IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 MACA.No. 512 of 2005(D) ----------------------------------- OPMV.1147/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/ORIGINAL PETITIONER : ------------------------------------------------------ SUNIL. T.K., AGED 25 YEARS, THOTTIKUDY VEEDU, NEDUNGAPRA, PERUMBAVOOR, KUNNATHUNADU TALUK. BY ADV. SRI.V.K.ISSAC SRI.K.K.APPU SRI.ISAC SANJAY SRI.GIMMY P ANTONY RESPONDENTS/RESPONDENTS : --------------------------------------------- 1. HEAD MASTER, ATHANASIUS COLLEGE HIGH SCHOOL, KOTHAMANGALAM. 2. JIMMY JOHN, S/O. JOHN, NARCEMCHERRY HOUSE, KUTHUKUZHY KARA, KOTHAMANGALAM. 3. ORIENTIAL INSURANCE CO.LTD., BRANCH OFFICE, P.B.NO.50, ELENGICAL MATHEW MEMORIAL PLAZA, CHURCH VIEW JUNCTION, KOTHAMANGALAM. BY ADV. SRI.GEORGE JACOB (JOSE) - R1 SRI.GEORGE CHERIAN (THIRUVALLA) - R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/07/2008 ALONG WITH MACA NO.516/2005 AND MACA NO.595/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== MACA Nos.512, 516 & 595 OF 2005 ===================== Dated this the 11th day of July 2008 JUDGMENT These appeals are preferred against the award of the Motor Accidents Claims Tribunal, Perumbavoor in O.P.(MV)Nos.1147/98, 691/98 and 1316/98, which were disposed of by a common award. The Tribunal dismissed all the applications. The brief facts necessary for the disposal of the appeals are stated as follows: It is the case of the petitioners that there was a collision between the car bearing Regn.No.KRF-2010 and a tempo van bearing Regn.No.KL/7J/9138, as a result of which the car got damaged and the passengers in the car sustained injuries. Respondents 1 and 2 in these applications, viz., the owner and the driver of the school van did not contest the case at all. It was only the 3rd respondent, who contested the case disputing the factum of negligence. The Tribunal, on analysis held that the negligence is not proved. Whether such a finding is proper in the light of the materials available or whether the matter requires reconsideration is the point to be considered by this Court at this stage. Admittedly two of the persons, who were travelling in the car had been examined as PW1 and MACA 512/05 & con.cases -:2:- PW4. It is submitted that a police case was filed against the driver of the car for the negligence and on a private complaint filed by the driver of the car a case was registered against the driver of the tempo van. I am informed that both the cases have ended in acquittal. The approach to cases under Sections 279 and 338 is to affix the criminal negligence whereas in a motor accident case, we are concerned really about the civil negligence. The approach to both the cases are different for the reason that a criminal case requires absolute proof whereas a civil case can be decided on the preponderance and probability of the case. I had been taken through the award by the learned counsel for the appellants. It is seen that Pws.1 and 4 have deposed about the negligence of the school van driver but the court is not prepared to accept them for the reason only known to it. A question was put in the cross examination whether any document has been produced by the petitioner to prove the negligence of the tempo driver for which PW1 answered positively but would contend that the tempo driver was acquitted by the criminal court. As discussed by me earlier and it can be seen that both the cases had ended in acquittal and in a motor accident case the court has necessarily to find the negligence either composite or contributory or absolute. So the method of approach has to be in that angle which unfortunately the Tribunal below did not direct itself. If further MACA 512/05 & con.cases -:3:- evidence is necessary or documents are to be produced that can be done and the matter can be re-appreciated and appropriate award be passed in accordance with law. Therefore the awards under challenge in all these cases are set aside and the matters are remitted back to the Tribunal for fresh consideration after affording an opportunity to the appellants in each case to produce both documentary and oral evidence in support of their respective contentions and also permission is granted to the insurance company to adduce evidence in support of its contentions. Parties are directed to appear before the Tribunal on 25.8.2008. MACAs are disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-