IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 MACA.No. 627 of 2007() ---------------------- OPMV.2354/1993 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER: ------------------------------------------ NARAYANAN NAIR K.V., S/O.VELAYUDHAN PILLAI, CHANDRALAYAM HOUSE, MUTTAR P.O., MUTTAR. BY ADV. SRI.T.K.KOSHY RESPONDENTS: RESPONDENTS 1 AND 2: -------------------------------------------------------------- 1. SHIBU SIMON, CHAKKUMKULATHU HOUSE, KURAVILANGADU, KOTTAYAM. 2. ORIENTAL INSURANCE CO. LTD., KOTTAYAM. ADV. SRI.ARIKKAT VIJAYAN MENON FOR R1 SRI.HARISANKAR V. MENON FOR R1 SMT.MEERA V.MENON FOR R1 SRI.MAHESH V.MENON FOR R1 SRI.MATHEWS JACOB (SR.) FOR R.2 SRI.P.JACOB MATHEW FOR R.2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 627 OF 2007 = = = = = = = = = = = = = = = Dated this the 24th day of July, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kottayam in O.P.(MV)2354/93. It is the case of the claimant that while he was walking along the road the vehicle ridden by the first respondent came in a rash and negligent manner and hit on him resulting in injuries to him. On the other hand the first respondent would contend he had never hit the claimant on that day and at the time of the alleged accident he was doing internal-ship in the veterinary clinic and therefore denied the involvement of the vehicle in the accident. 2. To start with the Tribunal allowed the claim application and granted a compensation of Rs.27,000/-. Against the same the insurance company preferred an appeal and this Court held that an application under Section 170 of the M.V. Act was pending before the Tribunal and without disposing of the same the insurance company cannot contest M.A.C.A. 627 OF 2007 -:2:- the case. Therefore the matter was sent back to the Tribunal for the purpose of considering that application. When the parties appeared after remand the 170 petition was considered and dismissed by the Tribunal on the ground that R1 is contesting the claim and there is no allegation of any collusion between the claimant and the first respondent. Thereafter it appears that no additional evidence or particulars had been furnished before the Tribunal and therefore the Tribunal held that there is no sufficient evidence to indicate the involvement of the vehicle in the accident and therefore dismissed the claim. It is against that decision the claimant has come up in appeal. 3. The learned counsel for the appellant strongly contends before me that PW1 was not cross-examined by the first respondent at the first stage and the cross-examination was done by the insurance company. Since 170 petition has been dismissed by the Tribunal the right of the insurance company to cross-examine the person on negligence and quantum does not arise and therefore it is to be deemed that M.A.C.A. 627 OF 2007 -:3:- there is no legal cross-examination of PW1 and therefore there is only the unchallenged evidence of PW1 in chief examination that is available for scrutiny. There is force in the said contention and therefore the matter requires reconsideration by granting some time to the first respondent to recall PW1 and cross-examine him. Since it is being permitted if additional evidence can be produced by any of the parties that also may be permitted and it is desirable that one of the parties at least produce the refer report of the police just to understand what has been the result of the investigation done by the police. I am conscious of the fact that such a refer report may not have an absolute binding on the Court or the parties for the reason that a motor accident claims case has to be adjudicated just like a civil case on the preponderance of probabilities available before it. Therefore the award under challenge is set aside and the matter is remitted back with permission to the first respondent to file an application to recall the claimant and M.A.C.A. 627 OF 2007 -:4:- cross-examine him and further permit both the claimant as well as the first respondent to adduce both documentary and oral evidence in support of their respective contentions. The Tribunal, thereafter, shall dispose of the matter in accordance with law and let us hope the matter may not reach this Court for the 3rd time. Parties are directed to appear before the Tribunal on 1.9.08. M.N. KRISHNAN, JUDGE. ul/-