IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 MACA.No. 267 of 2004() ---------------------- OPMV.98/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANTS/PETITIONERS ------------------------------------ 1. SHINY SCARIA, AGED 34 YEARS, W/O. LATE SCARIA, THEKKUMKUDIYIL HOUSE, MANNOOR, KIZHILLAM. 2. ASHLY, D/O.LATE SCARIA, AGED 8 YEARS, REPRESENTED BY HER NATURAL GUARDIAN SHINY SCARIA, AGED 34 YEARS, W/O.LATE SCARIA, THEKKUMKUDIYIL HOUSE, MANNOOR, KIZHILLAM. 3. ANUPA, D/O.LATE SCARIA, AGED 7 YEARS, REPRESENTED BY HER NATURAL GUARDIAN SHINY SCARIA AGED 34 YEARS, W/O.LATE SCARIA, THEKKUMKUDIYIL HOUSE, MANNOOR, KIZHILLAM. 4. ALIYAMA, AGED 67 YEARS, W/O.PAULOSE, THEKKUMKUDIYIL HOUSE, MANNOOR, KOZHILLAM. 5. PAULOSE, AGED 69 YEARS, S/O.LATE MATHAI THEKKUMKUDIYIL HOUSE, MANNOOR, KIZHILLAM. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENTS: RESPONDENTS -------------------------------------------- 1. SUBAIRKUTTY, AGED 44 YEARS, S/O. HASAN RAWTHER, RESIDING AT KOLLOTH HOUSE, ANCHALKARA, PALLIVASAL VILLAGE, DEVIKULAM, IDUKKI. 2. RAJAN, S/O.MATHEW, PULICACHUNDAYIL HOUSE, AMAKANDOM, ANCHAL. 3. UNITED INDIA INSURANCE COMPANY, BRANCH OFFICE, PANKAJ BUILDING, M.S.A ROAD, MUNNAR. 4. ABOOBACKER KUNJU, S/O.MUHAMMAD KOYA, AREEKAL HOUSE, AREEKODE.P.O., MALAPPURAM. ADV. SRI.T.KURIAKOSE PETER FOR R1 SRI.ABRAHAM P.GEORGE FOR R1 ADV. SRI.A.R.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/06/2009, THE COURT ON 26/06/2009 DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No. 267 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of June, 2009 JUDGMENT Joseph Francis, J. This appeal is filed by the petitioners in O.P.(M.V) No.98 of 2000 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. Respondents 1 to 4 are the respondents in that Original Petition. That is a petition filed under Section 166 of the Motor Vehicles Act. 2. The allegation is that on 7.9.1998 at about 10.30 in the night deceased Scaria @ Raju was riding a motor cycle bearing No.KL 7/N 3101 along Muvattupuzha - Kothamangalam road, which lies north to south direction. When he reached in front of the house of Kunjankudy Baby at Karukadam, a jeep bearing No.KL 10/B 7187 driven by the second respondent in a rash and negligent manner hit on the back of the motor cycle, as a result of M.A.C.A.No. 267 of 2004 2 which, Scaria fell down and sustained serious injuries and died on the spot. The accident was due to the rash and negligent driving of the second respondent, who was driving the jeep. The first petitioner is the wife, petitioners 2 and 3 are the minor children and petitioners 4 and 5 are the parents of the deceased Scaria. They claimed Rs. 5 lakhs as compensation. 3. The first respondent was the owner of the jeep and the third respondent was the insurer. Supplemental respondent No.4 was impleaded, in view of the written statement filed by the third respondent stating that the jeep was insured in the name of supplemental respondent No.4. Respondents 2 and 4 remained ex parte. The first respondent filed written statement contending that the jeep is not involved in the accident. The third respondent filed written statement admitting the policy of the jeep and contends that the insurance was in the name of supplemental respondent No.4 and that the jeep is not involved in the accident and the second respondent had no valid driving licence. M.A.C.A.No. 267 of 2004 3 4. Before the Claims Tribunal, PWs. 1 to 3 were examined and Exts.A1 to A9 and B1 were marked. The learned Claims Tribunal, on considering the evidence, dismissed the petition on finding that the petitioners failed to prove that the accident occurred due to the negligence of the second respondent in driving the jeep and the petitioners are directed to pay Rs.4,373/- towards court fee. Against that award the petitioners filed this appeal. 5. Heard the learned counsel for the appellants and the learned counsel for the contesting respondents. 6. The learned counsel for the appellants submitted that the Tribunal went wrong in appreciating the oral and documentary evidence in its correct perspective. Whereas, the learned counsel for the contesting respondents submitted that the Tribunal arrived at a correct conclusion appreciating the evidence on record. 7. It is now well settled position of law that while considering the claim petition, the Claims Tribunal is required to hold an enquiry and not to act as a criminal court so as to find whether the claimants M.A.C.A.No. 267 of 2004 4 have established the occurrence beyond any shadow of doubt. In the enquiry, if there is prima facie evidence of the occurrence, there is no reason to disbelieve such evidence. 8. The first petitioner was examined as PW1. She is not an eye witness to the accident. Ext.A1 is the copy of the F.I.R. in Crime No.326 of 1998 of Kothamangalam Police Station, which was registered in connection with the above accident. The F.I. statement in that case was given by a person, who was not an eye witness to the accident. Therefore, the F.I. statement will not give the correct picture of the accident. Ext.A2 is the copy of the charge sheet against the second respondent submitted before the J.F.C.M.-I, Muvattupuzha in connection with the accident. In the charge sheet the name of the second respondent is shown as the accused, who was driving the jeep at the time of the accident. In the witness list CWs. 2 to 6 are shown as eye witnesses to the accident, who were travelling in the jeep bearing No.KL 10/B 7187. M.A.C.A.No. 267 of 2004 5 9. PW3, Sharly is an eye witness to the occurrence, whose name is shown in the charge sheet as CW2. He swears that on 7.9.1998 at about 10.30 p.m. he was travelling in the jeep and when that jeep reached Karukadam the jeep hit behind the motor cycle, as a result of which, the rider of the motor cycle fell down on the road and sustained injuries. PW3 swears that the accident was due to the rash and negligent driving of the second respondent, who was driving the jeep. He deposed that the jeep driver and himself were arrested in connection with theft of pepper on 9.9.1998 and the jeep was taken in the police custody. Ext.A5 is the copy of the A.M.V.I.'s report showing that due to the accident the rear mudguard of the motor cycle was dented towards front. Since the second respondent is not examined, an adverse inference can be drawn against him. Since the testimony of PW3 is corroborated by police records, we are of the view that the accident was due to the rash and negligent driving of the second respondent, who was driving the jeep. Since the Tribunal has not assessed the compensation, the case has to be remanded to the M.A.C.A.No. 267 of 2004 6 Tribunal for the purpose of assessing the compensation payable to the petitioners. 10. Accordingly, this appeal is allowed in part and the award dismissing O.P.(M.V) No. 98 of 2000 on the file of the M.A.C.T., Muvattupuzha is set aside. The said petition is remanded to the M.A.C.T., Muvattupuzha for assessing the compensation payable to the petitioners. Sufficient opportunity must be given to both sides to adduce further evidence, if necessary. The parties are directed to appear before the M.A.C.T., Muvattupuzha on 12.8.2009. The parties are directed to suffer their respective cost in this appeal. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm