IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 MACA.No. 1736 of 2009() ----------------- OPMV.1441/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE ................. APPELLANT / PETITIONER : ---------------------------------------- RAJESH BABU, S/O.VELAYUDHAN, AGED 30 YEARS, PALLIYALI HOUSE, SEKHAR NIVAS, FEROKE, KOZHIKODE DISTRICT. BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN RESPONDENTS / RESPONDENTS : ------------------------------------------------- 1. SAJESH.C.V., CHERUVEETTIL HOUSE, FEROKE COLLECGE POST, KOZHIKODE DISTRICT 2. THE NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, NOOR COMPLEX, MAVOOR ROAD, KOZHIKODE DISTRICT. R1 BY ADVS. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN R2 BY ADVS. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn A.K. BASHEER & P.Q. BARKATH ALI,JJ. ........................................... M.A.C.A.NO.1736 OF 2009 ............................................. Dated this the 21st day of February, 2011. J U D G M E N T Basheer, J: This appeal is directed against the award passed by the Motor Accidents Claims Tribunal, dismissing the claim petition filed by the appellant holding that there was no satisfactory evidence to show that any road traffic accident as alleged by the appellant, had occurred. 2. The case of the appellant before the Tribunal was that on September 8, 2004 at about 6.30 p.m he was knocked down from his motor cycle by yet another two wheeler bearing Reg. No. KL 11 H 6623. Respondent No.1 is stated to be the owner of the said offending vehicle and respondent No.2, the insurer thereof. 3. It was noticed by the Tribunal that the appellant had not impleaded the rider of the alleged offending vehicle and that the police had registered a crime in connection with the alleged accident only on March 10, 2005, though the alleged accident had occurred on September 8, 2004. It : 2 : M.A.C.A.NO.1736 OF 2009 came on record that the police registered the above crime on the basis of a private complaint that was forwarded by the criminal court under Section 156(3) of the Code of Criminal Procedure. Appellant got himself examined as PW1 and he spoke about the injuries sustained by him in the accident apart from the alleged rash and negligent driving of the rider of the offending vehicle. 4. We have heard Ms. Reni, learned counsel who appears for the appellant and Sri. Mathews Jacob, learned Senior Counsel who appears for the insurance company. It is seen from Ext.A2 wound certificate that at the time of admission of the appellant in the hospital immediately after the accident, the doctor had noted that the appellant had been brought with some fracture arising out of a road traffic accident. Thus there is considerable force in the contention raised by the appellant that he was under the bona fide impression that the hospital authorities would have reported the matter to the police and it was, therefore, that he had not taken any steps with regard to the criminal case. But when he came to know that the police had not : 3 : M.A.C.A.NO.1736 OF 2009 taken any steps to prosecute the offender, he was constrained to file a private complaint in March, 2005. 5. Having perused the impugned award and the materials available before us, we are satisfied that the appellant has to be given a further opportunity to prosecute his case. In any view of the matter lapse on the part of the appellant to implead rider of the alleged offending vehicle cannot be condoned. For that reason, the impugned award shall stand set aside on condition that the appellant pays a sum of Rs.2,500/= to the Insurance Company. The cost shall be paid within two weeks from the date of receipt of a copy of this judgment, failing which the appeal will stand dismissed. 6. If cost is paid, the Tribunal shall pass a fresh award after affording sufficient opportunity to the parties to adduce further evidence in the matter. The appellant shall also take necessary steps to implead the rider of the offending vehicle whose name is indicated in the claim petition itself. The Tribunal shall dispose of the matter as : 4 : M.A.C.A.NO.1736 OF 2009 expeditiously as possible at any rate on or before June 30, 2011. Parties shall appear before the Tribunal on March 30, 2011. A.K. BASHEER, JUDGE. P.Q. BARKATH ALI,JUDGE. cl : 5 : M.A.C.A.NO.1736 OF 2009