IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH JULY 2008 / 18TH ASHADHA 1930 MACA.No. 1545 of 2004() ----------------------- OPMV.911/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA .................... : APPELLANT/PETITIONER: ---------------------------- 1. SAJITH, S/O. NARAYANAN, VELAKKAT HOUSE, KAZHIMBRAM P.O., VALAPPAD VILLAGE. *2. MEENA NARAYANAN W/O LATE NARAYANAN, AGED 58 YEARS, VELAKKAT HOUSE, KAZHIMBRAM DESOM, VALAPPAD VILLAGE. BY ADV. SRI.T.N.MANOJ * (ADDL . APPELLANT IS IMPLEDED AS THE SOLE LEGAL HEIR OF THE DECEASED APPELLANT VIDE ORDER DTD. 24- 11-2004 ON IA NO.3556/2004.) RESPONDENTS: RESPONDENTS: ------------------------------------ 1. M/S. JALEEL & CO., EDATHIRITHY, KATTOOR VIA. 2. SALEEL, S/O. ABDUL JALEEL, KUNNATHUPADIKKAL HOUSE, KUTTAMANGALAM DESOM, EDATHIRITHY VILLAGE. BY ADV. SRI.JIJO PAUL FOR R1 & R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J ===================== MACA No.1545 OF 2004 ===================== Dated this the 9th day of July 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Irinjalakkuda in O.P.(MV)No.911 of 1994. The claimant sustained injuries in a road accident. It is his case that while he was driving his motor cycle KBR 1885, a car bearing Regn.No.KL/8 B-6464 came from the opposite direction and there was a collision between the two vehicles, which resulted in injuries to him. It is seen that the power of attorney holder of the owner of the car was examined as a witness and necessarily a person, who had not seen the accident he will not be competent to prove the factum of negligence in this case. 2. So far as the claimant in O.P.No.911 of 1994 is concerned, he has filed a proof of affidavit and another proof of affidavit of an eye witness is given. There had been no cross examination. The Tribunal proceeded on the basis of the scene mahazar and held that the accident had taken place on the wrong side of the bike. It also concluded that the driver of the car was also coming at a high speed and therefore both the drivers have contributed MACA 1545/2004 -:2:- 100% negligence to the accident. The said finding cannot be sustained inlaw. Therefore the award requires interference. 3. Learned counsel for the respondents before me contends that it is not discernible that whether an opportunity was given for cross examination of the claimant and his witness. A reading of the award may tend to show that they were not cross examined. Whether they were available or not is not seen. I feel an opportunity can be given to cross examine those persons and I am informed that the claimant is dead and only cross examination of the other witness may be possible in this case. If there are additional materials available and if the parties want to adduce additional evidence in support of their contentions regarding negligence as well as injuries that also may be considered and the Tribunal may dispose of the matter in accordance with law. Therefore the award under challenge is set aside and the matter is remitted back to the Tribunal for fresh consideration, after affording equal opportunity to both sides. Parties are directed to appear before the Tribunal on 18.8.2008. M.N.KRISHNAN, JUDGE Cdp/- MACA 1545/2004 -:3:-