Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN MONDAY, THE7H DAYOF OCTOBER201315TH ASWINA, 1935 MACA.No. 1885 of 2010 ( ) -------------------------- OPMV.1403/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR. ....... APPELLANT (PETITIONER IN OPMV.1403/05): --------------------------------------------------------------- JANCY, AGED43YEARS, W/O.JOSE, KOTTUNGAL HOUSE, THURAVUMKARA P.O., KANJOOR, VADAKUMBHAGAM VILLAGE, ALUVA VILLAGE. BY ADVS.SRI.V.K.GOPALAKRISHNA PILLAI, SRI.GOPAKUMAR G. (ALUVA). RESPONDENT (RESPONDENTS IN OPMV.1403/05): -------------------------------------------------------------------------- 1. JOSE.K.O, S/O.OUSEPH, KOOTTUNGAL HOUSE, THURAVUMKARA P.O., KANJOOR, KALADY (VIA), ERNAKULAM (DIST), PIN-683 574.
2. THE ORIENTAL INSURANCE CO. LTD., IST FLOOR, KALLOOKARAN SHOPPING COMPLEX, ANGAMALY- 683 572, ANGAMALYP.O. R2 BY ADV. SRI.A.R.GEORGE. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON0710-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S.SIRI JAGAN & K.RAMAKRISHNAN, JJ.
================== M.A.C.A.No. 1885 of 2010 ================== Dated this the 7th day of October, 2013
JUDGMENT
S.Siri Jagan, J.: A wife has come up in appeal against her own husband complaining that the finding of the Tribunal that the accident in which, the appellant suffered injuries, did not happen because of the negligence on her own husband is unsustainable. The wife was travelling in a motor cycle as a pillion rider, which motor cycle was driven by her husband, the 1st respondent herein. She suffered lacerated wound on her right heel on 27.4.2005. She claimed to have been admitted in Vimala Hospital, Kanjoor, first, who allegedly referred the appellant to the Little Flower Hospital, Angamali. Neither the Vimala Hospital nor the Little Flower Hospital, Angamali, reported any accident to the police. Neither the appellant nor the 1st respondent reported any accident to the police. After almost one month, the mother of the appellant filed a private complaint before the Judicial First Class Magistrate's Court, Perumbavoor, on 18.5.2005 in respect of the M.A.C.A.1885/10 - :
2. :- accident. That was referred to the police under Section 156(3) of Crl.P.C. and an F.I.R was registered on 31.5.2005 on the basis of the private complaint. Thereafter, the appellant filed O.P.(M.V). No.1403/2005 before the Motor Accidents Claims Tribunal, Perumbavoor, claiming compensation from her husband and insurance company with whom the vehicle was insured, for the injuries suffered by the appellant. The Tribunal, refused to believe the case of the appellant and dismissed the O.P. It is challenging that award of the Tribunal, the appellant has filed this appeal.
2. The contention of the appellant is that the finding of the Tribunal is contrary to the evidence adduced. It is pointed out that the appellant has given evidence as PW1, in support of the case of the appellant, which could not be shaken in cross examination. The police records are to the effect that the rider of the motor vehicle was negligent. That being so, the Tribunal could not have validly entered a finding that there is no negligence on the part of the 1st respondent is the contention raised. It is further submitted that insofar as the vehicle is insured with the 2nd respondent, notwithstanding the fact that M.A.C.A.1885/10 - :
3. :- the rider was the appellant's husband, the insurance company does not cease to be liable for the compensation payable to the appellant on account of the injuries sustained by her in an accident caused by the negligence of her own husband.
3. On the other hand, the learned counsel for the insurance company would contend that the facts revealed would unmistakenly go to show that the case of the appellant was not believable. The Tribunal has given very cogent reasons as to why the appellant's case cannot be believed. That being so, there is no perversity in the findings of the Tribunal is the contention raised.
4. We have considered the rival contentions in detail.
5. The accident was on 27.4.2005. Although the appellant claimed to have been first admitted in Vimala Hospital, Kanjoor, no evidence was adduced except her own testimony to prove the same. Hospital records from Little Flower Hospital, Angamali, are produced. That also does not show that the appellant came to the Little Flower Hospital, Angamali, as per a reference from Vimala Hospital, Kanjoor. Neither the Vimala Hospital nor the Little Flower Hospital, reported any accident to M.A.C.A.1885/10 - :
4. :- the police. In the wound certificate issued from the Little Flower Hospital, the alleged cause of injury is stated thus: "R.T.A. spokes wheel injury right heel" The report of the AMVI shows that there was no damage to the motor cycle. The husband of the appellant also did not sustain any injuries whatsoever. The private complaint was filed almost three weeks after the accident. Before filing the private complaint before the Magistrate, the appellant did not file a complaint before the police also. The appellant has no case that pursuant to any complaint before the police, the police did not take any action. We are of opinion that these are facts, which would lead any reasonable person to the conclusion that the accident did not occur because of any negligence on the part of the husband, but on account of her own negligence in poking her heel into the spokes of the back wheel of the motor cycle, while she was riding as a pillion rider. As such, the preponderance of probability is that the appellant filed the claim only to make unjust enrichment from the insurance company, simply because the vehicle was insured with the 2nd respondent- insurance company with a concocted case of a motor accident M.A.C.A.1885/10 - :
5. :- caused by the negligent driving of the vehicle by her husband. Therefore, we are not inclined to believe the case of the appellant and we are of opinion that the Tribunal rightly dismissed the claim. Accordingly, the appeal is dismissed. Sd/- S.SIRI JAGAN, JUDGE Sd/- sdk+ K.RAMAKRISHNAN, JUDGE ///True copy/// P.A. To Judge.