J U D G M E N T

PRASHANT KUMAR MISHRA, J.

1. Challenge in this appeal is to the judgment and order dated 23.07.2019 passed by the High Court of Kerala in MACA No. 3331 of 2016 dismissing the appellants’ appeal while affirming

1 the Award passed by the Motor Accident Claims Tribunal by Signature Not Verified Digitally signed by Narendra Prasad Date: 2024.10.17 Reason:

1 ‘MACT’

which the appellants’ claim was dismissed. The parties are referred to in this judgment as they appear in the claim petition. 2. The widow, minor child and parents of the deceased Ikhbal are the appellants in the present proceedings. Ikhbal died in an accident on 10.06.2013 being knocked down by a car as he was proceeding in his motorcycle from Thodupuzha to Muttom. He died of the injuries sustained in the said accident which allegedly occurred on account of the negligence of the driver of the car. Respondent nos. 1 to 3 are the owner, driver and insurer of the car respectively. Respondent nos. 2 and 3 contested the claim petition while respondent no. 1 remained ex-parte.

3. According to the appellants, while the deceased was travelling on a motorcycle and reached near ‘Mrala’ junction, a K.S.R.T.C. bus, which was going in front, stopped at the bus stop. The deceased attempted to overtake the bus and at that time the subject car driven by respondent no. 2 came from the opposite direction and hit at the motorcycle of the deceased on which he fell down and sustained fatal injuries. He was taken to the hospital, but he succumbed to the injuries. The deceased was an employee as U.D. Clerk in Registration Department and had monthly income of Rs. 21,456/-.

4. Respondent nos. 2 and 3 denied the involvement of the car in the accident. According to them, respondent no. 2 was driving the car carefully and the accident occurred due to the negligence of the deceased because he attempted to overtake the parked K.S.R.T.C. bus. In the process, the motorcycle hit on the bus and the deceased fell down and sustained fatal injuries. The deceased was taken to the hospital by respondent no. 2 who reached the spot soon after the accident. The car of respondent no. 2 did not hit the deceased’s motorcycle. The respondent no.

3 admitted the policy.

5. The appellants examined six witnesses before the MACT while the respondents examined two witnesses. Both the parties exhibited number of documents in their evidence. The MACT assessed the compensation to hold that the appellants are entitled to a total compensation of Rs. 46,31,496/-. However, the claim petition was dismissed on the ground that the appellants have failed to prove that the accident occurred due to negligent driving of respondent no. 2/driver, nor it is proved that the car was involved in the accident. The said findings have been affirmed by the High Court.

6. Mr. Thomas P. Joseph, learned senior counsel for the appellants submits that there is ample evidence demonstrating involvement of the car in the subject accident and the findings to the contrary is utterly perverse. It is argued that the MACT and the High Court as well have recorded the findings adverse to the appellants basing on conjectures and surmises and by complete misreading the evidence. It is vehemently argued that the statement of witnesses have to be read in conjunction with principle of res ipsa loquitur, which the courts below have failed. Learned counsel prayed for allowing the appeal to award the sum assessed by the MACT.

7. Per contra, Mr. Atul Nanda, learned senior counsel for respondent no. 3 would submit that the courts below have correctly held that the subject car owned by respondent no. 1 was not involved in the accident. Referring to the statement of witnesses, learned senior counsel has argued that none of the witnesses have seen the car hitting the motorcycle driven by the deceased. It is lastly argued that both the courts below have recorded the findings after careful examination of the evidence which warrants no interference by this Court in e