USMAN FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/08/2008, ALONG WITH MFA NO. 465 OF 2003 MFA NO. 362 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss J.B. Koshy & K.P.Balachandran, JJ. -------------------------------------- M.F.A. Nos.348, 362 & 465 of 2003 --------------------------------------- Dated this the 5th day of August, 2008 Judgment Koshy,J. The legal representative of an autorickshaw driver applied for compensation contending that the mini lorry insured by the third respondent insurance company hit the autorickshaw and the accident happened due to the negligence of the second respondent driver of the mini lorry and claimed compensation of Rupees Four lakhs. The tribunal awarded a compensation of Rs.2,49,000/-. They also filed a claim for damages caused to the autorickshaw. The tribunal awarded Rs.12,300/- as damages to the autorickshaw. The insurance company filed two appeals questioning the awards contending that the vehicle involved was not the mini lorry, but, another jeep and, therefore, there is no liability for the insurance company to pay the compensation. The legal representative of the deceased autorickshaw driver also filed appeal contending that the amount awarded was inadequate. All the three appeals were heard together. M.F.A. Nos.348, 362 & 465/2003 2 2. Main contention raised by the appellant insurance company is that immediately after the accident, a first information statement was filed by one Jose, who was a passenger in the autorickshaw and who was examined as PW3 wherein it is stated that the autorickshaw was hit by a jeep from behind. PW3 gave evidence before the tribunal that he did not give such a first information statement before the police. The first information statement was also not put to PW3 when he was examined before the tribunal. He also deposed before the tribunal that while they were travelling, the mini lorry came and hit the autorickshaw and as a result of the hit, himself and the driver were thrown out and they sustained serious injuries and, consequently, the driver of the autorickshaw died. It is the case of PW3 that after the accident occurred, the lorry further proceeded and hit a jeep also. Two other eye witnesses were also examined. They also deposed that the accident occurred due to the negligence of the lorry driver. The tribunal relied on the evidence of the eye witnesses examined before the tribunal. The tribunal also noticed that after investigation, despite the alleged statement that the mini lorry hit the jeep, lorry driver was only charge-sheeted. The details of the jeep is also mentioned in the charge sheet as after the accident, M.F.A. Nos.348, 362 & 465/2003 3 the lorry hit the jeep also. Mahazar of the said jeep was also prepared. But, PW3, though stated before the Magistrate’s court that he did not remember the number of the lorry and he cannot say whether the negligence of the lorry driver has caused the accident. A definite question was put in cross-examination of PW3 that the mini lorry hit the autorickshaw due to the negligence of the autorickshaw driver as the autorickshaw was coming in the wrong side. It also stated that the jeep also hit the mini lorry. So, the cross-examination of PW3 before the Magistrate’s court shows the involvement of PW3 in the case. From the evidence of the eye witnesses before the tribunal, the tribunal found that the accident occurred due to the negligence of the driver of the mini lorry insured by the appellant insurance company. Since the tribunal has relied on the evidence of eye witnesses, merely because the driver was acquitted by the Magistrate’s court, we see no reason to interfere with the finding. The tribunal is bound by the evidence adduced before it. No other witnesses were brought by the appellant or by any other respondents to show that the accident occurred due to the hit of the jeep on the autorickshaw as contended by it. So, the evidence adduced justify the finding of the tribunal regarding the negligence of the lorry driver. It is not disputed that the lorry was M.F.A. Nos.348, 362 & 465/2003 4 covered by the insurance policy. Therefore, the appeals filed by the insurance company are dismissed. With regard to the appeal filed by the claimant, legal representative of the autorickshaw driver, monthly contribution to the family was calculated as Rs.1,500/- (after deducting personal expenses). 17 was taken as the multiplier taking guidance from the second schedule as he was aged 31 and compensation was calculated. Total amount of compensation granted was Rs.2,49,000/- with 9% interest from the date of application. Considering the total amount of compensation granted, we are of opinion that no interference is needed and, therefore, the appeal filed by the claimants are also dismissed. J.B.Koshy Judge K.P.Balachandran Judge vaa M.F.A. Nos.348, 362 & 465/2003 5 J.B. KOSHY AND K.P.BALACHANDRAN,JJ. ------------------------------------- M.F.A. Nos.348,362 & 465/2003 ------------------------------------- Judgment Dated:5th August, 2008