IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 24TH JUNE 2008 / 3RD ASHADHA 1930 MFA.No. 162 of 2003() --------------------- OPMV.1331/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT: PETITIONER: ----------------------------------------- K.A.JAMAL, AGED 34 YEARS, S/O. ABDUL RAHIMAN, KALAYIL PARAMBIL VEEDU, KULAYITTIKKARA P.O., ARAYANKAVU, (VIA) MULANTHURUTHY. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.NITHYA.K. RESPONDENTS: RESPONDENTS: -------------------------------------------------- 1. K.N.ANAND S/O. NARAYNAN, NO. 52, BIG STREET, TRIPLICANE, MADRAS-5. 2. RAPHEAL S/O. RAMASWAMI, H.NO. 62, 4TH AVENUE, ASOK NAGAR, MADRAS CITY. 3. THE UNITED INDIA INSURANCE CO. LTD., COCHIN-16 4. THE NATIONAL INSURANCE CO. LTD., ALUVA. BY ADV. SRI.LAL GEORGE - R4 SRI.VARGHESE P.THOMAS - R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J ===================== MFA No.162 OF 2003 ===================== Dated this the 24th day of June 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Ernakulam in O.P.(MV)No.1331/196. It is the case of the claimant, who is the appellant before me, that while he was driving a jeep, a mini lorry came from behind and hit on the back of the jeep, as a result of which he lost control and hit on an electric post resulting in sustainment of injuries. The Tribunal dismissed the case on the ground that in order to prove the hit from behind, the Asst.Motor Vehicle Inspector's report was not produced. The Tribunal could have directed the parties to produce the same instead of dismissing it without giving an opportunity. Therefore the said finding requires interference. 2. Similarly, the Tribunal found that the case is bad for non- impleadment of the correct insurer and insured of the jeep. I feel the said finding is erroneous for the reason that if negligence is found on the claimant also then it will be his contributory negligence and therefore for the contributory negligence one cannot ask the owner and the insurance MFA 162/2003 -:2:- company of the jeep to pay the amount. So the said finding is also vacated. Therefore the award under challenge is set aside and the matter is remitted back to the Tribunal for fresh consideration after affording opportunity to the claimant to produce the Motor Vehicle Inspector's report and also the additional evidence, if necessary. Needless to say that the insurance company of the mini lorry also be permitted to produce documentary evidence in support of its contentions. The claimant shall also take out notice to the driver of the mini lorry in the court below before proceeding further with the matter. Parties are directed to appear before the court below on 31.7.2008. MFA is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-