IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 MACA.No. 1412 of 2010() ----------------------------------- OPMV.12/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... APPELLANT(S): PETITIONER ------------------------------------------ WILSON, S/O.ANTHONY, PULLAN HOUSE, VAZHIYAMBALAM, KODAKARA, THRISSUR DISTRICT. BY ADV. SRI.V.BINOY RAM RESPONDENT(S): RESPONDENTS 1,2,4-7: ------------------------------------------------------------ 1. ALIAS K.VARGHESE, MANAGING DIRECTOR, M/S.ADAM BUILDERS & DEVELOPERS PVT. LTD., F8, PAUL ARCADE, ANGAMALY.P.O.PIN-683 572. 2. FEBIN, S/O.RAPPAI, MALIYEKKAL HOUSE, AZHAKAM MONNAAMPARAMBU, KARUKUTTY, ERNAKULAM DISTRICT, KARUKUTTY.P.O,PIN-683576. 3. THE MANAGER, UNITED INIDA INSURANCE CO. LTD., K.A.P. COMMERCIAL CENTRE, R.S.ROAD, ALUVA, PIN-683101. 4. JOHNSON, S/O.POULOSE, KALLIATHPARAMBIL HOUSE,P.O. PERAMBRA, PERAMBRA, THRISSUR-680689. 5. THILAKAN, S/O.UNNI, VALIAPURAKKAL HOUSE,P.O. KODAKARA, KODAKARA,THRISSUR DISTRICT. PIN-680684. 6. UNITED INDIA INSURANCE CO. LTD., TANA, IRINJALAKUDA.P.O, PIN-680121. R3 & R6 BY ADV.SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU SRI.B.PREMNATH (E) R4 & R5 BY ADV. SRI.K.N.PADMAKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2010, ALONG WITH MACA NO.1499 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NOs. 1412 & 1499 OF 2010 = = = = = = = = = = = = = = = Dated this the 21st day of December, 2010. J U D G M E N T Both these appeals are preferred against the award of the Motor Accidents Claims Tribunal, Irinjalakuda in O.P.(MV)12/05. M.A.C.A. 1412/10 is filed by the claimant and the other appeal is filed by respondents 5 and 6 in the claim petition. The Tribunal on a consideration of the materials found the rider of the bike and the driver of the car are equally negligent for the accident and therefore apportioned the negligence at 50% each. Thereafter the Tribunal went on to hold that since respondents 5 and 6 had not contested regarding the liability of the insurance company, the insurance company cannot be saddled with the liability and therefore ordered respondents 1, 2 and 4 to pay 50% and respondents 5 and 6 to pay 50%. The 7th respondent in claim petition namely United India M.A.C.As. 1412 & 1499 OF 2010 -:2:- Insurance Company was exonerated from the liability. It is challenging the quantum as well as the exoneration of the liability of the insurance company as well as on the question of negligence the appeals are preferred. 2. I may like to state that in these types of cases unless some evidence is given to connect the document it is very dangerous to arrive at a decision on negligence. It is to be remembered that the driver of the car alone was charge sheeted. But without any evidence the Tribunal refers to the scene mahazar and jumps to the conclusion that the rider of the bike had reached half portion of the road and therefore he had also contributed to the accident. The question of negligence cannot be decided on the basis of conjectures and surmises. Parties have to furnish evidence or the Court has to direct them to furnish evidence. The practice of non examination of witnesses in cases adopted by the Tribunal has really caused M.A.C.As. 1412 & 1499 OF 2010 -:3:- injustice to the parties. Therefore the question of negligence requires reconsideration. 3. Similarly even if the rider of the bike is found negligent the claimant being a pillion rider if the vehicle is covered by a package policy the insurance company is bound to indemnify the owner. The Tribunal jumps to the conclusion that since R5 and R6 in the claim petition does not state that the insurance company is liable, the non-appearance of insurance company need not be taken as a serious matter. I find that the said approach is also totally erroneous. Since the matter has to go back for these two purposes I feel the grievance of the claimant that the compensation awarded is not adequate also can be reconsidered. 4. In the result both these appeals are allowed and the award passed by the Tribunal is set aside and the matter is remitted back to the Tribunal for the following. M.A.C.As. 1412 & 1499 OF 2010 -:4:- (1)To permit the parties to adduce evidence to decide the question of negligence. (2)To find out whether the vehicle, that is the bike, is covered by an Act only policy or a package policy. (3)The Tribunal to reconsider the adequacy of the compensation. I make it clear that all the parties are permitted to adduce both documentary as well as oral evidence in support of their respective contentions in accordance with law. Parties are directed to appear before the Tribunal on 28.1.2011. M.N. KRISHNAN, JUDGE. ul/-