IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 MACA.No. 2198 of 2006() ----------------------- OPMV.476/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/CLAIMANT -------------------------------- K.S.MOHAMMED ALI, SON OF SYED MOHAMMED, KARUMAKKTTU HOUSE, POST PERUMBAVOOR, KUNNATHNAD TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.M.P.MOHAMMED ASLAM RESPONDENTS/RESPONDENTS: --------------- 1. C.M.AMEER ALI, S/O.MAMMU HAJI, GOVERNMENT BOY'S HIGH SCHOOL ROAD, POST PERUMBAVOOR, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 2. P.M.R.MUSTHAFA, P.M.R.HOUSE, NEAR MUNICIPAL LIBRARY, POST PERUMBAVOOR, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 3. NATI0NAL INSURANCE CO. LTD., MULLAPPALLI BUILDING, A.M.ROAD, POST PERUMBAVOOR, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON 26/06/2009 DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No. 2198 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th day of June, 2009 JUDGMENT Joseph Francis, J. This appeal is filed by the petitioner in O.P.(M.V.) No. 476 of 1997 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. Respondents 1 to 3 are respondents 1 to 3 in that Original Petition. That is a petition filed under Section 166 of the Motor Vehicles Act. 2. The case of the petitioner is briefly as follows. On 23.10.1996, the petitioner was travelling in a Tata Sumo Car bearing No.TN 37/K 300 for business purpose from Perumbavoor to Trivandrum along with the second respondent, Mustafa, who was driving that vehicle. When they reached near the C.R.P.F. Camp at Pallippuram, at about 1'o clock in the night, due to the negligence of the driver, the vehicle overturned and M.A.C.A.No. 2198 of 2006 2 thereby the petitioner and other passengers in that vehicle sustained injuries. Immediately after the accident, the petitioner was taken to the hospital. The accident was due to the rash and negligent driving of the second respondent. The first respondent was the owner of the vehicle and the third respondent was the insurer. 3. In the Claims Tribunal, the second respondent remained ex parte. The first respondent filed written statement contending that the accident was not due to the negligence of the second respondent and that the compensation claimed is excessive. The third respondent filed written statement admitting the policy of the vehicle bearing No. TN 37/K 300 and contends that that vehicle is not involved in the accident. 4. In the Claims Tribunal PWs. 1 to 5 were examined and Exts.A1 to A9 and X1 to X3 were marked. The Tribunal, on considering the evidence, dismissed the petition on finding that the petitioner failed to prove negligence on the part of the second respondent. Against that award, the petitioner filed this appeal. M.A.C.A.No. 2198 of 2006 3 5. Heard the learned counsel for the appellant and the learned counsel for the contesting respondents. 6. It is now well settled position of law that while considering the claim petition, the Claims Tribunal is required to hold an enquiry and not to act as a criminal court so as to find whether the claimants have established the occurrence beyond any shadow of doubt. In the enquiry, if there is prima facie evidence of the occurrence, there is no reason to disbelieve such evidence. In the present case, no criminal case was registered with regard to the accident. Ext.X3 is the copy of the G.D. of Mangalapuram Police Station dt. 23.10.1996 stating that yesterday at 1'o clock in the night near Pallippuram C.R.P.F. Camp a Tata Sumo Car bearing No.TN 37/K 300 skidded and turned turtle to the foot path on the eastern side of the road and the vehicle was damaged. Since it occurred accidentally, as requested by the second respondent Mustafa, no crime was registered. 7. PW5, Pareed, is an eye witness to the occurrence, who was travelling in the car. PW5 deposed that on 22.10.1997 at about 7 p.m. M.A.C.A.No. 2198 of 2006 4 himself, the petitioner and the second respondent and son of the sister of Mustafa were travelling in the Tata Sumo Car bearing No.TN 37/K 300 from Perumbavoor to Trivandrum and when they reached at Pallippuram in Trivandrum at about 1 a.m., due to the rash and negligent driving of the second respondent the vehicle turned turtle. The petitioner was thrown to the road and he became unconscious. PW5 swears that the petitioner was admitted in the Medical College Hospital, Trivandrum and at about 2 p.m. his relatives came there and he was discharged from that hospital and he was admitted in the Sanjo Hospital, Perumbavoor. 