IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 MACA.No. 2354 of 2009() --------------------------------- OPMV.673/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA ...................................... APPELLANT(S): --------------- JAMES, S/O.RAPHEL, MOOTHEDAN HOUSE, IMURI, MAVELIPADY, KURUPPUMPADI, PERUMBAVOOR. BY ADV. SRI.V.K.GOPALAKRISHNA PILLAI SRI.GOPAKUMAR G. (ALUVA) RESPONDENT(S): --------------- 1. JANAKI AMMA, AGED 73, W/O.CHELLAPPAN, RESIDING AT CHALLIL PUTHEN PURA VEEDU, KADATHI KARA, VELLORKUNNAM REPRESENTED BY HER DAUGTER VALSAL RAJU, W/O.RAJAU AGED 40, CHALIL PUTHENPURA VEEDU, KADATHIKARA, VELLORKUNNAM VILLAGE. 2. C.A.RAJEEVE, RESIDING AT CHINGAPURATHU HOUSE, MARANGATTULLIL KARA, THRIKKARIYOOR. 3. PRAKASH, AGED 55, S/O.CHANDRASEHARAN NAIR, PARAKADATHIL PUTHIYAMADATYIL VEEDU, VELLORKUNNAM VILLAGE, MUDAVOOR KARA. 4. P.P.GOPI, PARACKAL HOUSE, KUNNACKAL P.O., VALAKOM, ERNAKULAM. 5. UNITED INDIA INSURANCE CO.LTD., MUNCIPAL SHOPPING COMPLEX, KACHERITHAYAM, MUVATTUPUZHA. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/02/2010, ALONG WITH W.P.C.4035 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou. M.N. KRISHNAN, J. ------------------------------- M.A.C.A.No.2354 OF 2009 & W.P.(C).No.4035 OF 2010 --------------------------------------- Dated this the 23rd day of February, 2010 J U D G M E N T This is an appeal preferred against the award of the claims Tribunal Muvattupuzha in O.P.(MV).673/04 and the writ petition is filed against the order of the same tribunal in O.P.(MV). 550/04. The petitioner in both these cases were traveling in an autorkshaw and they sustained injuries when there was collision between the autorikshaw and the motor bike. The Tribunal found the claimant in O.P.(MV).673/04 was entitled to a compensation of Rs.68,500/- and the claimant in the other case entitled to Rs.3,500/-. The Tribunal directed the 5th respondent to pay the amount. Aggrieved by the said decision the 5th respondent has come up in appeal and also filed the writ petition challenging the correctness of the award in OP(MV).550/04. 2. Heard the counsel. 3. The accident had taken place on 20.12.2003. The claimants were traveling in an autorikshaw bearing registration No.KL.7B 6573 . According to them a motor cycle was also coming from the opposite direction and there was a collision MACA.2354/09 & WPC.4035/10 2 between the two resulting in injuries to them. The case, to start with was registered against the rider of the bike. But ultimately, the police charged against the auto driver. The Tribunal relied upon the extracts in the wound certificate and held that it is recited therein that the bike had came through wrong side and hit on the autorikshaw. It has also to be remembered when this question was put to the maker of the statement it was deposed by PW1 that he had stated so to the police as told by the auto driver. Therefore the knowledge which PW1 and PW2 had about the statement is on account of the information supplied to them by the auto driver. The police had charge sheeted the auto driver The police prepared the scene mahazar. The road is having a width of 15.96 m at the place of accident. The autorikshaw was proceeding from east to west which means its correct side was southern side. Bike was proceeding from west to east and its correct side was northern side as per the scene mahazar. The accident has taken place 5.5m south to northern tar end. If this place of incident is correct this auto driver is absolutely on the wrong side. The Tribunal gets over this on the basis of the feeling that it is manipulated by the claimant of the motor cycle. Though the case diary he was produced it was not looked in holding that it is not proved. The part of the case diary MACA.2354/09 & WPC.4035/10 3 are Ext.B1(a) and B1(b) and it has been accepted. I find the matter requires reconsideration. Mere suspicion in the mind cannot be substituted as proof. But the doubt in th mind of the court can be cleared by directing the parties to produce evidence. Now there is only one sided evidence and nobody has been examined on the respondent side to prove the negligence of the motor cyclist. Therefore I feel the awards passed are liable to be set aside and I do so. 4. In the result, the appeals and the writ petition are allowed. Awards under challenge are set aside and the matter is remitted back to the tribunal with a direction to the parties to produce documentary as well as oral evidence in support of their respective contentions and then the matter be disposed of in accordance with law. If any necessary party is not appearing before the tribunal, claimants are directed to take out notice the them so that the matter can be disposed of in their presence. The parties are directed to appear before the tribunal on 17.3.2010. The amount in court deposit shall lie in court deposit till a final decision is taken in the matter. M.N. KRISHNAN, JUDGE sou.