IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 MACA.No. 1833 of 2006() ----------------------- OPMV.1069/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER: -------------------------------------- JACOB, S/O.ISSAC, ANNAMMATHURUTHIL HOUSE, EROOR P.O., PIN 682 306. BY ADV. SRI.T.K.KOSHY SRI.JOSWIN THAMBI KUNNATH RESPONDENT(S): RESPONDENTS: --------------------------------------------------- 1. K.P.KRISHNAN NAIR, PRAKASH MOTORS,THODUPUZHA P.O. 2. P.S.MANOJ, S/O.SANKARAPILLAI, PAZHAMPILLIL HOUSE, 3. THE ORIENTAL INSURANCE CO.LTD., MUVATTUPUZHA. R1 BY ADVS.SRI.P.GOPALAKRISHNA MENON, SRI.M.JITHESH MENON. R3 BY ADV. SRI.S.MAMMU THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss A.K.BAHSEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A. No. 1833 of 2006 A =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 18th day of May, 2010 JUDGMENT Barkath Ali, J. In this appeal under Section 173 of Motor Vehicles Act, the claimant in O.P. (MV) No.1069 of 2002 of Motor Accidents Claims Tribunal, Muvattpuzha challenges the judgment and award of the Tribunal dated April 12, 2006, dismissing the Original Petition. 2. The facts leading to this appeal, in brief, are these:- On February 5, 2001 while the claimant was riding his motor cycle bearing registration No. KL-7M/6 along Muvattupuzha-Thodupuzha road and reached at Vengalloor, a bus bearing registration No.KBF 4668, driven by the second respondent, came at high speed from behind and dashed against the motor cycle. The claimant sustained serious injuries. According to the claimant, the accident occurred due to the rash and negligent driving of the offending bus by the second respondent. First respondent as the owner, second respondent as the driver and third MACA 1833/06 2 respondent as the insurer of the offending vehicle are jointly and severally liable to pay compensation to the claimant. Fourth respondent is the insurer of the motor cycle of the claimant. 3. Respondents 1 and 2, the owner and the driver of the offending bus remained absent. The third respondent, the insurer of the offending bus filed a written statement, admitting the policy and further contending that the accident occurred due to the negligence on the part of the claimant. The fourth respondent, insurer of the motor cycle, filed a written statement, contending that Tripunithura Branch of the Insurance Company has issued a policy in respect of the motor cycle. 4. PWs.1 and 2 and and Exts.A1 to A 8 were marked on the side of the claimant before the Tribunal. Ext.B1 to B3 were marked on the side of the respondents before the Tribunal. The Tribunal, on an appreciation of evidence, found that the accident occurred due to the negligence on the part of the claimant and dismissed the Original Petition. MACA 1833/06 3 The claimant has now come up in appeal challenging the said finding of the Tribunal. 5. Heard the counsel for the appellant/claimant and the counsel for Insurance Company. The fourth respondent, insurer of the motor cycle, was not made a party in this appeal, as no relief was claimed against the fourth respondent in the Original Petition. 6. The following points arise for consideration in this appeal:- 1) Whether the finding of the Tribunal that the accident occurred due to negligence on the part of the claimant and consequently, dismissing the Original Petition can be sustained? 2) Whether the claimant is entitled to any compensation and if so, what is the compensation? 7. Points (1) and (2):- The case of the claimant, as stated by him in the O.P. and as testified by PW1 before the MACA 1833/06 4 Tribunal, is that while the claimant was riding his motor cycle, the offending bus stopped at the bus stop and that when the claimant was trying to pass the bus, the driver of the bus suddenly and negligently took forward the bus and hit against the motor cycle of the claimant. On the side of the claimant, PW1, an independent witness to the incident, was examined. The Tribunal rejected the evidence of PW1 and held that the accident occurred due to negligence on the part of the claimant. 8. For several seasons we are inclined to hold that the Tribunal went wrong in disbelieving the evidence of PW1 and holding that the accident happened due to the negligence on the part of the claimant and that there was no negligence on the part of the second respondent. The Tribunal mainly relied on certain discrepancies in the evidence of PW1 and his statement before the police (Ext.A2) and taking into consideration the fact that the police has filed final report Ext.B1, exonerating the second respondent. Ext.A2 is not the certified copy of the First MACA 1833/06 5 Information Statement, as referred by the Tribunal, a copy of which is made available to us for perusal. It is a copy of the statement of PW1, which was recorded by the Investigating Officer under section 161 of the Cr.P.C. The statement was not proved by examining the person who recorded the same. It is seen from Ext.A2 that PW1 has stated to police that while the claimant was attempting to overtake the offending bus, an auto-rickshaw came from the opposite direction and when the claimant swerved the motor cycle, it hit on the back tyre of the bus. PW1 denied having made any such statement to the police. He has stated that the bus stopped at the bus stop and that when the claimant attempted to pass the bus, the driver of the bus negligently took the bus forward and the bus dashed against the motor cycle. Nothing was brought out in cross- examination to discredit his evidence. Ext.A2 cannot be taken into consideration, as the same was not proved by the Investigating Officer who recorded Ext.A2. That apart, the driver of the bus, second respondent, has not chosen to MACA 1833/06 6 come forward to testify that there was no negligence on his part or to show that there was negligence on the part of the claimant. 9. For all these reasons accepting the evidence of PW1, we find that the claimant has succeeded in proving that the accident occurred due to negligence on the part of the second respondent and that there was no negligence on the part of the claimant. 10. In the light of the above finding, the finding of the Tribunal that the accident occurred due to negligence on the part of the claimant and dismissing the Original Petition has to be set aside and the matter has to be remitted to the Tribunal to assess the compensation due to the claimant. 11. In the result, the impugned award is set aside and the matter is remanded to the Tribunal to assess the compensation due to the claimant. The Tribunal shall take the Original Petition to file and dispose of the same in accordance with law, after affording an opportunity to both parties to adduce evidence in support of their case. As this MACA 1833/06 7 case is of the year 2002, the Tribunal shall dispose of the Original Petition as early as possible, but not later than three months from the date of receipt of the records. The Registry shall forward the records to the Tribunal forthwith. The parties shall appear before the Tribunal on June 29, 2010. The appeal is allowed by way of remand. A.K. BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. mn.