IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 MACA.No. 2112 of 2007(A) ----------------------- OPMV.537/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/PETITIONER: ------------------------------------- SINOJ PAUL, AGED 26, S/O.PAULOSE, MUTTOM THOTTIL HOUSE, KIZHAKKAMBALAM KARA, KIZHAKKAMBALAM VILLAGE. BY ADV. SRI.NELSON J.MANAYIL RESPONDENTS/RESPONDENTS: ---------------------------------------------- 1. JOY VARGHESE, PANGODAN HOUSE, MORAKKALA KARA, KUMARAPURAM P.O. 2. PAREETH K.M., KOYAMPARAMBIL, KUMARAPURAM P.O. 3. NATIONAL INSURANCE CO. LTD., ALUVA. 4. ADDL. R4: NATIONAL INSURANCE CO. LTD., BRANCH PERUMBAVOOR. ADDL. R4 IS IMPLEADED AS PER ORDER DATED 13.06.2006 IN I.A.4242/2005. ADDL. R4 IS IMPLEADED AS PER ORDER DATED 13.06.2006 IN I.A. 4242/2005 BY ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. ------------------------------ M.A.C.A. No.2112 of 2007 ------------------------------ Dated this the 17th day of September, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal , Perumbavoor in O.P.(MV) No. 537/2000. The Claimant was a pillion rider in a motorbike and has sustained injuries in a road accident, on account of the collision between the bike and the bus. Originally, National Insurance Company, Aluva was impleaded as the insurer of the bus and subsequently, it was revealed from para 3 of the award that National Insurance Company, Perumbavoor was impleaded and R3 was deleted from the party array. 2. On a perusal of para 7 of the award would reveal that it was the deleted party, who was permitted to contest the case under Section 170 of the Motor Vehicles Act. Unfortunately, the 4th respondent really the insurer of the bus had been entered appearance, but not filed any vakkalath. The case is proceeded as if R3 has something to do with the accident. The Tribunal dismissed the claim petition on the ground that the accident took place in the road accident, having a width of 5 meters M.A.C.A. No.2112/ 2007 2 and that the bus was coming from south to north and the motor cycle in the opposite direction. It is also seen that as per the scene mahazar, the place of accident is about 1.5 meters east from the drainage situated on the western side or in other words the accident as per the scene mahazar is on the western side of the road. The correct side of the bus if place of accident is correct, is on the correct side and the Motor Cycle is on the wrong side. The learned counsel would submit that this cannot be correct in the light of the fact that as per the motorcycle inspector's report, it is the right side of the bus that has got damaged and ordinarily a bus is having a width of about 2.4 meters. Further, he was also shown me a judgment of the Judicial First Class Magistrate Court, Kozhikode, in C.C. No.65/2000, wherein the driver of the bus had been convicted under Section 279 and Section 337 of the Indian Penal Code. But this has not taken as exhibited before the Tribunal. So it is a matter which requires reconsideration and the place of scene mahazar could not be a conclusive about the factum of negligence, if other materials are available. So, I find this is a fit case where an opportunity has to be given to the claimant. M.A.C.A. No.2112/ 2007 3 3. Therefore, the award under challenge is set aside and the matter is remitted back to the Tribunal for fresh consideration and the National Insurance Company, Perumbavoor is permitted to file the application under Section 170 of the Motor Vehicle Act to contest the matter on merit and thereafter the parties can be permitted to produce both documentary as well as oral evidence in support of their respective contentions in order to dispose of the matter in accordance with law. Needless to say the Insurance Company has to file written statement first for the purpose of contesting the case. Parties are directed to appear before the Tribunal on 3/11/2008. M.N. KRISHNAN, JUDGE scm