IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 MACA.No. 1121 of 2006 F ----------------------- OPMV.2222/1998 of IST ADDL.MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOZHIKODE .................... APPELLANT(S): PETITIONER ---------------------------------------- M.RAJAN, 47 YEARS, S/O.CHOYIKUTTY, DHAYA, ANTHARA PARAMBATH, P.O.MALAPARAMBA, CALICUT-9. KOZHIKODE DISTRICT. BY ADV. SRI.P.K.RAMKUMAR RESPONDENT(S): RESPONDENTS: ------------------------------------------------- 1. DR.P.C. SHAJI, 5/328, PAROD DIAGNOSTIC RESEARCH CENTER, MEENCHANTHA, CALICUT-18. 2. B.BINOY, S/O.VELAYUDHAN, AGED 31 YEARS, VATTIYATTIL VEEDU, P.O.KAZHIMBRUM, VALAPPAD VIA., THRISSUR DISTRICT. 3. ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, KINGS WAY BUILDING, MAVOOR ROAD JUNCTION, CALICUT-1. 4. C.ABDUL MAJEED, S/O.KUNHAMMED, CHELAKKAL HOUSE, P.O.CHENNA, CHENNA, MANGALORE. 5. P.T.SHIHABUDHIN, S/O.MUHAMMED, 24, PARATHARIPOYIL.P.O, KARASSERY, KODIYATHUR, MUKKAM VIA. MACA.NO.1121/2006 6. UNITED INDIA INSURANCE CO. LTD., SUNITHA BUILDINGS, D.B.ROAD, R.S.PURAM, COIMBATORE. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R6 SRI.S.MAMMU FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ------------------------------------------ M.A.C.A. NO. 1121 OF 2006 ------------------------------------------ Dated this the 25th August, 2009 JUDGMENT K.M. Joseph, J. Appellant is the claimant in a petition filed under Section 166 of the Motor Vehicles Act. His case was that while he was driving a scooter with his daughter as pillion rider, the Ambulance Van driven at a high speed in a rash and negligent manner, hit with the lorry and dashed against the scooter of the appellant. The lorry was driven by the fifth respondent. The sixth respondent was shown as the alleged insurer of the lorry. 2. The tribunal awarded Rs.13,500/= with six per cent interest. The tribunal found that the accident was the result of negligence on the part of the second respondent/driver of the Ambulance Van belonging to the first respondent. Finding that MACA.NO.1121/06 F 2 there was violation of the condition of the Policy in so far as there was no valid licence at the time of accident with the second respondent, the third respondent was found entitled to realise the amount from the first respondent. Thus, the petition was allowed by directing payment of Rs.13,500/= with six per cent interest against the third respondent which was permitted to realise it from the first respondent. 3. We heard Shri P.K. Ramkumar, learned counsel for the appellant, the third respondent and the 6th respondent. Shri P.K. Ramkumar, learned counsel for the appellant would point out that this is a case where the tribunal has proceeded on to decide the compensation on the basis of the Wound Certificate and documents have been produced warranting higher compensation. The only documents which are marked are Exts.A1 to A4. Ext.A1 is the FIR, Ext.A2 is the scene mahazar, Ext.A3 is the Accident Register -cum- Wound Certificate from MACA.NO.1121/06 F 3 the Medical College Hospital, Kozhikode. Ext.B1 is the Insurance Policy. 4. The appellant would state that this is a case where the case was posted for evidence and when the appellant and his counsel went to the court, it was notified that the case was transferred to the First Additional Sessions Court, Kozhikode and that when the appellant and his counsel went to the First Additional Sessions Court, the case was not called. But, it is stated that the case was posted on 21.12.2005 and on that day, the appellant was present. But, instead of taking evidence, the court pronounced the impugned award on that day. There is also reference to the fact that the appellant's counsel Shri U. T. Rajan had to face a personal tragedy of prolonged illness and tragic death of his only son and he failed to produce the subsequent documents in time. In short, this is a case where, according to the appellant, only because of such MACA.NO.1121/06 F 4 circumstances, the appellant was not in a position to adduce evidence in support of his claim for just compensation. 5. We called for the records. We find that some documentary evidence is produced. But, admittedly, those documents have not been marked. In such circumstances, we feel that a remand is necessary in the interest of justice. Accordingly, we allow the Appeal in part and remand the matter to the tribunal for deciding the question of compensation. We make it clear that we are not interfering with the award in so far as it relates to the finding as to the negligence on the part of the second respondent and finding the third respondent liable to pay the amount as also the liberty granted to the third respondent to recover the amount from the first respondent. Without disturbing these aspects of the award, we set aside the determination of compensation by the tribunal and remit back the case for the purpose of the parties adducing such evidence as MACA.NO.1121/06 F 5 they are advised. The parties will appear before the tribunal on 05.10.2009. Send back the records to the tribunal. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge