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. 1334 of 2009() ----------------------- OPMV.445/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): PETITIONER IN OPMV -------------------------------- P.MUHAMMED, S/O.MOIDEENKUTTY, AGED 46 YEARS, PALATTUKANDIYIL HOUSE, POOKALATHUR, PULPATTA POST,MANJERI VIA, MALAPPURAM. BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENT(S): RESPONDENTS --------------- 1. K.NOUSHADALI, NAZAR MANZIL, AGE AND FATHERS NAME NOT KNOWN , P.O.N.S.S. COLLEGE MANJERI, MALAPPURAM. 2. K.MUHAMMED ASHRAF, S/O.MOIDEENKUTTY KOZHISSERY HOUSE, VEERAIAMBRAM POST,KOZHIKODE. 3. THE NATIONAL INSURANCE CO.LTD BRANCH OFFICE, KERAMBAIL ARCADE, PANDIKKAD ROAD, KOZHIKODE. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW 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.1334 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of April, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P.(MV)No.445/2001 of Principal Motor Accidents Claims Tribunal, Kozhikode challenges the judgment and award of the Tribunal dated February 13, 2008 dismissing the O.P. filed by the claimant claiming a compensation of Rs.2 lakhs for the loss caused to him on account of the injuries sustained in a motor accident. 2. The facts leading to this appeal in brief are these : On September 20, 2000 at about 10.a.m. while the claimant was standing on the side of the road at Chengara, he was knocked down by the bus bearing Reg. No.KL-10-B-1395. Claimant sustained very serious injuries. According to the claimant, the accident occurred due to the negligence on the part of the driver of the offending bus, the second respondent. First respondent as the owner, second respondent as the driver and third respondent as the insurer of the offending bus M.A.C.A.No.1334/2009 2 are jointly and severally liable to pay compensation to the claimants. 3. 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 policy,but denying the liability. 4. Exts.A1 to A3 and Ext.C1 series were marked on the side of the claimants . No evidence was adduced by the contesting third respondent. The claim petition was dismissed by the Tribunal on the ground that claimant has not proved his claim. The claimant has now come up in appeal challenging the said finding of the Tribunal. 5. The only question which arises for consideration is whether the finding of the Tribunal that the claimant has not proved his claim and dismissing the O.P. can be sustained ? 6. Exts.A1 to A3 series and Ext.C1 were marked before the Tribunal. Ext.A1 is the copy of the FIR in the criminal case. Ext.A2 is the copy of the wound certificate. Ext.A3 series are leave certificates and salary certificates. Ext.C1 is the report of the Medical Board. The Tribunal found that in Ext.A2, the copy of the wound certificate, the M.A.C.A.No.1334/2009 3 nature of the accident was described as bus bike collision, but in the claim petition, it is stated that while the claimant was standing on the side of the road, he was knocked down by the bus, that the claimant has not chosen to come forward and to testify before the Tribunal to prove the accident and therefore, the Tribunal took the view that claimant has failed to prove the accident. Before this court, the claimant produced copies of charge sheet, scene mahazar, wound certificate and Treatment book issued from the Medical College Hospital, Kozhikode. It is seen from these documents that while the claimant was standing on the side of the road, he was knocked down by the bus. That being so, the finding of the Tribunal that the claimant has not proved the claim and dismissing the O.P. cannot be sustained. Therefore, we feel that the matter has to send back to the Tribunal to consider the entire matter afresh. In the result, the Appeal is allowed by way of remand. The impugned judgment of the Tribunal dismissing the O.P. is set aside. The O.P. is remanded to the Tribunal to consider afresh the entire aspects after giving opportunity to both sides to adduce further M.A.C.A.No.1334/2009 4 evidence. The claimant can produce documents before the Tribunal to prove his claim. As the O.P. is of the year 2001, the Tribunal shall dispose of the same as early as possible, but not later than six months from the date of receipt of records. The Registry shall forward the records to the Tribunal forthwith. The 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.1334/2009 5