IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE M.R.ANITHA FRIDAY, THE 8^TH DAY OF APRIL 2022 / 18TH CHAITHRA, 1944 MACA NO. 2281 OF 2009 AGAINST THE JUDGMENT dated 28.02.2009 IN OPMV 17/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA APPELLANT/PETITIONER IN O.P(M.V):

RAJU @ OUSEPH PUKAYILAKKARAN HOUSE, VAZHIYAMBALAM DESOM,, KODAKARA VILLAGE, MANAKULANGARA.P.O.,, MUKUNDAPURAM TALUK, THRISSUR DIST.

BY ADVS.

SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS/RESPONDENTS IN O.P(MV):

1 BIJU DEVASSY S/O.DEVASSYIKUTTY, KAVUNGAL HOUSE, MANAKULANGARA.P.O.

2 THE ORIENTAL INSURANCE CO. LTD.

SOUTH JUNCTION, CHALAKUDY.

BY ADV SRI.VPK.PANICKER FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.04.2022, THE COURT ON 08.04.2022 DELIVERED THE FOLLOWING:

M.R.ANITHA, J ******************

M.A.C.A.No.2281 of 2009 ----------------------------------------------------------

Dated this the 8th day of April, 2022

JUDGMENT

This appeal has been filed against the award passed in O.P.M.V No.17/2004 on the file of Motor Accidents Claims Tribunal, Irinjalakkda (in short 'Tribunal') for the injuries sustained by the appellant/claimant in a motor accident occurred on 29.07.2003 while travelling as pillion rider of motorcycle bearing Reg.No.KL-14D/3008 ridden by the first respondent. The claim petition has been filed under Section 163A of the Motor Vehicles Act, 1988 (in short 'the Act'). Total claim of Rs.3,18,000/- was made.

2. 1^st respondent remained ex parte. 2^nd respondent/insurer filed written statement contending that the appellant is not entitled to get compensation under Section 163A.

It is also contended that the accident occurred due to the rash and negligent driving of driver of lorry and police charge has been registered against the lorry driver was later referred as undetected.

3. Exts.A1 to A7 marked from the side of the appellant/claimant and there was no oral evidence from either side.

4. Tribunal, on evaluating the pleadings as well as documents found that the annual income of the claimant exceeds the amount prescribed and there was no permanent disablement as defined under the provisions of Workmen's Compensation Act read with Section 163A of the Act. It is also found that the police charge and other documents produced from the side of the appellant/claimant would go to show that the case was registered against the driver of an unidentified lorry and later the crime was referred as undetected. The first information statement given by the claimant is also attributing negligence against the lorry driver but disowning the statement in the F.I.S he made an allegation of negligence against the first respondent in the claim petition in order to claim compensation under Section 163 A of the Act. Ultimately finding that there is no evidence to prove that the appellant sustained any permanent disablement and his income claimed exceeds the prescribed limit for bringing the claim under Section 163A of the Act, the claim petition was dismissed.

5. Aggrieved by the dismissal of the claim petition, the appellant approaches this Court in appeal.

6. Learned Standing Counsel Sri.V.P.K.Panicker appeared on behalf of the second respondent/insurer. Though notice was duly served upon the first respondent, there is no appearance on behalf of him. Heard learned counsel for the appellant as well as the learned Standing Counsel for the insurer. Lower court records were called for and perused.

7. According to the learned counsel for the appellant, the appellant was the pillion rider in a motorcycle ridden by the first respondent and the accident occurred due to collision between the lorry and the motorcycle and hence this is a case of composite negligence and hence the liability of the rider of the motorcycle as well as that of the lorry driver is joint and several being joint tort-feasers and hence he can claim against either of them. So, even though the claim petition is not maintainable under Section 163A of the Act, it ought to h