IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 MACA.No. 2921 of 2008() ----------------------- OP(MV).1725/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE APPELLANTS/PETITIONERS: -------------- --------------- 1. BABY GIRIJA, W/O. LATE M.K. VIJAYAN, "VIJAYAGIRI", KOMASSERY PARAMBA, KUNNAMANGALAM, KOZHIKODE DISTRICT. 2. ARUNDHADHI, D/O. LATE M.K. VIJAYAN, DO.DO. 3. ASWATHI, D/O. LATE M.K. VIJAYAN, DO.DO. 4. DEVADATH VIJAY, S/O. LATE M.K. VIJAYAN, DO.DO. (APPELLANTS 2 TO 4 ARE MINORS AND REPRESENTED BY THEIR MOTHER 1ST APPELLANT) BY ADV. SRI.V.KRISHNA MENON RESPONDENTS/RESPONDENTS: --------------------------------- 1. THAMEEM R.C., S/O. ABDURAHIMAN, AEROTH CHALIL HOUSE, P.O. KODUVALLY, KOZHIKODE DISTRICT. 2. THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO. LTD., SHAFEER COMPLEX, 6/975 D, OPP YMCA, KANNUR ROAD, KOZHIKODE. R2 BY ADVS. M/S.KKM.SHERIF & A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. = = = = = = = = = = = = == == = = = M.A.C.A. NO. 2921 OF 2008 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 18TH DAY OF DECEMBER, 2009. J U D G M E N T Raman, J. Appellants are the claimants in O.P. (MV) 1725 of 2004 on the file of the Motor Accidents Claims Tribunal, Kozhikode. The claim was preferred claiming compensation for the death of the husband of the first appellant and father of appellants 2 to 4, in a motor accident occurred on 30.7.2004. It was the case of the appellants that while the deceased was riding a motor cycle, a jeep, bearing No. KL 1--D/8444 came from the opposite direction, hit against the motor cycle causing serious injuries to him. He succumbed to the in juries sustained, on the same day while undergoing treatment in the hospital. In the application, however, the appellants stated that it was a head on collision and produced Ext.A1 FIR, which on a perusal, shows that the information conveyed as per Ext.A1 is that the jeep was driving in a rash and negligent manner. But what happened after the investigation could be known if the charge sheet is produced. None was examined on the side of the appellants nor any independent evidence was let in to prove the negligence aspect of MACA 2921/2008 2 the case. The Tribunal, taking note of the statement contained in the petition that it is a head on collision, apportioned the liability between the deceased and jeep driver in equal proportion. Though a compensation of Rs. 11,30,080/- was awarded, the appellants were found entitled only to 50% of the same. Aggrieved by the said finding, the claimants have come up in appeal. 2. The appellants, however, produced a copy of the post mortem report, the salary certificate of the deceased, legal heir certificate etc. in proof of their claim. That the accident occurred on the alleged day and the rider of the motor cycle (the husband of the first appellant) died in the said accident are beyond any dispute. That there was negligence on the part of the jeep driver is also not seriously in dispute since even as per the findings of the court below, there was negligence on his part. But according to the appellants, the jeep driver was solely negligent and therefore, the Tribunal ought not have restricted the Award amount to 50%. It is also pointed out that while calculating the amount towards dependency, the Tribunal calculated the dependency for eleven years on the basis of the salary which comes to an amount of Rs. 10,48,080/- and for the remaining period of four years, it is taken as Rs. 64,000/-. According to the appellant, it will be Rs. 96,000/-. MACA 2921/2008 3 3. In the view we are taking, it is not necessary to go into the meticulous screening of the amounts awarded. Since we are remanding the matter for fresh consideration, if there is any mistake in the calculation or claim for enhancement under any other head, it is open to the appellants to raise their contentions before the Tribunal. The appellants will be given an opportunity to prove the negligence aspect of the matter and to adduce better evidence, if any, with respect to the quantum. We have noticed that the driver of the jeep had remained ex parte. Still, in the absence of any evidence, we are constrained to remand the matter for a fresh consideration. 4. In the result, the finding that the rider of the motor cycle was equally negligent and the apportionment of the liability equally between the rider of the motor cycle and the jeep driver is set aside and the matter is remitted to the Tribunal. It is open to both sides to adduce evidence both oral and documentary in respect of their contentions raised in the appeal. The parties shall appear before the court below on 18.2.2010. P.R. RAMAN, (JUDGE) P.R. RAMACHANDRA MENON, (JUDGE) KNC/-