IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 MACA.No. 1209 of 2008(D) ---------------------------------- OPMV.1066/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, OTTAPALAM. .................... APPELLANT(S): /PETITIONER ---------------------------------- FATHIMA, W/O.AHAMADUNNI, RESIDING AT AANTHURA VALAPPIL HOUSE, PALLIKKARA, AMAYIL, MALAPPURAM. BY ADV. SRI.V.CHITAMBARESH (SR.) ADV. SRI. T.C. SURESH MENON, ADV. SRI. P.S. APPU RESPONDENT(S): RESPONDENTS -------------------------- 1. T.NARAYANAN, S/O.KUMARAN, RESIDING AT THALAKKAT HOUSE, EDAPPAL, MALAPPURAM DISTRICT. 2. RAJENDRAN, S/O.KUMARAN, RESIDING AT KORATTIYIL HOUSE, KARUTHIRUTHI, MALAPPURAM DISTRICT. 3. THE NEW INDIA ASSURANCE COMPANY LIMITED, BRANCH OFFICE, K.H.BUILDINGS, THIRUR, MALAPPURAM DISTRICT. ADV. SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/12/2008, ALONG WITH MACA 1239/08, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J ===================== MACA Nos.1209 & 1239 OF 2008 ===================== Dated this the 2nd day of December 2008 JUDGMENT These appeals are preferred against the award of the Motor Accidents Claims Tribunal, Ottappalam in O.P.(MV)Nos.1066 & 1068 of 2005. The claimants were passengers in an autorickshaw which met with an accident when it collided with a bus resulting in sustainment of injuries to them. Claimants did not adduce any oral evidence before the Tribunal and the Tribunal on the basis of the scene mahazar found the autorickshaw driver negligent and dismissed the cases. It is against that decision, the present appeals are preferred by the claimants. 2. Heard the counsel for the appellants as well as the counsel for the insurance company. Learned counsel for the appellants would contend that the Tribunal was not fully justified in relying upon the recitals in the scene mahazar alone to arrive at a decision that the autorickshaw driver was totally negligent. He would also contend that on the basis of the scene mahazar and other evidence available, the police has charge sheeted the driver of the bus and that has not been considered at all by the Tribunal. A MACA 1209 & 1239/2008 -:2:- perusal of the scene mahazar prima facie would indicate that there is negligence on the part of the autorickshaw driver. The road was having a width of 3.70 metres. The accident had taken place 25 cms. east of the western tar end. The bus was proceeding from south to north and the autorickshaw from the opposite direction. Prima facie the place of accident would indicate that the autorickshaw has transgressed to the wrong side at the time of accident. It has always to be remembered that when an accident is about to take place, that too, on a curve of the road, normally there will be a tendency for the drivers of the vehicles to swerve the vehicles to avert the accident. Then the position of the vehicles immediately after the accident may not be a conclusive factor to find out how the accident took place. This can be explained by adducing evidence in the matter. Further, the claimants should not be deprived of any compensation as they have not contributed anything to the accident and they can also be given an opportunity to implead the driver, owner and the insurance company of the autorickshaw so that the matter can be decided with all on record. Therefore the award under challenge is set aside and the matter is remitted back to the Tribunal with a direction to permit the claimants to amend the application by impleadment, if they choose to do so and also to adduce both documentary as well as oral evidence in support of their respective contentions and then MACA 1209 & 1239/2008 -:3:- dispose of the matter in accordance with law. Parties are directed to appear before the Tribunal on 5.1.2009. MACAs are disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-