Navas.K vs Sajeer & Others
2022 Latest Caselaw 169 Ker

MACA NO. 1635 OF 2009
                                    1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR.JUSTICE C.S.DIAS
   TUESDAY, THE 11TH DAY OF JANUARY 2022 / 21ST POUSHA, 1943
                        MACA NO. 1635 OF 2009
 AGAINST THE ORDER/JUDGMENT IN OPMV 223/2005 OF MOTOR ACCIDENT
                     CLAIMS TRIBUNAL ,KALPETTA
APPELLANT/S:

            NAVAS.K., AGED 26 YEARS
            S/O.YOOSUFF, KOMATH HOUSE, MANANTHAVADY POST,,
            KANIYARAM, MANANTHAVADY TALUK,, WAYANAD DISTRICT.

            BY ADV SRI.N.J.ANTONY



RESPONDENT/S:

    1       SAJEER ,AGE NOT KNOWN, S/O.ABDULLA
            KUNNATH HOUSE, B STREET, MANANTHAVADY,, WAYANAD
            DISTRICT., (DRIVER OF MOTOR CYCLE NO.KL-12/6819,
            D.L.NO.NOT KNOWN)

    2       BRAN ALI AGE NOT KNOWN S/O.MOIDU
            BRAN HOUSE, ELLUMANDAM POST,, EDAVAKA, MANANTHAVADY
            TALUK., (OWNER OF MOTOR CYCLE NO.KL-12/6819)

    3       UNITED INDIA INSURANCE CO.LTD.
            KALPETTA., (POLICY NO.101601/31/04/2575 FROM, 2/9/04
            TO 2/9/05).

            BY ADVS.
            SRI.S.MOHAMMED AL RAFI
            S.K.AJAY KUMAR
            SRI.P.V.JYOTHI PRASAD




     THIS   MOTOR   ACCIDENT   CLAIMS    APPEAL   HAVING   COME   UP   FOR
ADMISSION ON 11.01.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 MACA NO. 1635 OF 2009
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                          JUDGMENT

The appellant was the petitioner in OP(MV) No.223/2005

on the file of the Motor Accidents Claims Tribunal, Kalpetta.

The respondents in the appeal were the respondents before the

Tribunal.

2. The appellant had filed the claim petition under Section

166 of the Motor Vehicles Act, 1988, claiming compensation on

account of the injuries sustained to him in an accident on

09.12.2004. It was his case that, on the above said date, while

he was traveling pillion on a motor cycle bearing registration

No.KL-12-6819, from Mananthavady to Amboothy, due to the

rash and negligent driving of the motor cycle by the 1 st

respondent, the appellant fell into a gutter and sustained

serious injuries. The appellant was treated as an inpatient

from 10.12.2004 to 18.12.2004. The motor cycle was owned by

the 2nd respondent and insured with the 3 rd respondent. Hence,

the appellant claimed a compensation of Rs.1,50,000/- from the

respondents.

3. The respondents 1 and 2 did not contest the

proceedings.

MACA NO. 1635 OF 2009

4. The 3rd respondent had filed a written statement

contending that the motor cycle was covered only by an "Act

Policy", and therefore, the 3rd respondent has no liability to pay

the compensation amount to the appellant.

5. The appellant produced and marked Ext.A1 FIR, Ext.A2

AMVI report and Ext.A3 discharge certificate.

6. The Tribunal, after analysing the pleadings and

materials on record, arrived at a conclusion that the appellant

has not proved that the 1st respondent was negligent in causing

the accident. Accordingly, the Tribunal dismissed the claim

petition.

7. Aggrieved by the dismissal of the claim petition, the

petitioner is in appeal.

8. Heard; Sri. N.J. Antony, the learned counsel appearing

for the appellant/petitioner, Sri. Mohammed Al Rafi, the

learned counsel appearing for the 1st respondent and Sri. S.K.

Ajayakumar, the learned counsel appearing for the 3 rd

respondent.

9. The question that emerges for consideration in this

appeal is whether the order of dismissal is sustainable in law or

not ?

MACA NO. 1635 OF 2009

10. The specific case of the appellant in the claim petition

was that the accident occurred due to the negligence of the 1 st

respondent while riding the motor cycle. Other than for the

bald assertion in the claim petition, the appellant has not

mounted the box and let in oral evidence or produced the

charge sheet filed by the Police pursuant to Ext.A1 FIR.

11. In Surender Kumar Arora and another vs. Dr.

Manoj Bisla and others [AIR 2012 SC 1918], the Honourable

Supreme Court has categorically held that the onus to prove

negligence is on the claimant. Similarly, in Minu B. Mehtha

and another vs. Balakrishna Ramachandra Nayan and

another [(1997) 2 SCC 4] , the Honourable Supreme Court has

held that in a case filed under Section 166 of the Motor

Vehicles Act, 1988, it is imperative for the claimant to prove

that the accident occurred due to the negligence of the

rider/driver of the offending vehicle.

12. In the instance case, other than for the mere plea in

the claim petition that the accident occurred due to the

negligence of the 1st respondent, the appellant has not

tendered any oral evidence or produced any material to

substantiate his pleadings. The non-production of the charge MACA NO. 1635 OF 2009

sheet compels this Court to assume that the Police may have

referred the case as a motor occurrence. I do not find any error

or illegality in the conclusion arrived at by the Tribunal that the

1st respondent was not negligent in causing the accident. Thus,

I do not find any ground warranting interference by this Court.

In the result, the appeal is dismissed. However, in the facts and

circumstances of the case, the parties shall bear their

respective costs.

Sd/-

C.S.DIAS, JUDGE

rkc/11.01.2022