IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 MACA.No. 538 of 2010(D) ----------------------------------- [O.P(MV).NO.725/2003 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM] .................... APPELLANT/2ND RESPONDENT: ----------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LIMITED, PERUMBAVOOR, NOW REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11. BY SRI.MATHEWS JACOB, SENIOR ADVOCATE, ADV. SRI.P.JACOB MATHEW. RESPONDENT/PETITIONER: ---------------------------------------- ANTONY, S/O.XAVIER, KAITHAVELIKKAKATH HOUSE, 18/745 VT LANE, PALLURUTHI, KOCHI-06. BY ADVS. SRI.K.A.SEBASTIAN, SRI.P.A.BAHULEYAN. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A. NO.538/2010-D: ORDER ON I.A. NO. 701/2010 IN M.A.C.A. NO.538/2010-D DISMISSED 15/12/2010. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 538 OF 2010 = = = = = = = = = = = = = = = Dated this the 15th day of December, 2010. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV) 725/03. The claimant, a police constable, sustained injuries in a road accident while he was riding his motorcycle. According to him an auto rickshaw came from the opposite direction, over took another motorbike and hit on his bike resulting in injuries to him. He was admitted in the Medical Trust Hospital. 2. On the contra, the insurance company would contend that the accident as stated in the petition has not taken place and according to them the claimant had hit on the grill of the bridge and that had resulted in the sustainment of injuries. The matter has been considered by the Tribunal. The Tribunal did not direct the parties to adduce evidence to explain the documents M.A.C.A. 538 OF 2010 -:2:- produced by them. The Tribunal itself expressed its own reservation against the accident but ultimately holds that being a welfare legislation it is inclined to pass an award. I am afraid such an approach cannot be made. 3. When a petition is filed u/s 166 of the M.V.Act there is a duty cast upon the Tribunal to allow the parties to adduce evidence, explain the situations and circumstances and thereafter decide the case on whose negligence the accident had taken place and if at all any accident had not taken place that also may be considered and then dispose of the matter. Here, after expressing so many views the Tribunal arrives at a decision. The Tribunal recorded that there is no oral evidence. It appears that a proof affidavit has been filed in this case. Whenever a proof affidavit is filed it is incumbent upon the Court to call the party and make him available for cross-examination by the other side. If it is not done the chief affidavit cannot be made use of by the Court. Therefore the whole matter requires reconsideration. I make it clear that I am not expressing M.A.C.A. 538 OF 2010 -:3:- anything on the merits of the documents but remand the case for the purpose of fresh consideration after permitting all concerned to adduce, especially oral and documentary evidence in support of their respective contentions and thereafter the matter be disposed of in accordance with law. I also make it clear the Tribunal is given the power to refix the quantum and dispose of the matter after recording the finding on all issues. Therefore the award under challenge is set aside and the matter is remitted back to the trial court for fresh disposal. Parties are directed to appear before the Tribunal on 24.1.2011. 4. Let the matter be disposed of within three months from the date of first appearance of the parties. Send back the records immediately. M.N. KRISHNAN, JUDGE. ul/-