IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 MACA.No. 238 of 2008() ----------------------------- OPMV.201/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/PETITIONER: -------------------------------------- JOHNY GEORGE, S/O. GEORGE, KOLATHUPADAVIL HOUSE, MUTHIRAPUZHA BHAGAM, KONNATHADI KARA, KONNATHADI VILLAGE. BY ADV. SRI.RAINGE KODUVATH SRI.VIJU ABRAHAM SRI.JOY C. PAUL SRI.DOMINIC JOHNSON SMT.M.SRUTHY RESPONDENTS/ RESPONDENTS: ----------------------------------------------- 1. GEORGE, S/O. ANTONY, VALIYAPADAM HOUSE, EATTICITY ROAD BHAGAM, ANAKKAYAM KARA, KUNCHITHANNI VILLAGE, IDUKKI DIST. 2. JOY, KAKKADASSERY HOUSE, MACHIPLAVU P.O., ADIMALY, IDUKKI DISTRICT. 3. THE ORIENTAL INSURANC COMPANY LTD., REPRESENTED BY ITS BRANCH MANAGER, THIRUVALLA. 4. BENZE PAUL, S/O. PAULOSE, KOCHERIL HOUSE, MANNAMKALA, ADIMALY P.O.,IDUKKI. BY ADV. SRI.MATHEWS JACOB (SR), SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALY HEARD ON 02/07/2008, ALONG WITH MACA. NO.297 OF 2008 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== MACA No.238, 297, 353, 358, 390 & 509 OF 2008 ===================== Dated this the 2nd day of July 2008 JUDGMENT MACA 238 of 2008 is preferred by the driver of the jeep, who was the real owner on the date of the accident. MACA No.297 of 2008 is preferred by the owner of the jeep KL-7M/4262 for damages sustained to the jeep and the other appeals are preferred by the persons travelling in the jeep which met with the accident for compensation. The case of the appellants is to the effect that while the jeep was proceeding the driver of the jeep was able to notice that the lorry driven by its driver was coming in a high speed and therefore the driver of the jeep parked his jeep on the left side and in spite of the same the lorry came and hit forcibly on the jeep, as a result of which the jeep went backward to a distance of 15 meters and thereafter fell into the depth which resulted in damages to the vehicle and sustainment of injuries to the passengers. Unfortunately, neither the owner of the lorry nor the driver of the lorry has contested the case. 2. The insurance company would raise a contention that the accident had not taken place as alleged and therefore the claimants are not entitled to MACA 238/08 & con.cases -:2:- damages or compensation. The Tribunal, on a consideration of the materials available before it found in favour of the contention of the insurance company and dismissed all the cases. It is against that decision the present appeals are filed. 3. The points on which the Tribunal found against the claimants are: (1) In the records prepared as Exts.X1 to X6 there is no mention about the involvement of a lorry.(2) The Police has not registered a case and there was no intimation as well from the hospital and a private complaint has been filed to set the law in motion after 11 days. The Tribunal also held that when the owner was examined he would contend that the lorry which hit the jeep was in the place of accident for a period of 4 days and that the police has prepared a vehicle mahazar of the lorry and still it is not produced and that was also considered as a point to hold against the claimants. Learned counsel for the appellants would contend that the wound certificate which is prepared first and that had been referred to by the Tribunal as Exts.A5, A9, A11, A13 and A15 contains an endorsement 'jeep accident knocked by a lorry' whereas in documents Exts.X2 to X6 what is incorporated is only 'jeep accident'. The Tribunal also makes it clear that the wound certificate was prepared at 3.30 pm on the date of accident itself and the entries in Exts.X2 to X6 also are alleged to have been made at the same time. So MACA 238/08 & con.cases -:3:- there are two set of documents which would show that a lorry was also involved in the accident and that there are documents which just shows the jeep accident. Normally when such an accident takes place there would have been prompt action by somebody to set the law in motion. Learned counsel for the appellant would submit that the owner of the lorry is a powerful personality and it was his influence that had made the police not to register the crime. These are all matters which requires elaborate consideration. At the time of argument, learned counsel for the appellant brought to my notice the judgment in C.C.No.428 of 2003 dated 17.7.2006 which had not been produced before the Tribunal. A perusal of the said judgment would reveal that in the criminal case, Pws.1 to 11 were examined and Exts.P1 to P13 were marked. The accused was questioned under Section 313(b) of the Cr.P.C and the matter was taken up for judgment. At that point of time the driver of the lorry wanted to plead guilty which was allowed, he pleaded guilty and was sentenced to pay fine for the offence under Sections 279, 337 and 338 I.P.C. So regarding the factum of accident, materials are available in that case though there is a pleading of guilty at a later stage. Just because in one set of documents there is no mention of the involvement of the lorry one cannot jump into the conclusion that it was not there. Merely because the police has not registered a crime it will not also militate MACA 238/08 & con.cases -:4:- against the truthfulness of the case if it is there. It is true that something is wrong somewhere which requires consideration by the court below. Learned counsel has also brought to my notice a paper report on the next day of the accident, wherein there is a mention about the lorry. I am conscious of the fact that such a report is not acceptable in evidence unless the maker of the report is examined and the source of information is revealed. But, these are all matters which can be considered and looked into by the court below. Therefore taking into consideration the entire facts and circumstances of the case, I feel an opportunity can be again given to the claimants to establish the factum of accident. For that purpose they are at liberty to adduce both documentary as well as oral evidence . Needless to say that the insurance company is also given freedom to adduce rebuttal evidence in support of its contentions. Therefore, the awards under challenge are set aside. The Tribunal is directed to permit the appellants to produce additional evidence both documentary and oral in support of their respective contentions and the insurance company be permitted to adduce rebuttal evidence. The court, on materials available shall consider the question untrammeled by the observations contained in the previous awards passed by it and dispose of them in accordance with law. As per the direction of the court, notice to the insurance company was given to the Senior Counsel MACA 238/08 & con.cases -:5:- Sri.Mathews Jacob in these cases and he was also heard. Parties are directed to appear before the Tribunal on 12.8.2008. MACAs are disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-