IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 MACA.No. 652 of 2008 ---------------------- OPMV.579/2002 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT : ------------------- RAJAPPAN, S/O.VELU, SURESH BHAVANAM, VADAKKUM MURI KIZHAKKU, THAZHAVA VILLAGE, KARUNAGAPPALLY, KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL RESPONDENTS: ---------------------- 1. REJI MATHEW, S/O.K.O.MATHEW, KARAKKADAYIL HOUSE, THUNDONGANADU, THODUPUZHA, IDUKKI DISTRICT. 2. UNNIKRISHNAN PILLAI, S/O.KUTTAPPA KURUP, KOCHAYATHU, VADAKKUM MURI KIZHAKKU, THAZHAVA VILLAGE, KARUNAGAPPALLY, KOLLAM DISTRICT. 3. THE DIVISIONAL MANAGER, DIVISIONAL OFFICE, NATIONAL INSURANCE COMPANY LIMITED, PARAMESWARAN PILLAI BHAVAN, HOSPITAL ROAD, KOLLAM. ADV. SMT.SARAH SALVY FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 652 OF 2008 --------------------------------- Dated this the 17th day of December, 2008 JUDGMENT This appeal is preferred against the award of the II Additional Motor Accident Claims Tribunal, Kollam in O.P.(MV) No.579/2002. It is the case of the claimant that while he was standing on the southern side of road near Reshmi theatre, a Kinetic Honda scooter came in a rash and negligent manner and due to negligent driving of the 2nd respondent hit on the claimant resulting in sustainment of injuries. He also sustained a fracture. Respondents 1 and 2 had chosen to remain exparte. The 3rd respondent has denied the fact that the claimant had sustained injuries in a road accident that took place on 12.12.01 and it was only on the basis of a private complaint a crime was registered on 16.3.2002. The tribunal found fault with the claimant for the inordinate delay in launching a complaint. It also found that the investigating agency also has not done things properly and that it has not inspected the motor vehicle involved in the accident. The tribunal was not happy with the materials and therefore dismissed the case. 2. The Insurance Company even did not choose to cross M.A.C.A.No. 652/2008 -2- examine the witness at the stage of trial and it was set exparte. It is in this state of affairs the tribunal decided to apply its mind to decide the case. When a witness tenders evidence and his evidence is not challenged in cross examination, it has to be stated that it is an unshaken evidence. When a private complaint is filed long after the accident there will be no purpose in preparing the report of the motor vehicles because under ordinary circumstances, even if there were any slight damages it would have been repaired. So the basic materials are that transpires immediately after the accident. He was admitted in hospital and it is seen from the wound certificate that the injuries are sustained on account of a road traffic accident. Under ordinary circumstances it cannot be false. But whether the very particular vehicle had hit on the person etc. are matters that requires detailed consideration and really independent cross examination by the contesting respondents. 3. Therefore I am inclined to grant an opportunity to all concerned to produce both documentary as well as oral evidence for a fresh disposal. Needless to say, the Insurance Company be given an opportunity to cross examine the witness. If original of the treatment records are necessary for appreciation of the case, M.A.C.A.No. 652/2008 -3- let it also be concerned and the matter be decided in accordance with law. Therefore the award under challenge is set aside and the case is remitted back to the tribunal for a fresh trial after affording equal opportunities to all concerned. When the original award is set aside, needless to say, any order in Review Petition will not have any impact. Parties are directed to appear before the tribunal on 21.1.2009. M.N. KRISHNAN,JUDGE vkm