IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 MACA.No. 677 of 2004() ---------------------------------- OPMV.2359/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT/PETITIONER -------------------------------------- PAUL OOKEN, S/O. OUSEPH, OOKEN HOUSE, NADATHARA DESOM, THRISSUR. BY ADV. SRI.JOSE THETTAYIL RESPONDENT/RESPONDENTS --------------------------------------------- 1. P.P. DAVIS, PUTHUKADAN HOUSE, MARKET ROAD, IRINJALAKUDA. 2. TONY, S/O. JOSE, PAYYAPPILLY HOUSE, PORATHISSERY VILLAGE, IRINJALAKUDA, THRISSUR. 3. M/S. NATIONAL INSURANCE CO.LTD., IRINJALAKUDA. R3 BY ADV. SRI.LAL GEORGE. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 677 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 7th day of June, 2010 JUDGMENT Basheer, J. The appellant, who allegedly sustained some injuries in a motor accident, filed a claim petition before the Motor Accidents Claims Tribunal, Thrissur under section 166 of the Motor Vehicles Act. The Tribunal, after noticing the injuries sustained by the appellant, made an assessment of the quantum of compensation for the loss caused to him. However, the claim petition was dismissed by the Tribunal, holding that the appellant had failed to prove that he suffered injuries in a motor accident, as alleged. The said award is under challenge in this appeal. 2. The case of the appellant before the Tribunal was that he was knocked down by a bus while he was riding his scooter on the Mannuthy Bye-pass road at about 4 p.m. on November 30, 1997. According to the appellant, the bus, which belonged to respondent No.1, was being driven by MACA 677/2004 2 respondent No.2 in a rash and negligent manner and at an excessive speed. The Tribunal, after considering the oral testimony of PWs.1 to 3 and the documents produced by the appellant as Exts.A1 to A9, came to the conclusion that there was no satisfactory or convincing evidence to accept the case of the appellant. 3. The Tribunal noticed that Ext.A1 FIR was registered by the police only on December 9, 2007, though the alleged accident occurred on November 30, 1997. Though one Benni had taken the appellant to the hospital, as revealed form Ext.A4 wound certificate, he was not examined. It was also found by the Tribunal that the wound certificate clearly indicated that there was strong smell of alcohol at the time when the appellant was examined by the doctor. The appellant, when he was examined as PW1 in the Tribunal, admitted that he had consumed some wine. In the above circumstances, the Tribunal took the view that the case of the appellant, as regards the alleged involvement of the bus could not be accepted. Further the police did not MACA 677/2004 3 find any damage of the bus, when it was examined later. 4. However, learned counsel for the appellant points out that the delay in lodging the F.I.R. occurred only because the appellant was unconscious at the time when he was removed to the hospital. The police came to the hospital only on December 9, 1997 and it was at that time PW2, the wife of the appellant, gave the First Information Statement. Being a rustic woman, she was not aware of the legal implications. It is further contended by the learned counsel that the Tribunal apparently got carried away by the fact that there was smell of alcohol at the time when the appellant was admitted in the hospital. 5. Heavy reliance is placed by the learned counsel on the fact that respondents 1 and 2 did not choose to contest the case. He submits that if the case of the Insurance Company is to be believed, the driver of the bus ought to have come before the court and denied the accident. Moreover, the police had admittedly registered a crime against the driver of the bus and he was prosecuted, as MACA 677/2004 4 revealed from Ext.A5 final report. 6. We have perused the lower court records, which were called for by us. We have heard learned counsel for the Insurance Company also. 7. Having regard to the entire facts and circumstances of the case, we are of the view that the appellant has to be given an opportunity, of course on appropriate terms, to adduce further evidence to substantiate his contention that he suffered injuries in a road traffic accident ,as alleged. The Tribunal shall afford such an opportunity to the appellant and the respondents, if they so desire. However, we make it clear that the quantum assessed by the Tribunal shall not be disturbed, especially in the absence of any challenge to the same. Learned counsel for the appellant has not advanced any argument before us against the quantum of compensation fixed by the Tribunal. 8. Therefore, the award is set aside to the extent it holds that the appellant had not been involved in a road MACA 677/2004 5 traffic accident on condition that the appellant pays a sum of Rs.5,000/- as cost to the Insurance Company. The Tribunal shall reconsider the said issue and pass an award afresh. The cost shall be deposited by the appellant before the Tribunal within one month from today. On such deposit being made, the Tribunal shall release the same to the Insurance Company. 9. The Tribunal shall dispose of the case as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. The Registry shall send back the Lower Court records forthwith. The parties shall appear before the Tribunal on July 9, 2010. A.K.BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.