IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 14TH JULY 2009 / 23RD ASHADHA 1931 MACA.No. 1637 of 2006(C) ----------------------- OPMV.1391/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- BINU K.R. @ BINU RAGHAVAN, S/O. RAGHAVAN, KAVUMKATTAYIL HOUSE, MULAKULAM NORTH P.O., PIRAVAM. BY ADV. SRI.T.K.KOSHY RESPONDENT(S): --------------- 1. DIPU JACOB, S/O. JACOB, PARASSERY HOUSE, MULAKKULAM NORTH P.O., PIRAVOM. 2. THE ORIENTAL INSURANCE CO.LTD., P.B.NO.49, PATTAMANA BUILDINGS, R.S. ROAD, PUMP JN., ALWAYE. ADV. SRI.A.R.GEORGE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON 14/07/2009 DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. NO: 1637 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th Day of July, 2009. JUDGMENT Joseph Francis J. This appeal is filed by the petitioner in OP(MV) No: 1391/02 on the file of MACT, Muvattupuzha. Respondents 1 and 2 are respondents 1 and 2 in that OP, which was filed under Section 166 of Motor Vehicles Act. The allegation is that on 16.8.02 at about 11 ' O clock in the night, the petitioner was travelling in a motor cycle bearing No:KL-7AH/5122 as a pillion rider, driven by 1st respondent through the Thalayolaparambu- Peruva road and when they reached near Mulakulam Panchayath office, a jeep came from opposite direction and on seeing the jeep, first respondent suddenly turned the motor cycle to the right side, as a result the motor cycle toppled down causing serious injuries to the petitioner. The accident was due to negligence of 1st respondent, who was M.A.C.A. NO: 1637 OF 2006 : 2 : driving the motor cycle. First respondent is the owner of the motor cycle and second respondent is the insurer. The petitioner claimed Rs.2,00,000/- as compensation. 2. In the Claims Tribunal the first respondent remained exparte. Second respondent filed written statement admitting the policy of the motor cycle and contends that the petitioner himself was riding the motor cycle and it hit against the jeep and that the compensation claimed is excessive. 3. In the Claims Tribunal, PW1 and PW2 were examined and Exts.A1 to A10 and B1 were marked. The Claims Tribunal on considering the evidence, found that the petitioner failed to prove that the accident was due to the negligence of 1st respondent and therefore, the OP(MV) was dismissed. Against that award the petitioner filed this appeal. 4. Heard the learned counsel for the appellant and learned counsel for the second respondent. M.A.C.A. NO: 1637 OF 2006 : 3 : 5. It is well settled position of law that while considering the claim application, the Tribunal is required to hold an enquiry and it is not to act as criminal court so as to find whether the claimants have established occurance beyond any shadow of doubt. In the enquiry, if there is prima facie evidence of occurance, there is no reason to disbelieve such evidence. 6. The petitioner was examined as PW1. PW1 swears that on 16.8.02, at about 11 'O clock in night, he was travelling as a pillion rider in motor cycle bearing No:KL-7AH/5122 driven by 1st respondent, Deepu and when they reached near Mulakulam Panchayath office, a jeep came from opposite direction and then the first respondent suddenly turned the motor cycle towards right side and motor cycle fell into a pit and overturned as a result of which the petitioner sustained injuries. PW1 deposes that the accident was due to the negligence of 1st respondent who was driving the motor cycle. PW1 deposes that at first he was taken to M.A.C.A. NO: 1637 OF 2006 : 4 : Thalayolaparambu Sanjeevani hospital alongwith first respondent and from there he was taken to Matha Hospital, Thellakom. PW2 is an eye witness to the accident. PW2 deposes that the accident was due to the negligence of 1st respondent who was driving the motor cycle. Ext. A10 is the Medical certificate issued from Sanjeevani Hospital stating that on 16.8.02 the first respondent was treated in the hospital due to the injuries sustained by him while he was riding a motor cycle on 16.8.02 at about 11 p.m. Ext A1 is the copy of FIR in the Criminal Case registered against 1st respondent with regard to the accident. Ext. A2 is the copy of F.I Statement given by PW1 before the police. Ext. A3 is the copy of the scene mahazar and Ext.A4 is the copy of the A.M.V.I. report with regard to the motor cycle involved in the accident. Ext.A5 is the copy of the charge sheet against first respondent with the regard to the accident. Ext.A6 is the copy of Accident Register cum wound certificate issued from Matha Hospital, Thellakom showing that M.A.C.A. NO: 1637 OF 2006 : 5 : the petitioner was admitted in the hospital on 17.8.02 at 12.15 am due to the road accident and was discharged on 23.8.02. In Ext.A6, name of the person who brought the petitioner to that hospital is not shown. PW2 swears that the petitioner was taken to that hospital by the father of the first respondent. In Ext.A6 the alleged cause is shown as “Road traffic accident by hitting the jeep while travelling in a two wheeler”. PW2 deposes that alleged cause shown in Ext.A6 might have given by the father of the first respondent in order to save his son from criminal case. That explanation, appears to be probable as the petitioner has not given any statement with regard to the accident to the Doctor. The first respondent has not gone to the witness box to speak about the accident. Therefore an adverse inference can be drawn against him. Since the testimony of PW1is corroborated by PW2 and records, we are of the view that the accident occurred due to the negligence of first respondent, who was driving the motor cycle. M.A.C.A. NO: 1637 OF 2006 : 6 : Since the Claims Tribunal has not assessed the compensation payable to the petitioner, we are of the view that this case has to be remanded back to MACT, Muvattupuzha for the purpose of assessing the compensation. Accordingly, this appeal is allowed and the award in OP (MV) 1391/2002 on the file of MACT Muvattupuzha is set aside and that case is remanded back to the Claims Tribunal for the purpose of assessing the compensation payable to the petitioner. Sufficient opportunity must be given to both the parties to adduce further evidence, if necessary. Parties are directed to appear before the MACT, Muvattupuzha on 19.8.2009. Parties are directed to suffer their respective cost in this appeal. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/