IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 MACA.No. 1496 of 2009() ---------------------------- (OPMV.280/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR) ....................... APPELLANT(S): (PETITIONER IN OP(MV)280/04 -------------------------------------------------------- FRANCIS K.D, S/O.DEVASY, AGED 40 YEARS, KILUKKAN(H), MALAYAM KUNNU, KARUKUTTY PO, ERNAKULAM DIST. BY ADV. SRI.V.K.GOPALAKRISHNA PILLAI RESPONDENT(S): RESPONDENTS ON OP(MV)280/04 ------------------------------------------------------------- 1. JESTO VARGHESE, S/O.VARGHESE, VADAKKUMCHERY HOUSE, MOOKKANNOOR PO, ANGAMALY. 2. THE ORIENTAL INSURANCE CO.LTD, BR.OFFICE, IST FLOOR, KALLOOKARAN SHOPPING COMPLEX, ANGAMALY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1496 OF 2009 = = = = = = = = = = = = = = = Dated this the 16th day of December, 2009. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Perumbavoor in O.P.(MV)280/04. The claimant, while riding on a cycle sustained injuries on account of a road accident when the cycle was hit on a motorbike. He was examined as PW1 and Exts.A1 to A12 series and X1 were marked. After analysis of the evidence the trial court did not accept the case of the claimant and dismissed the petition. It is against that decision the claimant has come up in appeal. 2. Heard the learned counsel for the appellant and nobody has entered appearance on behalf of the respondent. The accident had taken place on 7.9.2003 and a private complaint is filed almost about 3½ months from that date and it was on the basis of a reference u/s 156(3) of the Criminal Procedure Code, a case was registered and subsequently investigation is done. So the later part of M.A.C.A. 1496 OF 2009 -:2:- investigation may not clinch the issue but the basic facts would reveal that immediately after the accident the man was taken to the Primary Health Centre Angamaly. He was there for 2 days and thereafter he was referred to the Little Flower Hospital where he was an inpatient. Ext.X1 series is a case sheet maintained by the Little Flower Hospital which indicates that the cause of injury is shown as cycle x bike accident. So immediately after the accident the man has been taken to a local hospital where the wound certificate records the accident and so also the little Flower Hospital and it is in this back ground we have to analyze the evidence of PW1 as well. It would indicate that his evidence is in relation with the materials placed before the Court and therefore the Court below was not right in totally rejecting his case on the ground that there has been a delay in filing the private complaint. Considering the factum of two wound certificates coupled with the case sheet, Ext.X1 series as well as the evidence of PW1 I have no hesitation to hold that the injury is sustained on account of the road accident. It is submitted that the owner cum driver has attended before the Tribunal M.A.C.A. 1496 OF 2009 -:3:- and admitted the negligence. So I find that the Court below went wrong in holding against the claimant and so the accident as well as negligence is found in favour of the claimant. The Tribunal has not applied its mind for fixation of quantum nor has fixed the quantum. Therefore the matter requires reconsideration for the purpose of fixation of quantum. Therefore the award under challenge is set aside and the matter is remitted back to the Tribunal for the limited purpose of fixation of quantum after hearing all concerned. Since the respondent has not entered appearance the claimant is directed to take out notice to the insurance company at least before the quantum is fixed. Appellant is directed to appear before the Tribunal on 21.1.2010. The MACA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-