IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 MACA.No. 1155 of 2005(G) ----------------------- OPMV.671/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT : PETITIONER. ----------------------------------- JOSE, S/O. JOHN, RESIDING AT KUNAPPILLIL HOUSE, MALIPPARA KARA, PINDIMANA VILLAGE. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.PAUL MATHEW RESPONDENTS : RESPONDENTS. --------------------------- 1. M.A.JOHNSON, S/O. AUGUSTY, MATTATHIL HOUSE, THURAVOOR KARA, ANGAMALY. 2. ANTU, S/O. AUGUSTY, MULAVARICKAL HOUSE, THURAVOOR KARA, THURAVOOR VILLAGE. 3. THE ORIENTAL INSURANCE COMPANY LIMITED, ANGAMALY BRANCH. 4. PADMANABHAN, S/O. PARUKUTYAMMA, PIDIVEETTICKAL HOUSE, KALLOKKADU, MUVATTUPUZHA. 5. BIJU, S/O. POULOSE, KUNAPPILLIL HOUSE, MALIPPARA KARA, PINDIMANA VILLAGE. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R3 SRI.P.JACOB MATHEW FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & V.CHITAMBARESH, JJ. *********************** M.A.C.A No.1155 of 2005 ***************************** Dated this the 11th day of November, 2011 JUDGMENT BASANT, J. Claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident which occurred on 07.04.1999. There was a collission between a tempo van (the insured vehicle hereafter) and a motorcycle in which the injured claimant was travelling. The claimant alleged that he was pillion rider and that the accident had taken place on account of the negligence of the driver of the insured vehicle. He did of course array the owner, insurer and driver of the motor cycle also as the respondents. The specific allegation was that the accident occurred due to the negligence on the part of the driver of the insured vehicle. 2. The driver, owner and insurer of the insured vehicle contested the claim. The driver and owner set up a plea that the accident occurred not on account of the negligence of the driver of the insured vehicle, but on account of the negligence of the rider of the motor cycle (R5). The insurance company admitted the policy coverage, but contended that the accident had not M.A.C.A No.1155 of 2005 2 taken place on account of the negligence of the driver of the insured vehicle. The insurance company contended that the claimant was riding the motor cycle at the relevant time and that the accident had taken place on account of the negligence of the rider of the motor cycle (ie. the claimant). 3. The parties went to trial on these contentions. On the side of the claimant, he examined himself as PW1 and an eye witness as PW2 to support his version. He also produced Ext.A2 final report submitted by the police. After due investigation., police in the final report had alleged that the driver of the insured vehicle was culpably negligent and that was the cause of the accident. The driver of the insured vehicle had faced indictment before the Magistrate and he was found guilty and convicted as per Ext.A5 judgment - of course accepting his plea of guilty. 4. The Tribunal took note of the incongruity between the version of the claimant and the statement in the earliest document made to the doctor by the injured which suggested that he was riding the motor cycle at the relevant time. The precise allegation is seen recorded as “alleged H/O RTA Patient riding motorbike hit against tempo”. On this entry in Ext.A4 M.A.C.A No.1155 of 2005 3 wound certificate, the Tribunal viewed the case of the claimant with suspicion and reservation. The suspicion and reservation generated on the basis of that entry in Ext.A4 could only have been on the question whether the claimant was the rider or pillion rider at the relevant time. At any rate, no doubt or suspicion could have been aroused about the responsibility of the rider of the motor cycle vis a vis the driver of the insured vehicle on the basis of that entry in Ext.A4. However, the Tribunal discarded the entire case of the claimant and rejected the claim on the basis of this incongruity between the version of the claimant and the entry in Ext.A4. 5. The learned counsel for the appellant contends that the approach made by the Tribunal is not correct. Even accepting the version that the claimant was the rider of the motor cycle, the conclusion is irresistible on the basis of the materials presently available that the accident had taken place only on account of the negligence of the driver of the insured vehicle. He had pleaded guilty. His plea of guilty was also approached by the Tribunal with certain amount of reservation, it appears. However, in the total absence of a plea for anyone that no accident at all had taken place and that the driver and M.A.C.A No.1155 of 2005 4 the owner of the insured vehicle were colluding with the claimant to defend the insurance company.. The Tribunal was evidently not justified in approaching Ext.A5 judgment of the learned Magistrate with any amount of reservation. The inference that the driver of the insured vehicle may have colluded with the claimant is, on the materials available, found to be not justified, rational or cogent. 6. We have Exts.A2 and A5 throwing light on the cause of the accident. That version is supported by the evidence of Pws 1 and 2. Of course, there is an inconsequential dispute as to who was riding the motor cycle at the relevant time. However, on the crucial issue as to whether there was negligence on the part of the driver of the insured vehicle, the Tribunal evidently erred in assuming that the driver of the insured vehicle was not negligent. 7. The finding on that aspect therefore deserves to be set aside. On the available indications and going by Exts.A2 and A5 in the light of the judgment in New India Assurance Co.Ltd. V. Pazhaniammal [2011 (3) KLT 648] , we are satisfied that it is absolutely safe to conclude that the accident took place on account of the negligence of the driver of the insured vehicle. M.A.C.A No.1155 of 2005 5 The oral evidence of PWs 1 and 2 also support the version of the claimant. The appellant is hence entitled to recover the loss suffered by him from the owner, driver and insurer of the insured vehicle. 8. Coming to the quantum of compensation, we find that he Tribunal has not considered the question at all. The learned counsel for the appellant submits that the extent of disability deserves to be assessed also. At any rate, we are satisfied that interests of justice will be served ideally by directing the Tribunal to dispose of the matter afresh. We remand the matter to the court below only for the purpose of ascertainment of the quantum of compensation payable. 9. In the result: a) This appeal is allowed in part; b) The impugned order is set aside and the Tribunal is directed to dispose of O.P(MV) No.671 of 2000 afresh. The Tribunal shall now ascertain the quantum of compensation payable; c) The parties shall appear before the Tribunal on 15.12.2011; d) A copy of this judgment shall be furnished to the M.A.C.A No.1155 of 2005 6 learned counsel for both sides. They shall produce the same before the Tribunal when they appear on 15.12.2011; e) Registry shall also communicate this judgment forthwith to the Tribunal; f) The Tribunal shall dispose of the matter afresh as expeditiously thereafter as possible - at any rate, within a period of four months from that date (ie. 15.12.2011). Compliance shall be reported to this Court. (R.BASANT, JUDGE) (V.CHITAMBARESH, JUDGE) rtr/