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 11TH FEBRUARY 2010 / 22ND MAGHA 1931 MACA.No. 586 of 2006() ---------------------- OPMV.1880/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER ---------------------------------- M.S.ALIYAR, S/O.SYED, RESIDING AT MARANGATTU HOUSE, MULAVOOR P.O., MULAVOOR VILLAGE, MUVATTUPUZHA. BY ADV. SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU RESPONDENT(S): RESPONDENTS -------------------------- 1. ABU P.M., S/O.MAKKAR, PUTHUSSERIKUDY HOUSE, MULAVOOR, PUTHUPPADY P.O., KOTHAMANGALAM. 2. ABUBAKCER M.M., S/O.MOHAMMED, MARANGATTU HOUSE, MULAVOOR VILLAGE, MUVATTUPUZHA. 3. THE BRANCH MANAGER, ORIENTAL INSURANCE CO. LTD., KOTHAMANGALAM. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.586 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of February, 2010 JUDGMENT Barkath Ali, J. Challenge in this appeal under Section 173 of Motor Vehicles Act is to the judgment and award of the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV)No.1880/2001 dated November 7, 2005 dismissing the O.P. finding that the appellant/claimant is not entitled to any compensation for the alleged loss caused to him on account of the injuries sustained in a motor accident. 2. The case of the appellant/claimant as testified by him as PW1 before the Tribunal was that on September 18, 2001, while he was pillion riding on a scooter bearing Reg.No.KL-7J/9949 ridden by the first respondent along Veettoor-Ambalampady road and reached at Pezhakkappilly, the first respondent lost the control of the vehicle and knocked down two pedestrians and the scooter over turned, that two pedestrians and the claimant who was pillion riding on the scooter sustained injuries and that the accident occurred due to the negligence on the part of the first respondent. MACA.No.586/06 Page numbers First respondent remained absent and was set ex parte. The second respondent, the owner of the scooter filed a written statement admitting the policy. The third respondent, the insurer of the offending scooter filed a written statement to the effect that actually the appellant was riding the scooter and that the accident occurred due to his negligence and that therefore he is not entitled to any compensation. 3. The pedestrians who were injured in the accident preferred O.P.(MV)Nos. 1753/2004 and 2024/2001. All these three petitions were tried together and evidence was recorded in O.P.(MV) No.1753/2004 by the Tribunal. PWs 1 to 5 were examined and Exts.A1 to A14 were marked on the side of the claimants. No evidence was adduced by the contesting third respondent. 4. The main question which arises for consideration is whether the Tribunal is justified in finding that it was the appellant/claimant who was riding the scooter, that the accident happened due to his negligence and that therefore he is not entitled to any compensation and consequently dismissing the O.P. can be sustained ? 5. The appellant/claimant as PW1 testified before the Tribunal MACA.No.586/06 Page numbers that he was pillion riding on the scooter at the time of the accident. The Tribunal disbelieved his evidence and finding that actually he was riding the scooter and he was responsible for the accident and that therefore he is not entitled to any compensation and dismissed the O.P. 6. For several reasons we are inclined to hold that the said finding of the Tribunal cannot be sustained. The two pedestrians who are injured in the accident filed O.P.No.1753/2004 and 2024/2001. The first respondent, the rider of the scooter did not file any claim petition. PWs 1 to 5 were examined and Exts.A1 to A14 were marked before the Tribunal. PWs 1 , 2 and 5 are the injured and PWs 3 and 4 are the alleged eye witness to the incident. PW1 testified in a convincing manner before the Tribunal that he was pillion riding on the scooter. Nothing was brought out during his cross examination to discredit his evidence. The evidence of PW1 is supported by the fact that the police has charged the case against the first respondent which is evidenced by Ext.A3, the copy of the police charge. PWs 2 and 5 also testified that while they were walking along the side of the road, they were knocked down by the offending scooter. Counsel for the contesting third respondent was not able to shake their evidence in cross examination. MACA.No.586/06 Page numbers PWs 2 and 5 did not testify that it was the appellant who drove the scooter at the time of accident. They would say that they did not know the rider of the scooter. Therefore their evidence do not in any way show that it was the appellant who drove the scooter at the time of the accident. PWs 3 and 4 the alleged eye witness also did not testify that it was the appellant who drove the scooter. 7. The Tribunal relied on Exts.A6 and A9, the wound certificates issued from the Taluk Head Quarters Hospital, Muvattupuzha wherein the alleged cause of the accident was noted by the Doctor as fall from bike . But the doctors who issued Exts.A6 and A9 were not examined as witnesses by the contesting respondent to prove the same. Therefore, the Tribunal is not justified in relying on those entries in Exts.A6 and A9 and coming to the conclusion that it was the appellant who was riding the scooter and PW2 was pillion riding on the scooter. 8. For all these reasons, the finding of the Tribunal that the appellant/PW1 was riding the scooter at the time of the accident and that the accident occurred due to his negligence and that he is not entitled to any compensation is liable to be set aside. We find that the MACA.No.586/06 Page numbers first respondent was riding the scooter at the time of the accident and that the appellant was pillion riding and that the accident occurred due to the negligence on the part of the first respondent. It follows and we find that the appellant/claimant in O.P(MV.No.1880/2001 is entitled to compensation for the loss caused to him on account of the injuries sustained in the accident. The Tribunal did not quantify the compensation to which the appellant is entitled to. Therefore, we feel that the matter can be remanded to the Tribunal to assess the compensation which the appellant is entitled to . In the result, the appeal is allowed by way of remand. The impugned order under appeal dismissing O.P.(MV)No.1880/2001 is set aside. The matter is remanded to the Tribunal to decide the question of quantum of compensation to which the appellant is entitled to. The parties shall appear before the Tribunal on March 31, 2010. In the circumstances, the parties shall bear their own costs. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. MACA.No.586/06 Page numbers