8. PW5 deposed that the doctor, who treated the petitioner in the Medical College Hospital, Trivandrum gave a discharge slip, which was produced before the Sanjo Hospital. He identified Ext.X1(a) as the discharge card issued from the Medical College Hospital, Trivandrum. Ext.X1(a) is produced from Sanjo Hospital along with Ext.X1 treatment file of that hospital. In Ext.X1(a), which is issued from the Medical College Hospital, it is stated that the petitioner was M.A.C.A.No. 2198 of 2006 5 admitted in the hospital in connection with a road traffic accident on 23.10.1996 and was discharged on the same day. In that discharge card it is stated that the petitioner was referred to the local hospital for further treatment. Though no seal of the Medical College Hospital is seen in Ext.X1(a), the genuineness of that document cannot be doubted, as it contains the signature of the doctor, who issued it. In Ext.X1 file, the accident-cum-wound certificate issued from Sanjo Hospital is seen, which shows that the petitioner sustained injuries when the Tata Sumo Car fell into the side of a canal. 9. PW4, Dr. Kuruvilla Thomas, who was working as Chief Surgeon, Sanjo Hospital, deposes that he treated the petitioner, who was referred from the Medical College Hospital, Trivandrum. PW3 is the Branch Manager of third respondent National Insurance Company of Perumbavoor branch. He produced the file regarding the own damage claim for the Tata Sumo Car bearing No.TN 37/K 300, which met with an accident on 23.10.1996 at Pallippuram on the National Highway, which is within the limit of Mangalapuram Police Station of M.A.C.A.No. 2198 of 2006 6 Trivandrum District. The time of the accident as per that records is 1 a.m. Ext.X2 is the copy of the motor claim form submitted by the first respondent, Ameer Ali, before the National Insurance Company with regard to the damage caused to his Tata Sumo Car bearing No.TN 37/K 300. In Ext.X2 it is stated that on 23.10.1996, while going to Trivandrum the vehicle skidded near Pallippuram Police Training Camp and turned turtle. In Ext.X2 it is stated that the occupants of that vehicle sustained injuries in that accident. 10. Pw2 is Dr. Vincent Chakkiath, who was working as an Orthopedic Surgeon at Sanjo Hospital. He swears that on 23.10.1996 he examined the petitioner, who met with a road traffic accident and the petitioner was sent from Medical College Hospital, Trivandrum. 11. The petitioner was examined as PW1. He deposed that he was travelling in a Tata Sumo Car bearing No.TN 37/K 300 from Perumbavoor to Trivandrum and when that vehicle reached at Pallippuram at about 1 a.m. the car turned turtle due to the rash and negligent driving of the second respondent, who was driving the car M.A.C.A.No. 2198 of 2006 7 and as a result of the accident, the petitioner sustained injuries. The evidence on record shows that the vehicle involved in the accident went out of control of the second respondent, the driver, and therefore it is for the second respondent to explain how the accident happened. The second respondent did not go to the witness box. Therefore an adverse inference can be drawn against him. Since the testimony of PW1 is corroborated by the testimony of PWs 2 to 5 and the documents referred above, we are of the view that the accident was due to the rash and negligent driving of the second respondent, who was driving the Tata Sumo Car bearing No.TN 37/K 300. Therefore, the Claims Tribunal went wrong in finding that the petitioner has not proved the accident. As the Tribunal has not assessed the compensation payable to the petitioner, the case has to be remanded back to the Claims Tribunal, for the purpose of assessing the compensation payable to the petitioner. 12. Accordingly, this appeal is allowed and the award dismissing O.P.(M.V) No. 476 of 1997 on the file of the M.A.C.T., Perumbavoor M.A.C.A.No. 2198 of 2006 8 is set aside. The said petition is remanded to the M.A.C.T., Perumbavoor for assessing the compensation payable to the petitioner. Sufficient opportunity must be given to both sides to adduce further evidence, if necessary. The parties are directed to appear before the M.A.C.T., Perumbavoor on 11.8.2009. The parties are directed to suffer their respective cost in this appeal. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm