IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 MACA.No. 766 of 2009() ---------------------- OPMV.2661/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): PETITIONER ------------------------ NIZAR MUHAMMED M.K., S/O.SHAIKH MUHAMMED "NISHANAS",YMCA ROAD, KOZHIKODE. BY ADV. SRI.K.PRAVEEN KUMAR RESPONDENT(S): RESPONDENT ------------------------- 1. P.V.CHANDRASEKHARAN, S/O.LAE PARUKUTTY VARASSIAR, PARVATHY VIHAR, THACHINANGADAM P.O. PANDIKKAD, MALAPPURAM DISTRICT. 2. ABDUL SAMD,S/O.ABDURAHIMAN, KARALANGOTT HOUSE, FEROKE COLLEGE P.O. KOZHIKODE. 3. THE NEW INDIA ASSURANCE CO.LTD., VARIKODAN BUILDING, NILAMBUR ROAD, MANJERI. ADV. SRI.K.M.FIROZ FOR R2 SMT.T.C.SOWMIAVATHY FOR R3 SRI.K.V.PAVITHRAN FOR R1 SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL FOR R1 SRI.E.M.UNNIKRISHNAN (MANJERI) FOR R1 SRI.T.P.SAEED FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sou. K. HEMA, J ---------------------- M.A.C.A.766 OF 2009 ----------------------------------- Dated 21st October, 2011 J U D G M E N T Appellant filed a petition before the Motor Accident Claims Tribunal ('Tribunal' for short) claiming compensation under section 166 of the Motor Vehicles Act, 1988 ('the act' for short). According to appellant, he sustained injury in a motor accident. while he was travelling in a scooter, on a public way, the car driven by second respondent in a rash and negligent manner hit against scooter and he sustained injuries. He claimed compensation from the owner (R1), driver (R2) and the insurer of the car (R3) at Rs.75,000/- under various heads. 2. First respondent was set exparte. Second respondent who is driver of the car specifically contended that he is not responsible for the accident. Appellant who was not having driving license had driven the vehicle negligently and caused the accident. The version of the appellant as PW2, before the Magistrate court itself will clarify this aspect. Even though he was cited as witness, as rider of the scooter during the accident, he deposed in court that he never drove the vehicle etc. M.A.C.A. No.766/09 2 3. No oral evidence was adduced before the Tribunal. Ext.A1 to Ext.A4 were marked on the side of appellant before the tribunal. Respondent did not adduce any evidence. The Tribunal held that appellant failed to prove his case and dismissed the application. This appeal is filed challenging the said dismissal order. 4. Heard learned counsel for appellant and third respondent. It was argued by learned counsel for appellant that the Tribunal found that in column no.28, petitioner raised a convenient contention that he was travelling in a scooter, without making it clear whether he was the rider of the vehicle or whether he was a pillion rider. Learned counsel for appellant pointed out that in column no.10, appellant has very clearly stated that he was travelling in a scooter as a pillion rider. Therefore, findings are vitiated, it is submitted. 5. It was also submitted that Ext.A1 is shown as the final report in the appendix of the impugned award, but it was held by the Tribunal that charge sheet is not produced. All the relevant document were produced and those were sufficient to make out a case that second respondent was rash and negligent in his driving and hence, the order of dismissal may be set aside, it is M.A.C.A. No.766/09 3 submitted. 6. Learned counsel appearing for third respondent pointed out that second respondent took up a specific plea that appellant was not a pillion rider but he himself was riding the vehicle at the relevant time and he was not having driving licence. But according to him, a case was wrongly registered against second respondent. In spite of this specific plea appellant has not adduced any evidence except producing certain documents relating to criminal case. Therefore, there is no reason to interfere with the order dismissing the application, it is submitted. 5. On hearing both sides, I am satisfied that Tribunal cannot be found fault with in dismissing the application for want of evidence. In spite of plea by second respondent, that appellant was the rider at the relevant time and he was not having driving licence and case was wrongly registered against second respondent etc., appellant failed to adduce any evidence to establish the fact asserted by him. 6. It is also to be noted that in the written statement, second respondent has taken a specific plea that while examined as PW2 in the criminal court, appellant gave evidence inconsistent with prosecution case. As rightly held by Tribunal, appellant has M.A.C.A. No.766/09 4 not even indicated whether second respondent was convicted or acquitted 7. However, learned counsel for appellant submitted that he may be given an opportunity to adduce evidence. Since Ext.A1 to Ext.A4 were marked without any objection, he was under the impression that those documents would suffice to prove his case. On hearing both sides and on consideration of the various facts and circumstances of the case, I find that an opportunity can be given to appellant to adduce evidence on payment of cost. Hence the following order is passed: 1. The impugned award is set aside. 2. The case is remanded to the Tribunal for fresh consideration and disposal, in accordance with law, on condition that appellant will pay Rs.3,000/- as cost to third respondent, within two weeks from today, failing which this appeal will be treated as dismissed. 3. Parties shall appear before the Tribunal on 28.11.2011. This appeal is allowed on condition. K. HEMA, JUDGE. Sou. // True copy //