IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 MACA.No. 1846 of 2010(B) ------------------------------------- [O.P(MV).NO.1725/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM] .................... APPELLANT/ORIGINAL PETITIONER: ----------------------------------------------------- K.N.BIJU,AGED 28,S/O.NARAYANAN, KAITHAVALAPPIL HOUSE, P.O SOUTH PARUR, ERNAKULAM DISTRICT. BY ADVS. SRI.K.K.APPU, SRI.T.M.JOSEPH SHYLAN. RESPONDENT/3RD RESPONDENT: -------------------------------------------------- THE NATIONAL INSURANCE CO. LTD., M.G.ROAD, ERNAKULAM. BY ADV. SMT.SARAH SALVY. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A.C.A.No. 1846 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 9th day of February, 2011 JUDGMENT Barkath Ali, J. Appellant is the claimant in O.P.(MV) No.1725 of 2005 on the file of the Motor Accidents Claims Tribunal, Ernakualm. In this appeal he challenges the judgment and award of the Tribunal dated January 1, 2010 dismissing the O.P. filed by him under section 166 of the Motor Vehicles Act claiming a compensation of Rs.4,40,000/- for the loss caused to him on account of the injuries sustained by him in a motor accident . 2. The case of the claimant, as testified by him as PW1 before the Tribunal and as stated in the O.P., was that on December 31, 2004 at about 8 p.m. while he was crossing the road at Vytila Junction, Ernakulam, he was knocked down by a van bearing registration No.KL7-AK 9965 causing him very serious injuries. Alleging negligence against the 1st respondent driver of the offending van, he MACA 1846/2010 2 filed the O.P. before the Tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.4,40,000/- against respondents 1 to 3, the driver, owner and insurer of the offending vehicle. 3. Respondents 1 and 2, the owner and driver of the offending van, remained absent before the Tribunal. The 3rd respondent insurer of the offending van filed a written statement admitting the policy but denied the involvement of the offending vehicle in the accident. PWs. 1 to 3 were examined and Exts.A1 to A10 were marked on the side of the claimant. Ext.B1 was marked on the side of the respondents. On an appreciation of the evidence, the Tribunal found that the claimant has failed to prove the involvement of the offending vehicle in the accident and dismissed the O.P. The claimant has now come up in appeal challenging the said finding of the Tribunal. 4. Heard learned counsel for the claimant and the learned counsel for the Insurance Company. 5. The only question which arise for consideration is MACA 1846/2010 3 whether the finding of the Tribunal that the claimant has failed to prove the involvement of the vehicle in the accident and consequently dismissing the O.P. can be sustained. 6. For several reasons we are inclined to hold that the above finding of the Tribunal cannot be sustained. PWs.1 to 3 were examined and Exts.A1 to A10 were produced by the claimant before the Tribunal. PW1 is the claimant who testified in terms of the O.P. He has testified in a convincing manner before the Tribunal that the van which knocked him down was having registration No.KL7 AK 9965 and that the accident occurred due to negligence of the 1st respondent. Nothing was brought out in cross-examination to discredit his evidence. It was not brought out in his cross- examination that he has any enmity towards respondents 1 and 2 to make a false claim against them. His evidence is supported by PWs.2 and 3. 7. PW2 is the person who made the First Information Statement. He has given a different number of the vehicle to the police, as seen from Ext.B1 copy of the F.I.S. But MACA 1846/2010 4 admittedly he is not an eye witness. Therefore, his version regarding the number of the vehicle involved in the accident may be a mistake. PW3 is an eye witness to the incident he gave the correct number of the vehicle as KL7 AK 9965 The trial court disbelieved his version as he was not able to speak about the colour of the offending vehicle. But he has no enmity towards respondents 1 and 2, the driver and owner of the offending vehicle. No serious discrepancies were brought out in cross-examination to discredit his evidence. Therefore, we are inclined to believe the evidence of PWs.1 to 3 regarding the accident and the involvement of the offending jeep in the said accident. 8. The evidence of PW1 is supported by Ext.A2 copy of the police charge. The police charged the case against the 1st respondent. In that case also the correct number of the vehicle was shown as KL7/AR 996. Respondents 1 and 2 did not come forward to say that their vehicle was not involved in the accident. For all these reasons, we are inclined to set aside the finding of the Tribunal that the MACA 1846/2010 5 claimant has failed to prove the involvement of the offending vehicle in the accident and hold that on December 31, 2004 at about 8 p.m. he was knocked down by the offending van as alleged by the claimant. 9. Claimant was a pedestrian. Therefore, in the absence of any evidence on the part of the respondents, we hold that the accident happened due to the negligence of the first respondent. It follows that the claimant is entitled to compensation from respondents 1 to 3 who are admittedly the driver, owner and insurer of the offending vehicle. 10. The Tribunal has not assessed the quantum of compensation due to the claimant. Therefore, the matter has to be remanded to the Tribunal for assessing the quantum compensation due to the claimant. 11. In the result, the impugned award of the Tribunal dismissing the O.P. is set aside and the matter is remanded to the Tribunal for fixing the quantum of compensation due to the claimant. It is made clear that the parties are entitled MACA 1846/2010 6 to adduce further evidence before the Tribunal. The Tribunal shall dispose of the O.P. as early as possible but not later than six months from the date of receipt of a copy of this judgment. The parties shall appear before the Tribunal on April 20, 2011. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE mn.