Kerala High Court
Shereena.A vs Sreekanth.S on 13 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
MONDAY, THE 13TH DAY OF MARCH 2023 / 22ND PHALGUNA, 1944
OP (MAC) NO. 108 OF 2020
AGAINST THE ORDER/JUDGMENTOPMV 756/2017 OF ADDITIONAL
DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL,
PATHANAMTHITTA / I ADDL. M.A.C.T.
PETITIONER/S:
1 SHEREENA.A
AGED 34 YEARS
W/O. MANZOOR, ALHIDAYA, PANDALAM P.O, ADOOR,
NOW RESIDING AT CHUNDAYIL PUTHEN VEEDU, KADAKKADU,
PANDALAM, PATHANAMTHITTA DISTRICT,
(WIDOW OF THE DECEASED)
2 ASHIK M
AGED 16 YEARS
S/O. MANZOOR, ALHIDAYA, PANDALAM P.O, ADOOR,
NOW RESIDING AT CHUNDAYIL PUTHEN VEEDU, KADAKKADU,
PANDALAM, PATHANAMTHITTA DISTRICT, (SON OF THE DECEASED)
3 AFNA MOL
AGED 12 YEARS
D/O. MANZOOR, ALHIDAYA, PANDALAM P.O, ADOOR,
NOW RESIDING AT CHUNDAYIL PUTHEN VEEDU, KADAKKADU,
PANDALAM, PATHANAMTHITTA DISTRICT,
(DAUGHTER OF THE DECEASED)
4 AYISHA BEEVI
AGED 73 YEARS
W/O.SAINULDEEN, ALHIDAYA, PANDALAM P.O, ADOOR,
NOW RESIDING AT CHUNDAYIL PUTHEN VEEDU, KADAKKADU,
PANDALAM, PATHANAMTHITTA DISTRICT, (MOTHER OF THE
DECEASED).
(PETITIONERS 2 AND 3, MINORS REPRESENTED BY THEIR MOTHER/
GUARDIAN SHEREENA.A(1ST PETITIONER)
BY ADV T.V.NEEMA
OP (MAC) NO. 108 OF 2020
2
RESPONDENT/S:
1 SREEKANTH.S
S/O. SREEDHARAN, CHIRAMUDIYIL, KOZHUVALLOOR P.O,
VENMONY, CHENGANNOOR - 689521(DRIVER).
2 SARADA S
S/O. SREEDHARAN, CHIRAMUDIYIL, KOZHUVALLOOR P.O,
VENMONY, CHENGANNOOR - 689521(OWNER),
VEHICLE NO.KL 30C7674, SCOOTER.
3 THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LIMITED, T.P.HUB,
KHAISE BUILDING, BEACH ROAD,
OPP.BENZIGAR HOSPITAL, KOLLAM- 691001,
(POLICY NO.76170431160100008924 VALID FROM 31.10.2016 TO
30.10.2017)
BY ADVS.
SRI.MATHEWS JACOB (SR.)
SRI.P.JACOB MATHEW
THIS OP (MAC) HAVING COME UP FOR ADMISSION ON
13.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP (MAC) NO. 108 OF 2020
3
JUDGMENT
This original Petition is filed challenging the order dated 10.12.2020 in
I.A. No. 2/2020 in O.P.(M.V.) No. 756/2017 on the file of Motor Accidents
Claims Tribunal, Pathanamthitta. By the impugned order, the Claims
Tribunal has rejected the application filed by the claimant to examine a
certain Asim Ahammed @ Asim, who was the pillion rider in the bike ridden
by the deceased Manzoor.
2. The learned counsel appearing for the petitioner submits that the
order passed by the Motor Accidents Claims Tribunal cannot be sustained
under law as the only reason stated therein is that the proposed witness has
also filed O.P.(M.V.) No. 1129/2017 u/s 163A of the Motor Vehicles Act
against the respondents. It is stated that the original petition filed by the
claimants is one filed u/s 166 of the Motor Vehicles Act.
3. The learned counsel appearing for the Insurance Company
submitted that the application is filed belatedly and that, too, at the time of
hearing of the matter. It is submitted that ample opportunities were granted,
which were not availed.
4. I have considered the submissions advanced.
OP (MAC) NO. 108 OF 2020
5. The petitioners herein are the claimants in O.P.(M.V) No.
756/2017, which is one filed u/s 166 of the Motor Vehicles Act. The Tribunal
has proceeded on the premise that the proposed witness has preferred an
application u/s 163A of the Motor Vehicles Act, and the same is pending as
O.P.(M.V) No. 1129/2017. According to the Tribunal, being the pillion rider,
the proposed witness cannot be permitted to depose in the instant case.
6. The learned counsel appearing for the petitioner submits that in
order to prove the accident, there is no better person than the Pillion Rider,
who was the solitary eye witness. Technicalities shall not stand in the way of
a claimant to adduce the best evidence to prove their case, contends the
learned counsel. According to the learned counsel, the fact that the pillion
rider has filed a claim petition u/s 163A of the Motor Vehicles Act is not a
reason which should have persuaded the Tribunal to reject the request of
the petitioners
7. Having considered the submissions, I find force in the submissions
advanced by the learned counsel appearing for the petitioner. The
petitioners herein are the legal representatives of one Manzoor, who
suffered fatal injuries in a motor vehicle accident. Their application was to
examine the pillion rider who was the prime witness to prove their claim.
The Tribunal has taken the view that as the pillion rider has himself filed a
OP (MAC) NO. 108 OF 2020
claim petition against the same respondents, he cannot be permitted to
depose in the case. I am not able to sustain the above order.
Resultantly this Original Petition is ordered as follows:
(i) Ext. P5 will stand set aside.
(ii) I.A. No.2/2020 in O.P.(M.V.) No. 756/2017 will stand allowed. The
Tribunal is directed to permit the petitioner to examine the witness cited in
the application.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
avs
OP (MAC) NO. 108 OF 2020
APPENDIX OF OP (MAC) 108/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE CLAIM PETITION OP(MV)NO. 756/2017
DATED 22.06.2017 OF MACT, PATHANAMTHITTA.
EXHIBIT P2 TRUE COPY OF THE CLAIM PETITION FILED BY AZEEM
AHAMMED IN OP(MV) 1129/2017 OF MACT,
PATHANAMTHITTA DISTRICT 11.09.2017,
EXHIBIT P3 TRUE COPY OF THE IA 2/2020 IN OP(MV) 756/2017 OF
MACT, PATHANAMTHITTA DATED 23.11.2020.
EXHIBIT P4 TRUE COPY OF THE OBJECTION IN IA 2/2020 IN OP(MV)
756/2017 FILED BY THE INSURANCE COMPANY DATED
25.11.2020.
EXHIBIT P5 TRUE COPY OF THE ORDER IN IA.2/2020 IN OP (MV)
756/2017 DATED 10.12.2020.
