IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 8TH AUGUST 2008 / 17TH SRAVANA 1930 MACA.No. 1209 of 2007(A) ------------------------------------- O.P.(MV).NO.643/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR. .................... APPELLANT/ 3RD RESPONDENT: ----------------------------------------------- NATIONAL INSURANCE COMPANY LIMITED, THRISSUR, NOW REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, OMANA BUILDING, M.G. ROAD, KOCHI-35. BY ADV. SRI.MATHEWS JACOB (SR.), ADV. SRI.P.JACOB MATHEW. RESPONDENTS/ PETITIONER AND RESPONDENTS 4 & 5: ---------------------------------------------------------------------------------- 1. REMA, W/O. PREMARAJAN, REMA NILAYAM, ANNAKKAMBAD, KALADY P.O., PONNANI TALUK. 2. KUNHUNNI, S/O. KARUPPUNNI, KOTHAMBATH HOUSE, PERUMPARAMBU P.O., PONNANI, MALAPPURAM DISTRICT. 3. THE ORIENTAL INSURANCE COMPALY LIMITED, C.K.H. BUILDING, THAZHEPPADAM, TIRUR. (NO RELIEFS ARE CLAIMED AGAINST RESPONDENTS 1 AND 2 IN THE ABOVE ORIGINAL PETITION AND HENCE THEY ARE NOT MADE PARTIES IN THIS APPEAL). ADV. SRI.V.E.ABDUL GAFOOR FOR R.1, ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R.3. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N.KRISHNAN, J ===================== MACA No.1209 OF 2007 ===================== Dated this the 8th day of August 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Tirur in O.P.(MV)No.643 of 2004. The Tribunal found that the first respondent in the claim petition is responsible for the accident and directed the 3rd respondent insurance company to deposit the amount. It is against that decision the present appeal is preferred by the insurance company. 2. The accident arose on account of a collision between an autorickshaw and a car. A scene mahazar was prepared which indicates that the road was having a width of 9 meters at the place of the accident and the accident had taken place 1.50 meters west of the eastern tar end. The car was proceeding from north to south and the autorickshaw was proceeding from the opposite direction. The correct side of the car was eastern side and that of the autorickshaw was western side. The Tribunal in paragraph 10 had discussed the matter and held that it appears that there is inconsistency between paragraph 1 and 2 of the scene mahazar. There is absolutely no MACA 1209/2007 -:2:- inconsistency. What is stated in the first paragraph is that the accident had taken place 1.50 meters west of the eastern tar end and in the second paragraph what is stated is the accident had taken place 7.50 meters east of the western tar end. Both these are the same and there cannot be any inconsistency. Further complication is created in the charge sheet where the place of accident is stated on the western side of the road. To crown all these things, the claimant did not enter the box and give evidence. I am afraid that this inconsistency has led to the incorrect arrival of a decision and therefore the matter requires reconsideration. If both drivers are negligent apportionment has to be done and therefore the award under challenge is set aside and the matter is remitted back to the Tribunal for fresh consideration after affording opportunity to all concerned to produce both documentary and oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. Parties are directed to appear before the Tribunal on 18.9.2008. M.N.KRISHNAN, JUDGE Cdp/-