L.MINI Vs. GIREESHKUMAR

JUDGEMENT

(1.) This appeal is filed by the claimants in O.P.(MV)No.37/2011 on the file of the Motor Accidents Claims Tribunal, Kollam against its dismissal. They are the wife, children and mother of one Biju who died in a motor vehicle accident occurred on 21.03.2010 at about 5.30 p.m. It is the case of the appellants that deceased Biju was the owner of the motor bike involved in the accident and he was travelling as its pillion rider. At the time of accident, the bike was driven by one Gireesh Kumar. The vehicle involved in the accident was insured with the second respondent in the claim petition. The claim petition was moved against the rider of the motor bike as well as the insurance company. The claim petition was dismissed on the ground that the deceased is not a third party and he is the insured himself.

(2.) When the appeal came up for hearing, the learned counsel for the appellants raised the following points for the consideration of this court:

(3.) Though the specific allegation of the claimants in the claim petition was that the accident in question had occurred due to the negligence of the first respondent he remained exparte before the Tribunal. Inspite of receipt of notice he has not chosen to enter appearance and resit this appeal. It assumes relevance, in view of the fact that even while dismissing the claim petition as per the impugned judgment the Tribunal returned a definite finding as against the first issue formulated for consideration viz., 'at whose fault the accident and death of Shri. Biju took place' that it was at the fault of the first respondent that the accident and death of Shri. Biju took place. Evidently, the 2nd respondent alone contested the matter before the Tribunal. In the written statement filed before the Tribunal the fact that the motorcycle involved in the accident was insured with the National Insurance Company was admitted. However, the liability was disowned citing the ground that the deceased was not a third party but he was its insured owner. The fact that a personal accident coverage for an amount of Rs.1,00,000/- was given to the insured/owner-cum- driver was also admitted thereunder. But, it was further stated that as the deceased was not the rider of the vehicle at the time of the accident and also that no additional premium was collected to cover any other task. Incidentally, the allegation that the accident was caused due to the rash and negligent riding of the motorcycle was also denied. Evidently, relying on Exts.A1 to A6 particularly Ext.A2 final report laid against the first respondent under Sections 279 and 304A of the Indian Penal Code and based on the failure of the respondents to adduce any rebuttal evidence the Tribunal held that the accident took place due to the negligence on the part of the first respondent. Despite such adverse finding the second respondent also did not file any cross objection in this appeal against the said finding. In the decision in New India Assurance Co. Ltd v. Pazhaniammal [2011 (3) KLT 648] a Division Bench of this Court held that production of the final report would prima facie sufficient evidence to prove negligence as regards a claimant, in a claim petition filed under Section 166 of the Motor Vehicles Act. In the said circumstances there is absolutely no reason to interfere with the finding of the Tribunal that the accident in which Shri. Biju died occurred due to the negligence of the first respondent.