IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 MACA.No. 336 of 2004() ---------------------- OPMV.2032/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT/PETITIONER: ------------------- JAMES. P.A., PALAKKUZHIYIL HOUSE, KOTHANALLOOR P.O. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENTS: ----------------------- 1. GEORGE JOSEPH, THEKKEKARA (THEKKEKAROTTU) KOTHANALLOOR P.O. 2. K.J. THOMAS @ KUNJUMON, KOOTTATHANPARAMBIL, KOTHANALLOOR P.O. 3. UNITED INDIA INSURANCE CO.LTD., REPRESENTED BY THE DIVISIONAL MANAGER, KOTTAYAM. BY ADV. SRI.N.S.MOHAMMED USMAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/06/2008, ALONG WITH MACA NO. 337 OF 2004 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.A.C.A. Nos. 336, 337, 356 & 420 OF 2004 --------------------- Dated this the 20th day of June, 2008 JUDGMENT The counsel for the Insurance Company who is already appearing in two matters is permitted to file vakalath in the other two cases also. Let the name be shown in the cause list. 2. These appeals are preferred against the finding of the Tribunal that the claimants in all these applications are not entitled to compensation on the ground that the accident took place on account of the negligence of the lorry driver. A brief reference to the facts would reveal that the contention of the claimants is to the effect that they were travelling in a jeep and on account of the rash and negligent driving of the jeep driver the accident had taken place and therefore they have claimed compensation. The Tribunal without any oral evidence had arrived at a decision that on going through the scene mahazar the jeep is found to be on the correct side and therefore the Tribunal found negligence on the lorry driver and dismissed those applications. The Tribunal also did not consider in favour of the claimants also the decision relied Kaushnuma Begum v. New India Assurance Co. Ltd. [2001 (1) KLT 408 (SC)]. When MACA No. 336/04 & Conn.Cases 2 the question of negligence is involved in a matter, I feel it is desirable that an opportunity is given to all concerned for adducing evidence to prove the factum of negligence. It is also equally desirable, when the court discusses the issue whether the jeep driver is negligent or the lorry driver is negligent, that both the drivers, owners and Insurance Company are made party to the proceeding so that after hearing all concerned and verifying the evidence available the Tribunal can arrive at a decision regarding the negligence aspect. Unfortunately, in these cases the claimants did not choose to adduce oral evidence before the Tribunal, which I am told was not permitted. Therefore, I feel that an opportunity can be given to the claimants. 3. Therefore the award under challenge is set aside and the matter is remitted back to the Tribunal, with the following directions. (i) If the claimants so choses they may be permitted to implead the owner, insurer and driver of the lorry as well. (ii) The claimants are permitted to adduce oral evidence as well as any further documentary evidence in support of their contentions. MACA No. 336/04 & Conn.Cases 3 (iii) In order to have a proper resolution, if any, amendment to the pleading or filing of additional written statement is necessary that also may be permitted. It is also made clear that if the owner of the lorry, the driver and insurer are impleaded they may also be permitted to file written statements. After hearing all concerned, the Tribunal shall take a decision and also to apply its mind to find out if the negligence is not proved whether the decision reported in Kaushnuma Begum v. New India Assurance Co. Ltd. [2001 (1) KLT 408 (SC)] will come to their rescue. Parties are directed to appear before the Tribunal on 24.7.08. M.N.KRISHNAN, JUDGE vps MACA No. 336/04 & Conn.Cases 4 MACA No. 336/04 & Conn.Cases 5