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 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 MACA.No. 592 of 2006 ------------------------------------- (O.P.(MV)76/03 OF MACT, THODUPUZHA Dt.14-7-2004) APPELLANTS / APPELLANT: -------------------------------------------- NIZZAMOL, D/O. ABDUL KAREEM AGED 14 YEARS (MINOR), REPRESENTED BY FATHER AND NEXT FRIEND ABDUL KAREEM, PADINJAREKARAYIL HOUSE, CHERUTHONI KARA, VAZHATHOPPU VILLAGE. BY ADV. SRI.T.J.MICHAEL RESPONDENTS / RESPONDENTS: ------------------------------------------------------ 1. MURUKESAN P.S., S/O. SAHADEVAN, CHANDRALAYA, CHERUTHONI P.O., IDUKKI. 2. TOMY JAMES, NIRAPPATH HOUSE, KALLOORKADU P.O., MANJALLOOR PANCHAYATH, MUVATTUPUZHA. 3. NATIONAL INSURANCE CO. LTD., THODUPUZHA. ADV. SRI.M.A.GEORGE FOR R.3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/02/2010 ALONG WITH MACA NOS.487/05, 203/05 & 594/06, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.203, 487 OF 2005 & M.A.C.A.Nos.592, 594 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of February 2010 JUDGMENT Basheer, J. These appeals are directed against a common award passed by the Motor Accidents Claims Tribunal, Thodupuzha in respect of four claim petitions. 2. It is the admitted position that three passengers of a jeep, bearing registration No.KL-7K/2386, died and another passenger suffered serious injuries in the accident that took place on April 28, 2002 at about 4.30 a.m. at Ramanadhapuram in Tamil Nadu. According to the claimants, the jeep in which the deceased and the injured were travelling dashed against a tempo van which could not be identified. Compensation claimed in the four petitions under several heads. The owner and driver of the jeep remained absent and they were set ex parte. However, the insurance company admitted the policy coverage. But, it was contended that the accident took place because of the negligence of the driver of the tempo van. 3. PWs1 to 3 were examined and Exts.A1 to A18 were marked on the side of the claimants and Exts.B1 to B3 were produced on the side of the respondent. The Tribunal, after considering the oral and documentary evidence on record, held that there was no evidence to show that the driver of the jeep was responsible for the accident. In other words, the Tribunal took the view that there was no cogent evidence to establish the rashness and negligence on the M.A.C.A.Nos.203 , 487 OF 2005 & M.A.C.A.Nos.592, 594 OF 2006 :: 2 :: part of the driver. Accordingly, the claim petitions were dismissed. The above order passed by the Tribunal is under challenge in these four appeals. 4. We have been taken through the deposition of PW1 who was admittedly one of the passengers in the jeep. He categorically stated that the driver of the jeep had dozed off and strayed towards the middle of the road when a vehicle from the opposite side happened to hit against and died. No contra evidence was adduced by the respondents. It is true that in cross examination, it was brought out that PW1 had not stated before the police that the driver of the jeep had dozed off. But it has to be remembered that PW1 had given the statement before the police shortly after the accident in which his own wife and son had died and his daughter injured. One of the co-passengers had also died right in front of his eyes. Therefore, the anguish and agony that PW1 was going through at that time can be easily understood. More importantly, PW1 hails from Kerala. He might have given his statement only in Malayalam. It must have been taken down in Tamil by the Police Officer concerned. In that view of the matter also, we cannot attach too much significance to the mission, if any, in the statement given by PW1 in this regard. Even if he had not mentioned about the driver dozing off at the time of the accident, it cannot be said that such omission would be fatal. We have carefully considered the entire aspects of the matter. We are not all satisfied with the finding entered by the Tribunal. In our view, the Tribunal was not justified in holding that there was no negligence on the part of the driver of the jeep. 5. There is yet another aspect of the matter. Even according to the M.A.C.A.Nos.203 , 487 OF 2005 & M.A.C.A.Nos.592, 594 OF 2006 :: 3 :: respondent, it was a head on collision between the jeep and the tempo van. If that be the position, there is no reason why composite negligence to the extent of atleast 50% each cannot be fastened on the drivers of the two vehicles. We hasten to add that it is only a prima facie impression which we have formed from the materials available on record. We make it clear that the above question has to be decided by the Tribunal after a careful evaluation of the evidence, which the parties may be at liberty to adduce further, if they choose to do so. Anyhow, we have no hesitation to hold that the entire matter needs reconsideration. Therefore, the awards are set aside and these cases are remanded to the court below for fresh consideration in accordance with law. Parties shall appear before the court below on March 31, 2010. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes M.A.C.A.Nos.203 , 487 OF 2005 & M.A.C.A.Nos.592, 594 OF 2006 :: 4 :: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.203, 487 OF 2005 & M.A.C.A.Nos.592, 594 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 24th February 2010