IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 MACA.No. 697 of 2003() ---------------------- OPMV.253/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT IN MACA/PETITIONER IN OP(MV) ---------------------------------------------------- BABY AUGUSTY @ SEBASTIAN, MULACKAL HOUSE, POTHUMATTOM KARA, ARAKKULAM VILLAGE. BY ADV. SRI.A.P.SUBHASH RESPONDENT(S): RESPONDENTS IN O.P.(MV) -------------------------------------- 1. JOSEPH S/O. CHACKO, PULICKAL HOUSE, ASHOKA KAVALA BHAGAM, ARAKKULAM VILLAGE. 2. KRISHNANKUTTY @ THANKAN, S/O.RAMAN, PANACHIYIL HOUSE, KANNICKAL BHAGAM, MANAPPADY KARA, EDAPPALLY VILLAGE. 3. THE MANAGER, ORIENTAL INSURANCE COMPANY LTD., JYOTHI SUPER BAZAR, THODUPUZHA. ADV. SRI.VPK.PANICKER FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 697 of 2003 ------------------------------------------------------ Dated: MAY 19, 2010 JUDGMENT Basheer, J. This appeal is at the instance of the claimant whose application for compensation under sec.166 of the Motor Vehicles Act has been dismissed by the Tribunal holding that the alleged injuries sustained by him had not resulted from any accident involving a motor vehicle. 2. Shorn of unnecessary details, the case of the appellant may be briefly noticed. 3. The appellant contended that on January 26, 1999 at about 5.30 p.m. while he was standing on the side of Nadukani - Pothumattam Panchayath Road after his day's work, a lorry bearing registration No.KEE 5698 that was being driven by the 2nd respondent herein ran over his right foot because of the rash and negligent driving of the said vehicle by the 2nd respondent. He was immediately removed to Bishop Vayalil Medical Centre, Moolamattom and treated there as an inpatient. He suffered injuries on the ankle of his right leg apart from fracture of two toes. 4. We do not propose to refer to the injuries in detail in view of the order that we propose to pass in the appeal. Suffice it to say that the appellant suffered disability because of the injuries sustained by M.A.C.A. 697 of 2003 2 him and claimed a total sum of Rs.1,50,000/- as compensation. The vehicle which was owned by the 1st respondent at the time of the accident had a valid insurance coverage issued by the 3rd respondent. Therefore the appellant contended that the insurer was liable to pay compensation to him. Respondents 1 and 2 admitted the accident. However, respondent No.3 contended that such an accident never took place. 5. The appellant got himself examined as PW.1. A witness on his side was examined as PW.2, who corroborated the version given by PW.1 as regards the accident. Exts.A1 to A8 were also marked on the side of the appellant. The respondents did not adduce any oral or documentary evidence. 6. The Tribunal after considering the oral and documentary evidence on record came to the conclusion that the case set up by the appellant as regards the alleged accident cannot be believed. The Tribunal referred to the inconsistencies in the versions given by PWs.1 and 2 about the accident and also took note of the inherent improbability about such an accident. Yet again, we refrain from making any observation on the reasoning of the learned Judge to arrive at the above conclusion at this stage. 7. We have carefully perused the entire materials available on M.A.C.A. 697 of 2003 3 record. It is significant to note that the police had charge sheeted respondent No.2, the driver of the vehicle which was allegedly involved in the accident. It is pointed out by the learned counsel for the appellant that police registered the crime against the 2nd respondent on the basis of the requisition received from the hospital where the appellant was treated. 8. Sri Panicker, learned counsel for respondent No.3, submits that the nature of the injuries will by itself be sufficient to disbelieve the case of the appellant. He also refers to the delay on the part of the police in registering the crime. It is further pointed out by the learned counsel that Ext.A1 wound certificate will cut at the root of the case of the appellant. Yet again we do not propose to deal with the above contention at this stage. 9. Having carefully perused the entire materials available on record, we are of the view that the appellant deserves to get a further opportunity to adduce additional evidence in support of his case. We are persuaded to take this view since the Tribunal has proceeded at a tangent while deciding issue Nos.1 and 2. It seems that the Tribunal was carried away by the inconsistent versions given by PWs.1 and 2 which, in the given facts and circumstances of the case, particularly in view of the fact that respondents 1 and 2 had admitted the accident M.A.C.A. 697 of 2003 4 and the police had registered a case against respondent No.2 may not be of much significance. Moreover, the evidence of these two witnesses could not have been appreciated as though it was given in a criminal case. In any view of the matter, interests of justice demands that the appellant be given a further opportunity to prosecute his case. Therefore the award passed by the Tribunal is set aside. The case is remitted to the Tribunal for fresh consideration and disposal in accordance with law. It is made clear that the parties shall be entitled to adduce further evidence, if so advised. The parties shall appear before the Tribunal on June 30, 2010. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-