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 9TH MARCH 2011 / 18TH PHALGUNA 1932 MACA.No. 843 of 2005(B) ----------------------------------- [O.P.(MV).NO.1123/1997 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR] .................... APPELLANT/PETITIONER: ------------------------------------- JOSEPH VADAKKAN, AGED 50 YEARS, S/O.V.I.ITTOOP, VADAKKAN HOUSE, P.O.THUZHIYOOR, (VIA) KUNNAMKULAM. BY ADVS. SRI.ANIL S.RAJ, SMT.NITHYA.K, SMT.MANJUSHA MOHANDAS. RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. D.THANASINGH, GANESHAPURAM, 1ST STREET, K. PUDAR, MADURAI-625 007. 2. S.MUNIYANDI, S/O.SEENI THEVAR, KURUMBAPETTY GRAMAM, NILAKKOTTAI TALUK, DANDUKKAL DISTRICT, TAMIL NADU. 3. THE UNITED INDIA INSURANCE COMPANY LTD., REPRESENTED BY ITS DIVISIONAL MANAGER, COCHIN-16. R3 BY ADV. SRI.M.A.GEORGE. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 09/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. No. 843 of 2005 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 9th day of March, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.1123 of 1997 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. In this appeal he challenges the judgment and award of the Tribunal dated September 30, 2004 dismissing the O.P. filed by him claiming compensation for the loss caused to him on account of the injuries sustained by him in a motor accident. 2. The accident happened on March 28, 1997 at about 2.15 p.m. at Karukutty. The claimant was travelling in a Maruthi car bearing registration No.KL-10C-4669 along Chalakkudy – Angamaly road. At that time a mini lorry bearing registration No.TN-598-5650 came at a high speed and collided head on with the car in which the claimant was travelling. He sustained serious injuries. He filed the O.P. before the Tribunal under section 166 of the Motor Vehicles MACA 843/2005 2 Act claiming a compensation of Rs.1,10,000/-. 3. Respondents 1 and 2, owner and driver of the offending mini lorry, remained absent before the Tribunal. The third respondent, the insurer of the offending mini lorry, filed a written statement admitting the policy but attributed negligence to the driver of the car. 4. This O.P. was jointly tried along with another O.P. filed by another injured person and a common award was passed. PWs.1 to 4 were examined and Exts.A1 to A17 series were marked on the side of the claimant. RW1 was examined and Exts.B1 to B3 were marked on the side of the contesting third respondent. Ext.X1 was marked as court exhibit. On an appreciation of the evidence, the Tribunal found that the accident occurred due to negligence of the driver of the car and dismissed the O.P. The claimant has come up in appeal challenging the said finding of the Tribunal. 5. Heard the learned counsel for the appellant/claimant and learned counsel for the third MACA 843/2005 3 respondent/Insurance Company. 6. The following points arise for consideration:- 1) Whether the finding of the Tribunal that the accident occurred due to negligence on the part of the driver of the car involved in the accident can be sustained? 2) Whether the claimant is entitled to any compensation from the respondents? 7. The Tribunal came to the conclusion that the accident occurred due to negligence of the driver of the car mainly on the ground that in Ext.B1 copy of the First Information Statement in the criminal case and Ext.B2 scene mahazar it was stated that while the second respondent was overtaking another bus, the accident happened and that the car was on the wrong side of the road. For several reasons we find that the above finding of the Tribunal cannot be sustained. 7. PW1 the claimant as well as PW2 claimant in other O.P. testified in a convincing manner before the Tribunal regarding the negligence of the driver of the mini lorry. No contra evidence was adduced by the contesting third MACA 843/2005 4 respondent to show that there was any negligence on the part of the driver of the car. Admittedly the police has charged the case against the driver of the mini lorry. For all these reasons, we set aside the finding of the Tribunal that the accident occurred due to negligence of the driver of the car and hold that the accident occurred solely due to negligence of the driver of the offending mini lorry. That being so, the claimant is entitled to compensation for the loss sustained by him on account of the injuries sustained in the accident from respondents 1 to 3, owner, driver and insurer of the offending mini lorry. 8. The Tribunal has not assessed the compensation due to the claimant. Therefore the matter is remanded to the Tribunal for assessing the compensation due to the claimant. 9. In the result, the appeal is allowed. The impugned judgment and award of the Tribunal are set aside. The matter is remanded to the Tribunal for assessing compensation due to the claimant. The parties shall appear MACA 843/2005 5 before the Tribunal on 30-4-2011. The Tribunal shall dispose of the case as early as possible but not later than six month from the date of receipt of a copy of this judgment. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn