IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 MACA.No. 1769 of 2007() ----------------------- OPMV.93/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANTS/PETITIONERS 2 AND 3 -------------------------------------------- 1. M.SUMMAYYA, AGED 35 YEARS, W/O LATE DR. A SALIM, AFTHAB APARTMENT, RAMANATTUKARA AMSOM AND DESOM, KOZHIKODE. 2. THAMMANNA SALIM, AGED 12 YEARS,(MINOR), D/O LATE DR. A.SALIM, REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN, M.SUMMAYYA, W/O LATE DR. A.SALIM. BY ADV. SRI.K.B.MOHAMEDKUTTY SRI.K.M.FIROZ RESPONDENT(S): RESPONDENTS 1 TO 3 --------------------------------- 1. K.SOBANA, W/O SASIDHARAN, KOZHAMBURATH HOUSE, MAKKADA, KOZHIKODE. 2. K.MANOJ KUMAR, S/O BHASKARA KURUP P.K., OMMALATHUR, KAMBIL MEETHAL HOUSE, NELLIKODE AMSOM, KOVOOR DESOM, KOZHIKODE. 3. NEW INDIA INSURANCE CO. LTD., BRANCH OFFICE, TRIPURI BUILDING, EAST NADAKKAVU, KOZHIKODE. ADV. SRI.VINOD SINGH CHERIYAN FOR R.1 SRI.R.SUDHISH FOR R.1 SRI.N.S.MOHAMMED USMAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1769 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of April, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, claimants 2 and 3 in O.P.(MV)No.93/1998 of Principal Motor Accidents Claims Tribunal, Kozhikode challenges the judgment and award of the Tribunal dated April 30, 2007 dismissing the petition filed by the claimants claiming compensation for the loss caused to them on account of the death of Dr.A.Salim in a motor accident. 2. The facts leading to this appeal in brief are these : Deceased Dr.Salim was a lecturer in Farook College, Kozhikode. On September 18, 1997 at about 7 p.m., deceased Dr.A.Salim was riding his motor cycle bearing Reg.No.KL-10-A-2014 from Kozhikode to Ramanattukara. At that time, a bus bearing Reg. No.KRD 7273 came from behind and dashed against the motor cycle of the deceased. Deceased sustained serious injuries and he succumbed to the injuries sustained on the way to the hospital. Claimants claimed a M.A.C.A.No.1769/2007 2 compensation of Rs. 25 lakhs. According to the claimants, the accident occurred due to the negligence on the part of the second respondent, the driver of the offending bus. 3. First claimant was the mother of the deceased. As she died, the brothers and sisters of the deceased were impleaded as supplemental respondents 4 to 13. They filed a written statement stating that claimants 2 and 3, the wife and daughter of the deceased are entitled to compensation. 4. Respondents 1 and 2, the owner and driver of the offending bus remained absent and were set ex parte by the Tribunal. The third respondent, the insurer of the offending bus filed a written statement admitting the accident, but contending that the accident occurred due to the negligence on the part of the deceased. 5. PW1 was examined and Exts.A1 to A9 were marked on the side of the claimants. The report of the MVI produced along with the written statement of the third respondent was marked as Ext.B1. The Tribunal dismissed the claim on the ground that the accident occurred due to the negligence on the part of the deceased. Claimants 2 and 3 M.A.C.A.No.1769/2007 3 have come up in appeal challenging the said finding of the Tribunal. 6. The main question for consideration is whether the finding of the Tribunal that the accident occurred due to the negligence on the part of the deceased and dismissing the O.P. can be sustained ? 7. The Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the deceased on the basis of Ext.B1, copy of the report of MVI. But Ext.B1 was not at all proved by examining any witness on the side of the third respondent. Further, the counsel for the appellants submitted that the police case was charged against the second respondent, the driver of the offending bus. 8. Under these circumstances, we feel that the matter should be remanded to the Tribunal to consider afresh all the aspects in this case. The Tribunal assessed the compensation to be paid to the claimants as Rs. 3,17,000/- with interest @ 6% per annum from January 14, 1998. But as we are remanding the case to the Tribunal, the Tribunal shall consider the entire aspect including the compensation to be awarded to the claimants. Therefore, we are setting aside the finding of the Tribunal that the accident occurred due to the negligence M.A.C.A.No.1769/2007 4 on the part of the deceased and consequently, the judgment of the Tribunal dismissing the O.P. The O.P. is remanded to the Tribunal for considering afresh the entire aspects in this case. In the result, the Appeal is allowed by way of remand. The O.P. is remanded to the Tribunal for considering afresh the entire aspects after giving opportunity to both parties to adduce evidence to prove their claims. As the O.P. is of the year 1998, the Tribunal shall dispose of the same within six months from the date of receipt of records. The Registry shall forward the records to the Tribunal forthwith. Parties shall appear before the Tribunal on June 1, 2010. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. M.A.C.A.No.1769/2007 5