IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 7TH APRIL 2008 / 18TH CHAITHRA 1930 MFA.No. 529 of 2003(A) ---------------------- OPMV.4230/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANTS/PETITIONERS: ---------------------- 1. K.A.KUSUMAKUMARI, AGED 57 YEARS, WIFE OF LATE G.KOCHURAMAN. 2. J.K.JAYAN, AGED 30 YEARS, SON OF LATE G.KOCHURAMAN. BOTH APPELLANTS ARE RESIDING AT `JAYA BHAVAN' NEAR N.G.O. QUARTERS, B.M.C. P.O., KAKKANADU. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.NITHYA.K. RESPONDENTS/RESPONDENTS: ------------------------ 1. THE MANAGING DIRECTOR, K.S.R.T.C., THIRUVANANTHAPURAM - 23. 2. VIJAYAN PILLAI, VAZHAPPILLETH HOUSE, WARD NO.17, MAVELIKKARA. R1 BY ADV.SHRI.JOHNSON P.JOHN, SC, KSRTC THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.1021/2003 IN M.F.A.529/2003 DISMISSED. 7.4.2008 SD/- J.B.KOSHY, JUDGE SD/- K.HEMA, JUDGE /TRUE COPY/ J.B.KOSHY & K.HEMA, JJ. -------------------------------------- M.F.A.No.529 OF 2003 ------------------------------------- Dated 7th April, 2008 JUDGMENT Koshy,J . Legal representatives of a deceased motor accident victim filed an application for compensation contending that the accident occurred due to the negligence of the second respondent driver of the vehicle owned by the first respondent. In support of the application, first applicant was examined. F.I.R., inquest report and postmortem certificate etc. were produced. It was deposed that the accident occurred due to the negligent driving of the second respondent driver. Tribunal also found that first and second respondents remained absent and they were set ex parte and no evidence was adduced by the first and second respondents that the accident had occurred due to the negligence on the part of the deceased. But, after that Tribunal found that the accident occurred due to the negligence on the part of the deceased himself without any evidence to that effect. Merely on the basis of scene mahazar cause of accident cannot be found out as the position of the vehicle may change immediately after the accident. Tribunal did not consider the F.I.R. Whether both drivers can be found to be negligent also was not considered. Finding of negligence on the deceased was MFA.529/2003 2 found without any basis. It is true that monthly income of the deceased claimed is above Rs.4,000/=. Claim under section 163-A of the Motor Vehicles Act will not lie. In claim under section 166 and 163A, compensation has to be calculated under section 166 and claim under section 163-A is not maintainable. This is a case of death. Inquest report and F.I.R. were produced. Tribunal even went on to find fault with for the absence of wound certificate. Death due to injuries suffered in the accident is not disputed by any of the respondents. Findings of the Tribunal are perverse. We set aside the award and remand the matter for fresh consideration. Both parties are allowed to adduce evidence before the Tribunal. Parties shall appear before the Tribunal on 25.6.2008. Appeal is allowed by way of remand. J.B.KOSHY JUDGE K.HEMA JUDGE tks