MACA No. 271 of 2004 · Kerala High Court

BY ADV. SMT.RAJI T.BHASKAR RESPONDENT(S): CLAIMANTS AND RESPONDENTS 1 AND 2 ------------------------------------------------

JOHNY S/O. DANNISON, MUTHUPARAVILA, KIZHAKKARUKIL VEEDU, MUKKOLA, VENGANOOR P.O., VISHINJAM, NEYYATTINKARA, THIRUVANANTHAPURAM

V.KABEER, T.C. 42/926, PUTHUKOZHI, MANAKKADU P.O., THIRUVANANTHAPURAM.

L.RAJAN, KUZHIANVILA PUTHENVEEDU, KAKANMOOLA, KALLIYOOR P.O., THIRUVANANTHAPURAM. ADV. SRI.G.SUDHEER FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.271 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of February, 2010 Basheer, J. JUDGMENT This appeal is directed against the award passed by the Motor Accidents Claims Tribunal. The appellant is the Insurance company which had admittedly issued a valid policy coverage in respect of the vehicle which was involved in the accident.

2. The case of respondent No.1/claimant before the Motor Accidents Claims Tribunal was that while he was riding his motor cycle bearing Reg. No.KL-8-A-7475 , the offending motor cycle bearing Reg. No.KL-01-Q 7705 owned and ridden by respondent No.2 herein had dashed against his motor cycle. Resultantly he sustained fracture femur(R) and fracture of both bones ( R) forearm for which he was treated as an inpatient in the Medical College Hospital, Thiruvananthapuram from August 26, 2000 till September 2000. The treatment consisted of open reduction, 'K' nailing rotation plate femur and in nailing & DCP ( R) forearm etc.. At the time of accident, he was M.A.C.A.No.271/04 Page numbers aged 29 and was working as a Mason in Saudi Arabia earning a monthly income of Rs. 15,000/-. He claimed a total sum of Rs. 4 lakhs as compensation.

3. The appellant/Insurance company admitted policy in respect of the offending vehicle, but contended that respondent No.1 was equally responsible for the accident and that he did not have a valid licence to drive two wheelers.

The Tribunal after considering the documentary evidence adduced by the claimant (Exts.A1 to A4 series) held that respondent No.2 was responsible for the accident. The quantum of compensation was assessed at 1,02,840/- and the appellant was directed to indemnify the owner/driver of the motor cycle. The above award is under challenge in this appeal.

It is vehemently contended by Smt. Raji T.Bhaskar, learned counsel for the appellant that the Tribunal committed serious illegality in holding respondent No.2 liable for the accident. It is contended by the learned counsel that the specific pleading made by the appellant that the claimant did not have a valid driving licence at the time of the M.A.C.A.No.271/04 Page numbers accident was not considered by the Tribunal at all. She points out that in the First Information Report and the scene mahazar prepared by the police, composite negligence on the part of the claimant was indicated. It is further contended by the learned counsel that the very fact that the claimant did not hold a valid licence will go to show that he was also equally responsible for the accident.

We are afraid the above contention is wholly untenable. It may at once be noticed that the appellant did not adduce any evidence before the Tribunal, either oral or documentary . It may be true that in the counter statement filed before the Tribunal, the appellant might have raised a contention that the claimant did not possess a valid licence. The specific case of the claimant was that the offending vehicle had hit against him while he was riding his two wheeler. No contra evidence was adduced either by the rider of the offending vehicle or by the appellant. In the absence of any contra evidence, it cannot be assumed and that too on the basis of the so called recital in the First Information Report or the scene mahazar prepared by the police, that the claimant was also negligent or that absence of valid M.A.C.A.No.271/04 Page numbers driving licence had contributed to the accident. In that view of the matter we are not inclined to interfere with the finding entered by the Tribunal as regards the negligence on the part of the offending vehicle.

It is also not discernible from the award or the counter statement filed by the Insurance Company before the Tribunal that permission under Section 170 of the Act was obtained . Significantly appellant does not have a case that such permission was obtained. In that view of the matter also, the appellant cannot be heard to say that the finding entered by the Tribunal as regards negligence is incorrect. More importantly, there is no allegation of collusion also.

Lastly, learned counsel submits that the rate of interest may be reduced from 9%. We do not find any justifiable reason to accede to the above request either. Resultantly, the appeal fails and it is dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. M.A.C.A.No.271/04 Page numbers