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. 1469 of 2004(C) ----------------------- OPMV.1891/1999 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): PETITIONER ------------------------ P.RANJITH, S/O.JANAKI, AGED 29, PURAKKANDIYIL HOUSE, KAITHERI, 11TH MILE, P.O.NIRMALAGIRI, KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE SRI. GEORGE SEBASTIAN SRI. GEORGE MATHEW RESPONDENT(S): RESPONDENTS -------------------------- 1. K.RATHEESAN, S/O.RAGHAVAN, EKARATH HOUSE, KADIRUR, P.O.WEST PONNIAM, KANNUR. 2. KERALA STATE INSURANCE DEPARTMENT, KANNUR. BY SR. GOVT. PLEADER SRI. K.B. RAMANAND FOR R2 SRI.K.V.PAVITHRAN FOR R1 SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON 25/08/2009 DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. NO: 1469 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th Day of August, 2009. JUDGMENT Joseph Francis J. This appeal is filed by the petitioner in O.P. (M.V.).No. 1891 of 1999 on the file of Additional M.A.C.T., Thalassery. Respondents 1 and 2 are the respondents 1 and 2 in that O.P., which was filed under Section 166 and Section 163A of the Motor Vehicles Act. 2. The facts of the case are briefly as follows: On 15.7.98 at 5 p.m. the appellant was travelling as a pillion rider on the motor cycle having No.KL-13D.6483 from Mambaram to Kuthuparamba. The vehicle was owned and driven by the 1st respondent and insured with the 2nd respondent. The first respondent drove the vehicle in a negligent manner and it rode through a small pit and the right leg of the appellant slipped to the wheel of the vehicle and sustained injuries. At the time of the accident the appellant was M.A.C.A . NO: 1469 OF 2004 :2: aged 24 years and was working as an Electrician getting a monthly income of Rs.4000/- He claimed Rs.1,50,000/- as compensation. In the Claims Tribunal, the first respondent filed a written statement admitting the accident and contends that the accident was due to the negligence of the petitioner. The second respondent filed written statement admitting the policy and contends that the accident was due to the negligence of the petitioner and that the compensation claimed is excessive. 3. Before the Claims Tribunal, PW1 was examined and Exts. A1 to A10 and B1 and B2 were marked. The learned Claims Tribunal on considering the evidence dismissed the petition on finding that the accident was not due to the negligence of the first respondent. Against that judgment the petitioner filed this appeal. 4. We heard the learned counsel for the appellant and the learned counsel for the respondents. 5. Learned Counsel for the appellant submitted that the Claims Tribunal went wrong in giving undue importance to the word “Scooter” in the deposition of the appellant and that by the word M.A.C.A . NO: 1469 OF 2004 :3: “Scooter” the appellant was referring a two wheeler. Moreover, the respondents in the written statement have no case that th appellant was travelling in a scooter at the time of accident. 6. It is now settled position of law that while considering the claims petition, the Tribunal is required to hold an enquiry and as not to act as a criminal court so as to find whether the petitioner has established the occurrence beyond any shadow of doubt. In the enquiry, if there is a primafacie evidence of occurrence, there is no reason to dis believe such evidence. 7. Exts.A5 is the copy of F.I.R. in Crime No.202 of 1999 of Koothuparambu police station registered against the first respondent with regard to the accident. In that F.I. Statement given by the petitioner, it is stated that on 15.7.98 at about 4 p.m., he was travelling in a motor cycle bearing No:KL 13D/6483 as a pillion rider, and that due to rash and negligent driving of first respondent, who was driving that vehicle, right leg of the petitioner dropped in the wheel of the motor cycle, as a result of which he sustained injuries. In the statement given by the petitioner before police, it is stated that some delay was M.A.C.A . NO: 1469 OF 2004 :4: caused in giving statement and he was under the impression that hospital authorities might have informed the police with regard to the accident and on enquiry it was revealed that no case was registered. Ext.A6 is the copy of Accident Register cum wound certificate issued from A.K.G. Memorial Co-operative hospital, Kannur, stating that the petitioner was admitted in that hospital on 15.7.1998 due to a motor accident. The petitioner is examined as PW1. PW1 deposes that the accident was due to the rash and negligent driving of first respondent who was driving the motor cycle. In the written statement, the respondents are not disputing the accident. The first respondent has not gone to the witness box to prove that he was not negligent. Therefore an adverse inference can be drawn against him. In the absence of any contra evidence, we are of the view that the accident was due to the rash and negligent driving of first respondent who was driving the motor cycle. The Claims Tribunal has not assessed the compensation payable to the petitioner. For that purpose, the case has to be remanded back to the Claims Tribunal. Accordingly this appeal is allowed and the judgment dismissing M.A.C.A . NO: 1469 OF 2004 :5: the O.P. No: 1891 of 1999 on the file of Additional M.A.C.T. Thalasserry is set aside and the case is remanded back to that Tribunal for assessing the compensation payable to the petitioner. The parties are directed to appear before the Claims Tribunal on 8.10.2009. Parties are directed to suffer their respective costs in this appeal. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/