IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 MACA.No. 895 of 2005() ---------------------- OPMV.1716/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): APPELLANT: ------------------------ BABY, S/O. VARGHESE, AGED 40 YEARS, OOMELIL HOUSE, UBI ROAD, NEAR KALLUNGAL AUDITORIUM, PERUMBAVOOR. BY ADV. SRI.K.RAMACHANDRAN SRI.NIBU MURALI SRI.S.SREEDEV RESPONDENT(S): RESPONDENTS --------------- 1. K.O. ANSON, KAVUNGAL HOUSE, VELLIKULANGARA, THRISSUR DISTRICT. 2. JOHNY, S/O. ANTONY, CHALOOKKADAN HOUSE, MANNUMPETTA DESOM, AMBALLOOR. 3. NATIONAL INSURANCE COMPANY LTD., MAIN ROAD, IRINGALAKKUDA. ADV. SRI.M.C.GOPI FOR R1 SMT.SARAH SALVY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 895 of 2005 ------------------------------------------------------ Dated: JUNE 30, 2010 JUDGMENT Barkath Ali, J. The appellant is the claimant in OP(MV) 1716/1994 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. He is the registered owner of the lorry bearing registration No.KLY 5647. On June 20, 1994 when the said lorry was returning from Palakkad to Perumbavoor after unloading goods and reached at Koratty Junction at about 2 p.m., a bus bearing Regn.No.KEE 7139 collided head on with the lorry causing extensive damage to the lorry. Alleging negligence against the 2nd respondent, the driver of the bus, the claimant filed the OP claiming a compensation of Rs.1,55,000/- for the loss caused to him on account of the damage caused to the lorry; against respondents 1 to 3, the owner, driver and insurer of the bus. 2. PWs.1 to 5 were examined and Exts.A1 to A7 were marked on the side of the claimant before the Tribunal. Only 3rd respondent, insurer, contested the matter, though admitted the policy coverage of the offending bus. Copy of the policy was marked as Ext.B1. Ext.X1 was also marked. On an appreciation of evidence the M.A.C.A. 895 of 2005 2 Tribunal found that the claimant has failed to prove that the lorry sustained damages as alleged by the claimant and dismissed the OP by judgment dated December 10, 2004. The claimant has now come up in appeal challenging the said judgment of the Tribunal. 3. The counsel for the appellant/claimant argued that in the light of the evidence adduced by the claimant and the fact that respondents did not deny the accident, the Tribunal went wrong in finding that no such accident happened. The 3rd respondent, the Insurance Company, on the other hand, supported the judgment of the Tribunal. 4. The following points arise for consideration: I. Whether the finding of the Tribunal that the lorry of the claimant sustained damages not as alleged in the petition can be sustained? II. If not, what is the compensation the claimant is entitled to? Point No.I 5. On going through the evidence adduced by the claimant before the Tribunal, we are of the view that the Tribunal went wrong in finding that the claimant has failed to prove the accident. PW.1 was the claimant. PWs.2 and 3 were the driver and cleaner respectively of the lorry. PW.4 was the then Head Constable of Koratty Police Station who prepared the original of Ext.X1, the G.D. extract. Pws.2 and 3 testified convincingly before the Tribunal that the bus skidded and M.A.C.A. 895 of 2005 3 dashed against the lorry. Nothing was brought out in cross- examination to discredit their evidence. Their version is supported by Ext.X1. Further, respondents 1 and 2 have not chosen to come forward to deny the said accident. The 3rd respondent, the insurer, also did not adduce evidence to prove that no such accident happened. Thus the evidence of PWs.2 and 3 and Ext.X1 prove beyond doubt that on June 20, 1994 at Koratty Junction the bus bearing Regn.No.KEE 7139 collided head on with the lorry of claimant KLY 5647 and caused the damage described in Ext.A3, the report of the Surveyor. The finding of the Tribunal that no such accident happened is set aside. 6. The next question for consideration is whether the accident occurred due to the negligence of the driver of the bus, the 2nd respondent. The accident itself shows that there was negligence on the part of the 2nd respondent, the driver of the bus. The 2nd respondent has not chosen to come forward and swear that there was no negligence on his part. For all these reasons we set aside the judgment of the Tribunal and hold that the accident occurred due to the negligence of the 2nd respondent, the driver of the bus, and that therefore the claimant is entitled to compensation from the respondents for the damage caused to his lorry, that the lorry of the claimant sustained damages as alleged in the petition. M.A.C.A. 895 of 2005 4 Point No.II 7. The next point to be considered is what is the quantum of damages the claimant is entitled to. The claimant examined the Surveyor (P.W.5) and proved his report, Ext.A3 and photos Ext.A4. The Surveyor has assessed the cost of spare parts as Rs.1 lakh and the cost of labour as Rs.46750/-. As the Tribunal has not quantified the damages, the matter has to go back for deciding the same. In the result, the appeal is allowed by way of remand. It is found that the accident occurred due to the negligence of the bus driver, 2nd respondent and that the claimant is entitled to compensation from the respondents for the damages caused to his lorry. The matter is remanded to the Tribunal to quantify the damages due to the claimant. The Tribunal shall dispose of the case on the basis of the evidence available and the further evidence the parties may adduce, if any, within two months from the date of receipt of a copy of this judgment. The parties shall appear before the Tribunal on 30.9.2010. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/- M.A.C.A. 895 of 2005 5