IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 MACA.No. 2759 of 2008(G) ----------------------- OPMV.1433/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT: PETITIONER IN OP(MV): --------------------------------- P.ANEESHKUMAR, S/O.SADANANDAN, AGED 42 YEARS, RESIDING AT PALANGADATHU HOUSE, P.O.NALLALAM, KOZHIKODE. BY ADV. SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN RESPONDENTS: RESPONDENTS IN OPMV: ----------------------------------- 1. THE MANAGING PARTNER, M/S. EMPEE CREDIT CORPORATION, 81/189, SILK STREET, KOZHIKODE. 2. ORIENTAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, KINGSWAY BUILDING, MAVOOR ROAD, KOZHIKODE. ADV. SRI.V.M.KURIAN FOR R1 SRI.MATHEW B. KURIAN FOR R1 SRI.K.T.THOMAS FOR R1 SRI.ISAC T.PAUL FOR R1 SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R2 SRI.P.JACOB MATHEW FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. ------------------------------------ M.A.C.A No.2759 of 2008 ------------------------------------- Dated this the 6th day of April, 2009 JUDGMENT BASANT, J. Claimant before the Tribunal is the appellant before us. His claim for compensation was dismissed by the impugned award on the ground that satisfactory evidence has not been adduced. No oral evidence whatsoever is adduced. Only Ext.A1, copy of the accident register cum wound certificate has been produced. The Tribunal, in these circumstances, came to the conclusion that the claim has not been proved. Accordingly the Tribunal proceeded to pass the impugned award. 2. The learned counsel for the appellant contends that the appellant was not given real and reasonable opportunity to adduce evidence in support of his claim petition. In these circumstances, the short prayer of the learned counsel for the appellant is that he may be given an opportunity to adduce proper evidence and substantiate his claim. 3. We are disturbed by the manner in which the case has been conducted. Only Ext.A1 accident register cum wound certificate has been produced in this claim under Section 166 of M.A.C.A No.2759 of 2008 2 the Motor Vehicles Act. The appellant/claimant must know that in a claim for compensation under Section 166 of the M.V Act, the foundation of liability is the alleged negligence on the part of the driver/rider of the vehicle. Consequently the owner is saddled with vicarious liability and the insurer has the liability to indemnify the insured. There was total absence of any evidence adduced on the virtually relevant aspects. In these circumstances the Tribunal taking note of the circumstance that nothing was produced to prove negligence which is the foundation in a claim under Section 166 of the M.V Act proceeded to pass the impugned award dismissing the claim for compensation. We find no fault in the award passed by the Tribunal. 4. Be that as it may, we find merit in the submission of the learned counsel for the appellant that justice has not been done by the Tribunal to the claimant whatever be the reason. The claimant will have to blame himself for not having adduced proper evidence. The counsel submits that the claimant was not informed by his counsel about the date of posting and that is the reason why he could not adduce proper evidence. M.A.C.A No.2759 of 2008 3 5. Dissatisfied though we are with the manner in which the case was conducted, we are satisfied that the appellant/claimant can be granted an opportunity to adduce further evidence and substantiate his claim. Moved by the plight of the appellant, we are persuaded to concede a further opportunity to the appellant/claimant to substantiate his claim. 6. In the result: a) This Appeal is allowed; b) The impugned award is set aside; c) The Tribunal is directed to dispose of the case afresh after giving the appellant an opportunity to substantiate his claim; d) A copy of this judgment shall be given to the counsel for the appellant. The counsel/appellant shall appear before the Tribunal on 25.05.2009. The Tribunal shall grant him a further opportunity to substantiate his claim and shall ensure that his claim is disposed of as expeditiously thereafter - at any rate, within a period of two months from 25.05.09; e) We direct that the appellant/claimant shall not be entitled for interest from 16.10.07-the date of the impugned M.A.C.A No.2759 of 2008 4 award, to 25.05.2009-the date appointed for appearance again to continue the proceedings as the blame for improper disposal during such period must be attributed entirely to the conduct of the appellant/his counsel in not adducing proper evidence. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) rtr/-