IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 MACA.No. 144 of 2008() ---------------------- OPMV.446/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S):( PETITIONER IN OP(MV):446/03) ----------------------- M.A.SURESH, AGED 45 YEARS, S/O. APPUKUTTAN, DOOR NO.7, ACHUS APARTMENT, S.P.W.ROAD, THAIKKATTUKARA, ALUVA. BY ADV. SRI.V.K.GOPALAKRISHNA PILLAI SRI.GOPAKUMAR.G. RESPONDENT(S): (RESPONDENTS IN OP(MV): 446/03) ---------------------------- 1. SHERIEF C.M., THAKARAKKATTIL HOUSE, THAIKKATTUKARA, ALUVA-683 106. 2. ABDUL JABBAR, S/O. MUHAMMED, THAKARAKKATTIL, CHENNAMPILLY VEEDU, THAIKKATTUKARA, ALUVA-683 106. 3. THE NATIONAL INSURANCE CO. LTD., P.B.NO.24, MULLAPPILLY BUILDING, A.M.ROAD, PERUMBAVOOR, PIN-683 542. ADV. SRI.MATHEWS JACOB (SR.) FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== MACA No.144 OF 2008 ===================== Dated this the 22nd day of October 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Perumbavoor in O.P.(MV)No.446 of 2003. It is the case of the claimant that while he was travelling as a passenger in an auto rickshaw due to the negligent driving of the auto rickshaw by its driver, the auto capsized resulting in injuries to him. The insurance company did not admit the accident and pleaded collusion between respondents 1 and 2 and the claimant. The Tribunal, on analysis of Exts.A1 to A7 held that the claimant is not entitled to any compensation and dismissed the case. It is against that decision, the present appeal is preferred. 2. Heard both sides. The definite contention of the counsel for the appellant is that the accident took place while he was travelling as a passenger in the auto rickshaw which according to him, got involved in the accident. The insurance company would contend that the said auto rickshaw was not involved in the accident. The Tribunal holds that there is lacuna and there is no evidence and ultimately arrives at a decision that the MACA 144 of 2008 -:2:- claimant was riding the auto which unfortunately is not the case of any of the parties. It is true that the alleged accident took place on 31.10.2002 at 10.30 p.m. The claimant was hospitalized on 1.11.2002 and the case was registered only after a week and therefore the Tribunal viewed everything with suspicion. There is a duty cast upon the claimant to enter the box and remove the suspicion of the Tribunal and convince about the factum of accident. Unfortunately, it has not been done . But, the police after due investigation has filed a charge sheet against the driver of the auto and it remains in the record which has not been challenged by any of the parties. So a piece of document prepared by an investigating agency is there before the court. Except mere suggestions here and there, nothing else is there to ignore the same. It is a settled principle of law that one cannot arrive at a decision on the basis of mere conjectures and surmises. Therefore I feel the matter requires reconsideration. I further feel that the claimant should have been more prudent by getting himself examined, so as to remove the suspicion in the mind of the court. I am inclined to grant an opportunity. Therefore the award under challenge is set aside and the matter is remitted back to the Tribunal for fresh consideration and the claimant is permitted to produce both oral and documentary evidence in support of his contentions and the insurance company is also permitted to do the same. MACA 144 of 2008 -:3:- The Tribunal shall thereafter dispose of the matter in accordance with law. Parties are directed to appear before the Tribunal on 10.12.2008. MACA is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-