JUDGMENT

The appellant was the petitioner in OP(MV)

No.1046/2003 on the file of the Motor Accidents Claims Tribunal, Kollam. The respondents in the appeal were the respondents before the Tribunal.

2. The appellant had initially filed the claim petition under section 166 of the Motor Vehicles Act, 1988 ('the Act' in short), claiming compensation on account of the injuries sustained to him in the accident on 13.4.2003. During the pendency of the claim petition, the appellant sought leave of the Tribunal and amended the claim petition to one under Sec.163A of the Act. It was his case that, on the above said day, while he was riding his motor cycle bearing registration No.KL-2/N 6960 along the Kollam-

Thiruvananthapuram National Highway 47, a car bearing registration No.KL-8/9579, driven by the first respondent in a negligent manner, suddenly moved in the reverse gear and hit the motor cycle of the appellant. The appellant fell down and sustained serious injuries, including a fracture of his jaw and dislocation of his knee bone. He was treated at the Nair's Hospital, Kollam and at the SP Fort Hospital, Thiruvananthapuram. The appellant was a businessman by profession and earning a monthly income of Rs.1,400/-. The respondents 2 and 3 were the owner and insurer of the car and respondents 4 and 5 were the owner and insurer of the motor cycle. Hence, the appellant claimed a total compensation of Rs.4,20,000/- from the respondents, which claim was limited to Rs.4,00,000/-.

3. The respondents 1, 2 and 4 did not contest the proceeding and were set ex parte.

4. The third respondent had filed a written-

statement, inter alia, contending that the accident occurred due to the negligence of the appellant. Therefore, the third respondent prayed for exoneration of its liability.

5. The fifth respondent had filed a written statement contending that it was not a necessary party in the proceeding, as the accident occurred due to the negligence of the first respondent. Hence, fifth respondent also prayed to be exonerated.

6. The appellant examined himself and a witness as PWs 1 and 2 and marked Exts A1 to A9 in evidence.

7. The Tribunal, after analysing the pleadings and materials on record, dismissed the claim petition on the ground that the accident occurred due to the negligence of the appellant.

8. Aggrieved by the dismissal of the claim petition, the petitioner is in appeal.

9. Heard Sri.R.S Kalkura, the learned counsel appearing for the appellant/petitioner, Smt.Deepa George, the learned counsel appearing for the third respondent/insurer of the car and Sri.Thomas Mathew Nellimoottil, the learned counsel appearing for the fifth respondent/insurer of the motor cycle.

9. The questions that arise for consideration in the appeal are: (i) whether the dismissal of the claim petition is sustainable in law, and (ii) if the claim petition is to be allowed, what is the quantum of compensation payable to the appellant?

Question No.(i)

10. The specific case of the appellant was that the accident occurred due to the negligence of the first respondent, who drove the car in a negligent manner. In order to substantiate the assertion in the claim petition, the appellant examined himself and a witness as PWs 1 and 2 and he produced Ext A2 final report filed by the Kollam Traffic Police in crime No.133/2003. Ext A2 proves that the accident occurred due to the negligence of the first respondent. The Tribunal after evaluating the oral testimonies of PWs 1 and 2 and Ext A1 FIR, A2 final report and Exts A3 to A3(c) scene mahazars arrived at the conclusion that the accident occurred due to the negligence of the appellant. Hence, the Tribunal dismissed the claim petition.

11. It is trite law, as held by the Hon'ble Supreme Court in United India Insurance Co.Ltd v. Sunil Kumar – [2017 (4) KLT 1093(SC)], that in a claim petition filed under Sec.163A, the question of negligence cannot be looked into.

12. In the light of the categoric declaration of law in Sunil Kumar (supra) and the