IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE M.R.ANITHA FRIDAY, THE 11^TH DAY OF MARCH 2022 / 20TH PHALGUNA, 1943 MACA NO. 1711 OF 2012 AGAINST THE ORDER/JUDGMENT IN OPMV 815/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI APPELLANT/PETITIONER:

MUSTHAFA S/O.SIDHIQUE,KADAVATH HOUSE, ERANCHIKODE P.O.,KUNDUTHODU, EDAVANNA -

VIA, MALAPPURAM DIST BY ADV SRI.P.VENUGOPAL (1086/92)

RESPONDENTS/RESPONDENTS:

1 SHIBU S/O.JOY,PAZHAMBALLI HOUSE, KARULAYI P.O.,NILAMBUR TAUK,MALAPPURAM DISTRICT PIN-679330

2 SHIHAB S/O.KUNHALANKUTTY, THEKKETHODIKA HOUSE, KARULAYI P.O.,NILAMBUR TALUK,MALAPPURAM DISTRICT, PIN-679330

3 BANAJ ALLIANZ GENERAL INSURANCE COMPANY LTD

3RD FLOOR, FINANCE TOWER, NEAR NEW INDIAN EXPRESS, KALOOR, ERNAKULAM, PIN-682017 BY ADVS.

SRI.U.K.DEVIDAS SRI.GEORGE CHERIAN THIRUVALLA OTHER PRESENT:

SMT K.S SANTHI-R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON

11.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

This appeal has been filed against the award passed in O.P.(M.V)No.815/2008 on the file of the Motor Accidents Claims Tribunal, Manjeri. The claim petition has been filed under Section 166 of the Motor Vehicles Act (in short, ‘the Act’) for the injuries sustained by the appellant/claimant out of a motor vehicle accident occurred on 27.01.2008 while he was walking with his friend along the edge of road margin of Kunduthodu Angadi in Nilambur – Manjeri road at about 6.00 a.m. It is alleged that accident happened due to the rash and negligent driving of the lorry by the 1^st respondent. Second respondent is the owner of the offending vehicle. Third respondent is the insurer. A total compensation of Rs.2,00,000/- has been claimed.

2. Before the Tribunal, respondents 1 and 2 did not contest the matter. Third respondent filed written statement denying the negligence on the part of the 1^st respondent. The delay of 36 hours in lodging the FIR is suspicious.

3. It is contended that since the offending vehicle was driven away without stopping, there was no chance for identification of the driver of the vehicle. It is further contended that the offending vehicle was inspected by the Motor Vehicle Inspector only after 18 days i.e. on 15.2.2008. It has been in police custody for ten days. It is also contended that the vehicle was inspected at the premises of Wandoor police station though the place of incident is within the limits of Edavanna police station. So according to the respondent there are materials to suspect that the appellant/claimant sustained injury in some other incident and not with respect to the use of this alleged vehicle. But the policy coverage with respect to the offending vehicle is admitted.

4. Exts.A1 to A5 series and Ext.X1 marked from the side of the claimant. Exts.B1 to B11 were marked from the side of the respondent. There was no oral evidence from either side. Tribunal on evaluation of the pleadings as well as the materials produced from either side found that the claimant failed to prove that he sustained injury by hit with vehicle bearing Reg.KL 11R 8840. It is also found that there is no evidence to hold the first respondent was the driver of the offending vehicle at the time of the accident and ultimately the Tribunal dismissed the claim petition for those reasons. Aggrieved by the dismissal of the claim petition by the Tribunal, appellant/claimant approaches this Court in appeal for the various ground stated in the memorandum of appeal.

5. Respondents 1 and 2 appeared through counsel Sri. U.K.Devidas. Third respondent, insurer, appeared through Smt.K.S. Santhi. Lower court records were called for and perused.

6. Heard both sides.

7. The main contention of the learned counsel is with respect to the finding of the Tribunal that the appellant/claimant (hereinafter be referred to as the claimant) failed to prove the involvement of the vehicle Reg.No.KL 11R 8840 as well as that the first respondent is the driver of the vehicle during the relevant time. He w