IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR WEDNESDAY, THE 2ND JANUARY 2008 / 12TH POUSHA 1929 MFA.No. 1440 of 2001() --------------------------------- OPMV.132/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT - PETITIONER: ------------------------------------ KARUNAKARA PILLAI, S/O. SANKARA PILLAI, CHENNAMALAL HOUSE, KANAMALA VILLAGE KANAMALA KARA, PAMBAVADAY. (DIED) ADDITIONAL APPELLANTS IMPLEADED: ----------------------------------------------------- 2. THANKAMMA, W/O. KARUNAKARA PILLAI, CHENNAMALA, KANAMALA P.O., MOOKKENPETTY, KOTTAYAM DISTRICT. 3. REGHUNATHAN PILLAI, S/O. KARUNAKARA PILLAI, CHENNAMALA, CHITHRAPURAM, MANKULAM P.O., PERUMPAMKUTTU, IDUKKI. 4. VINOD KUMAR, S/O. DO. CHENNAMALA, KANAMALA, P.O., MOOKKENPETTY, KOTTAYAM. 5. SURESH C.K. S/O.DO. DO.DO. 6. C.N. RAJAN PILLAI, S/O. DO., MANJAKKAL HOUSE, CHIRAKKADAVU EAST P.O., CHIRAKKADAVU, KOTTAYAM DISTRICT. 7. C.N. OMANA, D/O. DO. PICHAKAPPALLIYIL HOUSE, DO. DO. LRS. OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 7 VIDE ORDER DATED 8.8.2007 IN I.A. NO.1555 OF 2006. BY ADV. SRI.MATHEW JOHN (K) SRI.BABY THOMAS RESPONDENTS - RESPONDENTS: --------------------------------------------- 1. ABDUL SAMAD, S/O. BAVA JAMAL, THANAMAKKAL HOUSE, KANJIRAPPALLY VILLAGE AND KARA, KANJIRAPPALLY P.O., 2. JAMAL, S/O. BAVA, DO. DO. 3. UNITED INDIA INSURANCE CO. LTD., PONKUNNAM BRANCH, REPRESENTED BY ITS BRANCH MANAGER, PONKUNNAM DEVASAKAYAM BUILDING, PONKUNNAM P.O. 4. THE SECRETARY, KANJIRAPPALLY AUTORIKAHAW WORKERS CO-OPERATIVE SOCIETY LTD., NO.K-680. 5. P. H. JALEEL, PULIMOOTTIL HOUSE, K.E. ROAD, KANJIRAPPALLY. BY ADV. SRI.J.MATHAPPAN SRI.V.K.SUNIL SRI.AJEY THOMAS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = M.F.A. NO. 1440 OF 2001 = = = = = = = = = = = = = = = = = = = Dated this the 2nd day of January, 2008 J U D G M E N T -------------------- Petitioner in O.P(MV) No.132 of 1995 on the file of the Motor Accidents Claims Tribunal, Pala, is the appellant. 2. On 7.4.1990 petitioner sustained injuries in a motor vehicle accident. He filed the O.P. claiming compensation. It was averred that while the petitioner was walking along the southern side of the public road an Autorikshaw bearing Reg. No.KL-5/4153 driven by the first respondent came in a rash or negligent manner and hit against the person of the appellant causing injuries to him. It was averred that the second respondent was the owner of the vehicle and the third respondent was the Insurer. Respondents 1 and 2, though filed written statement, did not contest the case. Insurer filed written statement contending that the insured was the Secretary, Kanjirappally Autorikshaw Workers Co-operative Society Ltd. No.K/680 and not the second respondent. It was also contended that there was no negligence on the part of the M.F.A. NO. 1440 OF 2001 -: 2 :- first respondent, driver of the vehicle. Subsequently, the petitioner impleaded the Secretary of the Society as the 4th respondent. Fifth respondent was impleaded as the driver of the offending vehicle. Insurer filed an additional written statement contending that the 5th respondent was not the driver of the vehicle at the time of accident. At the time of oral evidence, petitioner gave evidence to the effect that the vehicle was driven by the first respondent and not by the 5th respondent. Police had registered a case against the first respondent and after investigation final report was also filed. The Tribunal took a view that the petitioner has no consistent case and he failed to prove as to who was the actual driver of the vehicle. The claim petition was dismissed. Challenging that award, this appeal is filed. Pending appeal, appellant died and his legal representatives were impleaded as additional appellants. 3. It is true that the petitioner was not able to adduce positive evidence that the vehicle was driven by the first respondent. Material on record shows that police had registered a case against the first respondent and final report M.F.A. NO. 1440 OF 2001 -: 3 :- report was filed alleging that the first respondent was the driver of the offending vehicle. 4. After hearing both sides, I am of the view that it is only just and proper that the appellants be given an opportunity to plead and adduce evidence as to who was the driver of the Autorikshaw at the relevant time. For that purpose the case has to go back. 5. In the result, the appeal is allowed. The award passed by the Tribunal in O.P(MV) No.132 of 1995 is set aside and the case is remanded. The Motor Accidents Claims Tribunal, Pala is directed to take O.P(MV) No.132 of 1995 back to file and dispose of the same afresh in accordance with law after giving a reasonable opportunity to the appellants to amend the pleadings and adduce evidence, if so advised. Parties are directed to appear before the Tribunal on 30.1.2008. K. PADMANABHAN NAIR, JUDGE. vsv K. PADMANABHAN NAIR, J. ===================== M.F.A. NO. 1440 OF 2001 ===================== J U D G M E N T ------------------------------------------- 2ND JANUARY, 2008