IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 MACA.No. 285 of 2003() ------------------------------------ OPMV.248/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): APPELLANT/3RD RESPONDENT ---------------------------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., REP.BY ITS ASST.ADMINISTRATIVE OFFICER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY ADV. SRI.P.R.RAMACHANDRA MENON RESPONDENT(S): CLAIMANTS 1 TO 4 & RESP.1 & 2 --------------------------------------------------------------------- 1. SYAMALAKUMARI W/O SREEDHARAN NAIR, AJITHA BHAVAN, PAVACHAKUZHY, PERUMKAVU P.O., VILAPPIL, NEYYATTINKARA. 2. AJITHAKUMARI, D/O. SREEDHARAN NAIR, DO. DO. 3. ANIKUTTAN S/O. SREEDHARAN NAIR, DO. DO. 4. MANJU D/O. SREEDHARAN NAIR, DO. DO. 5. GOPAKUMAR, AJAYA BHAVAN, MULAYILKONAM, MITHIRMALA P.O. 6. SANTHOSHKUMAR, PUTHUVEETTU MELE PUTHAN VEEDU, KUDIVILAKATHA, VILAVOORKARA. ADV. SRI.G.APPAN FOR R1 TO 4 SMT.LIGEY ANTONY FOR R1 TO R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = M.A.C.A. No.285 of 2003 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of December, 2008 J U D G M E N T ---------------------- Thomas P. Joseph, J. The award passed by Motor Accidents Claims Tribunal, Neyyattinkara (for short, ”the Tribunal”) is under challenge in this appeal at the instance of the third respondent, insurer of the vehicle allegedly involved in the accident. 2. Heard learned counsel for the appellant and contesting respondents. 3. Application concerned the death of a 50 year old electrician allegedly involving the Autorikshaw driven by the 6th respondent (second respondent in the application). Respondents 1 to 4, legal representatives of the deceased alleged that on 7.12.1997 while the deceased was walking towards his house and reached Eravila junction, Autorikshaw bearing Reg. No.KL-01/E-4525 driven by the sixth respondent came from behind and hit him. He was taken to the General Hospital, Thiruvananthapuram and then referred to the Medical College Hospital but he succumbed to the injuries on 15.12.1997. Respondents 1 to 4 claimed compensation to the tune of M.F.A. No.285 of 2003 -: 2 :- Rs.3,00,000/-. Appellant contended that death was not due to any accident involving the said Autorikshaw. According to the appellant, the deceased was found lying on the road on the night of 7.12.1997 and was taken to the hospital the next day. Before the Tribunal, respondents 1 to 4 examined P.W.2 who claimed to be a witness to the accident. He stated that the incident occurred as pleaded by respondents 1 to 4 and attributed negligence on the sixth respondent. Respondents 1 to 4 also produced Exhibits A1 to A8. Exhibit A1 is the copy of the FIR and Exhibit A7, copy of the charge-sheet in Crime No.371 of 1997 of Malayinkeezhu police station. Exhibit A2 is the copy of the scene of occurrence. Exhibit A4 is the copy of vehicle mahazar. Exhibit A5 is the report of the Motor Vehicles Inspector on the autorikshaw allegedly involved in the accident. Based on that evidence Tribunal found that the accident arose out of the use of the Autorikshaw driven by the sixth respondent in a rash and negligent manner. Learned counsel for the appellant contended that the finding is not correct and that the same was arrived without giving reasonable opportunity to the appellant to adduce contra evidence. 4. Going by the documents produced by respondents 1 to 4, though the alleged accident occurred on 7.12.1997, deceased was M.F.A. No.285 of 2003 -: 3 :- admitted in the hospital only on 8.12.1997 and he succumbed to the injuries on 15.12.1997. Appellant had filed a list of seven witnesses to be examined on its side and steps were also taken for examination of those witnesses. That was not permitted by the Tribunal. Learned counsel prayed for an opportunity to adduce evidence. 5. In the facts and circumstances of this case and considering the nature of the contentions raised by the appellant, we are inclined to think that the appellant ought to have been given an opportunity to adduce evidence. In this case where accident itself is disputed and the insurance company which ultimately is to shoulder the liability wanted to adduce evidence in support of its contentions and some steps were also taken in that regard, we are inclined to think that opportunity should be given to the appellant to adduce evidence since otherwise it would amount to denial of justice. Hence we are persuaded to accept the request made by the counsel for the appellant. Resultantly, this appeal is allowed. The impugned award is set aside and the case is remitted to the Tribunal for fresh disposal after giving both sides sufficient opportunity to adduce evidence in support M.F.A. No.285 of 2003 -: 4 :- of their respective contentions. Parties shall appear before the Motor Accidents Claims Tribunal, Neyyattinkara on 10.2.2009. J.B. KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. vsv