IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 15TH MARCH 2010 / 24TH PHALGUNA 1931 MACA.No. 1078 of 2009() ----------------------- OPMV.708/2002 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ALAPPUZHA .................... APPELLANT(S): PETITIONER: ------------------------- GILBERT @ ANU, S/O.LAWRENCE, KAKKARIYIL HOUSE, NEAR VIKASANA JUNCTION, A.M.C.WARD NO.7, ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR RESPONDENT(S): RESPONDENTS --------------- 1. BAIJU C.S., S/O.SUKUMARAN C.A., CHENNAMPRAMBIL HOUSE, KATTOOR P.O., KALAVOOR, ALAPPUZHA. 2. THE ORIENTAL INSURANCE COMPANY LTD., MULLACKAL, ALAPPUZHA BRANCH, REPRESENTED BY ITS MANAGER. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R2 SRI.P.JACOB MATHEW FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No.1078 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of March, 2010 JUDGMENT Basheer, J. Appellant who allegedly sustained certain injuries in a road traffic accident filed a petition for compensation before the Motor Accidents Claims Tribunal claiming a total sum of Rs. 1,40,000/- under various heads, from the respondents. According to the appellant, while he was riding as a pillion on a two wheeler, an auto rickshaw that was being driven by the first respondent had suddenly turned towards right without giving any signal resulting in a collision between the two vehicles. Resultantly, the appellant sustained fracture of radius etc. 2. The Tribunal after considering the documentary evidence available on record granted a sum of Rs. 40,750/- as compensation. However, the Tribunal held that the appellant had also contributed to the accident to the extent of 50%. 3. Learned counsel points out that the above finding is totally erroneous especially in view of the final report submitted by the Police MACA.NO.1078/09 2 as revealed from Ext.A2 charge sheet. 4. We have gone through the materials available on record. Ext.A2, the final report of the police, indicates that both vehicles were travelling in the same direction and the auto rickshaw which was going in front of the two wheeler took a turn towards right without giving any signal. But it appears that the Tribunal has proceeded as though the two vehicles were coming from opposite directions. According to the Tribunal, the accident occurred on the western extrimity of the road when the vehicle on which the appellant was travelling came from north to south while the the auto rickshaw came from south to north. This finding by the Tribunal appears to be totally contrary to what has been recorded by the police in the final report. 5. We do not propose to make any further observation on the above aspect. In our view this is a matter for evidence. Significantly, the appellant had not bothered to step into the box and speak about the accident. Learned counsel submits that the appellant, if given an opportunity, is prepared to adduce evidence before the Tribunal. MACA.NO.1078/09 3 6. Having regard to the peculiar facts and circumstances, we are satisfied that the appellant can be granted an opportunity; but on terms. Therefore, the impugned award is set aside on payment of a sum of Rs. 5000/- as cost to respondent No.2, Insurance Company. If the appellant pays the above cost within ten days from today, the award passed by the Tribunal shall stand set aside. If the appellant fails to pay the cost as directed above, the appeal will stand dismissed. If the cost is paid, the appellant and respondent No.2 shall appear before the Tribunal on May 19, 2010. The Tribunal shall make an earnest endeavour to dispose of the petition as early as possible, at any rate, within three months from the date of receipt of a copy of this judgment. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.NO.1078/09 4