IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 15TH DECEMBER 2008 / 24TH AGRAHAYANA 1930 MACA.No. 330 of 2006(A) ----------------------------------- OP.(MV).NO.664/1999 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT/PETITIONER: ------------------------------------- MANOJ MATHEW, S/O.M.M.MATHEW, MUTHUKADKALAM, CHUNDAKKAD, KAVASSERY, ALATHUR TALUK. BY ADV. SRI.A.R.GANGADAS. RESPONDENTS/ RESPONDENTS: ----------------------------------------------- 1. RAMAKRISHNA GUPTHAN, S/O.SUNDRA GUPTHAN, VALAYATHIL VEEDU, CHETHALLUR P.O., THACHANNATHUKARA PANCHAYATH, MANNARKKAT TALUK, PALAKKAD DISTRICT. 2. SIVASANKARAN, S/O.RAMAKRISHNA GUPTHAN, VALAYATHIL HOUSE, CHETHALLUR P.O., THACHANNATHUKARA PANCHAYATH, MANNARKKAT TALUK, PALAKKAD DISTRICT. 3. THE ORIENTAL INSURANCE CO LTD., SHOBA T.S.M.COMPLEX, II FLOOR, V.H. ROAD, PALAKKAD. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.N.KRISHNAN, J ===================== MACA No.330 OF 2006 ===================== Dated this the 15th day of December 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Palakkad in O.P.(MV)No.664 of 1999. It relates to damages to a motor cycle bearing Regn.No.KL-9B/8612 involved in the road accident. There was a collision between the motor cycle as well as a tractor and the Tribunal found that the accident occurred due to the composite negligence on the part of the drivers of the tractor and that of the motor cycle while discussing the said issue in paragraph 17 of the award. Therefore the owner of the motor cycle even if he succeeds may not be entitled to get full damages for the reason that his driver has also contributed to the accident. The Tribunal referred to two documents: one, an estimate and the other spare part bills and really did not go deep into the matter for the reason that as the vehicle owned by the claimant was insured for covering the own damage risk also. It assumed that the claimant would have received compensation from his insurance company. Learned counsel for the appellant submits before me that he has not received any MACA 330/2006 -:2:- compensation from his insurance company and therefore the Tribunal was unjustified in dismissing the application. I feel that the Tribunal's approach is totally not correct especially in the light of the fact that the insurance company of the tractor as well as the motor cycle are there in the party array and when a claim petition is filed with notice to both the insurance companies it is not proper to jump to a conclusion even without pleading. Therefore the order requires to be corrected by setting it aside and therefore I set aside the award passed in O.P.(MV)No.664 of 1999 and remit the case back to the Tribunal for fresh consideration. I also direct the appellant to file an affidavit before the Tribunal with notice to the insurance company of his insurer so that the question of any claim of own damages can be verified. The claimant also be permitted to adduce evidence and the matter be disposed of in accordance with law. Parties are directed to appear before the Tribunal on 20.1.2009. MACA is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-