IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 MACA.No. 1392 of 2004() ------------------------------------ OP(MV)NO .617/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): 1ST PETITIONER ------------------------------------------------ ANIL CHACKO, PULIMOOTTIL HOUSE, CHUNGAM BHAGOM, THODUPUZHA P.O. BY ADV. SRI.T.J.MICHAEL SRI.P.NOORSAMEER RESPONDENT(S)/ PETITIONER ---------------------------------------------- 1. T.K.BABY S/O. KORA, THERUVEL HOUSE, THATTARATHATTA P.O., MRALA KARA, KARIMKUNNAM VILLAGE. 2. THE UNITED INDIA INSURANCE CO.LTD., THODUPUZHA. R2 BY ADV. SRI.RAJAN P.KALIYATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2011,ALONG WITH MACA NO. 1394 OF 2004 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts A.K.BASHEER & P.Q. BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= M.A.C.A. Nos. 1392 & 1394 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~==~=~=~= Dated this the 11th day of February, 2011 JUDGMENT Barkath Ali, J. Both these appeals arise out of the common judgment and award passed by the Tribunal in O.P.(MV)No.617/99 & 516/1999 dated May 3, 2004. Appellants in both the appeals are same. He is the petitioner in O.P.(MV)No.617/1999 and first respondent in O.P.(MV)No.516/1999. M.A.C.A.No.1392/2004 is directed agaisnt the award in O.P.(MV) No.617/1999 and M.A.C.A.No.1394/2004 is directed against the award in O.P.(MV) No.516/1999. 2. On January 22, 1999 at about 2.15 p.m., the scooter bearing Reg.No.KL 6/7419 ridden by the appellant collided head on with the scooter bearing Reg.No.KL 6/4161 ridden by the claimant in O.P.(MV)No.516/1999 on the Thodupuzha-Palai road. Both of them sustained injuries. Appellant filed O.P.(MV) No.617/1999 claiming a compensation of Rs.2,50,000/- alleging negligence against the other claimant. The rider of the other motor cycle filed O.P.(MV)No.516/1999 alleging negligence MACA 1392/2004 & con. case 2 against the appellant and claiming a compensation of Rs.4,00,000/-. Both these O.Ps. were jointly tried by the Tribunal. 3. Exts.A1 to A9 were marked on the side of the claimant in O.P.(MV)No.516/1999. On the side of the appellant, he was examined as RW1 and he produced Exts.B1 to B7. On an appreciation of evidence, the Tribunal found that the accident occurred due to the negligence of the appellant and dismissed O.P.(MV)No.617/1999 and allowed O.P.(MV)No.516/1999 awarding a compensation of Rs.67,650/-. The appellant has challenged the said finding of the Tribunal in these appeals. 4. Heard the counsel for the appellant and the respondents. 5. The following points arise for consideration : Whether the finding of the Tribunal that the accident occurred due to the negligence on the part of the appellant who is the claimant in O.P.(MV)No.617/1999 and first respondent in O.P.(MV)No.516/1999 can be sustained ? 6.. The Tribunal came to the conclusion that the MACA 1392/2004 & con. case 3 accident occurred due to the negligence of the appellant mainly on the basis of Ext,A3 copy of the scene mahazar in the criminal case which in our view cannot be sustained for the following reasons:- The appellant has also filed a complaint before the police, which was referred. The private complaint filed by the appellant, which was taken on file as C.C. No.702 of 1999, ended in acquittal of the accused who is the claimant in O.P.(MV) No.516 of 1999. In that case the Asst. Sub Inspector of Police, Thodupuzha prepared a scene mahazar on January 24, 1999. In the criminal case charged against the appellant C.C.No.446 of 1999 the de facto complainant, who is the claimant in O.P. (MV) No.516 of 1999, filed a petition before the Magistrate to direct the police to prepare scene mahazar afresh, which was allowed. In pursuance of the order of the Magistrate, police prepared a new scene mahazar on October 1, 1999 wherein the spot of the accident was shown as a different place. A copy of this scene mahazar was marked as Ext.A3 by the Tribunal. MACA 1392/2004 & con. case 4 Challenging the validity of the said mahazar the appellant filed Crl.R.P. No.24 of 2011 before the Sessions Court, Thodupuzha and the learned Sessions Judge set aside the said proceedings of the learned Magistrate. As against that order, the first respondent in both these appeals, who is the claimant in O.P.(MV) No.516 of 1999, filed a revision before this court, which is pending. Under these circumstances, the learned Magistrate was not justified in relying on Ext.A3. Ext.B1 is the copy of the original mahazar dated January 24, 1999 prepared in the case wherein the spot of the accident was shown on the eastern side of the road. 7. Further the appellant herein was examined as RW1 before the lower court who testified in a convincing manner regarding the negligence on the part of the claimant in O.P. (MV) No.516 of 1999. The claimant in the said case has not chosen to come forward to swear regarding the alleged negligence of RW1. 8. For all these reasons we set aside the finding of the Tribunal that the accident occurred due to negligence on MACA 1392/2004 & con. case 5 the part of the claimant in O.P.(MV) No.516 of 1999. As we propose to remand the case for trial afresh, the question regarding the negligence is left open to be decided by the Tribunal. While considering the question of negligence the trial court shall consider the evidence of RW1 as well as Ext.B1. As the Sessions Court has set aside the proceedings of the Magistrate calling for a fresh mahazar, the trial court should not rely on Ext.A3 for considering the question of negligence. 9. In the result, both these appeals are allowed. The finding of the Tribunal that the accident occurred due to the negligence of the claimant in O.P.(MV) No.617 of 1999 who is the first respondent in O.P.(MV) No.516 of 1999 is set aside. The matter is remanded to the Tribunal for deciding afresh the question of negligence as well as the quantum of compensation the appellant is entitled to, if any. Both the parties are at liberty to adduce further evidence, if any, before the Tribunal. The Tribunal shall dispose of both the Original Petitions as early as possible but not later than MACA 1392/2004 & con. case 6 three months from the date of receipt of copy of this judgment. The parties shall appear before the Tribunal on May 25, 2011. Registry shall forward the records to the Tribunal forthwith. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn