IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 MACA.No. 762 of 2006() ---------------------- OPMV.1246/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER: ------------------------------------- BABU, S/O. PAULOSE, RESIDING AT VATTAPARAMBAN HOUSE, KEEZHILLOM KARA, RAYAMANGALAM VILLAGE. BY ADVS. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI. RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. V.P. BABY, VATTAPARAMBAN HOUSE, AYAKKADU KARA, THRIKKARIYOOR VILLAGE.( D I E D) 2. THE ORIENTAL INSURANCE CO. LTD., BRANCH OFFICE, KOTHAMANGALAM. *ADDL.R3 TO R5 IMPLEADED: R3. CHINNAMMA BABY, W/O.LATE V.P.BABY, VATTAPARAMBIL HOUSE, THRIKKARIYOOR P.O., AYAKKAD, KOTHAMANGALAM. R4. BIJU, S/O.LATE V.P.BABY, VATTAPARAMBIL HOUSE, THRIKKARIYOOR P.O., AYAKKAD, KOTHAMANGALAM. R5. BIJI, D/O.LATE V.P. BABY AND W.O. VARGHESE, PERUMALIL HOUSE, KANNARA P.O., KANNARA, PATTIKKADU, THRISSUR DISTRICT. (*ADDL.R3 TO R5 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED 1ST RESPONDENT AS PER ORDER DTD. 09/06/2010 IN I.A.NO.3545/2009) R2 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) ADDL.R3 TO R5 BY ADV. SRI.T.R.SADEESAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. ........................................... M.A.C.A.NO.762 OF 2006 ............................................. Dated this the 9th day of June, 2010. J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Muvattupuzha in OP(MV)No.1246/2002. The claimant, it is alleged, sustained injuries in a road accident when the vehicle in which he was travelling on application of sudden break overturned resulting in injuries to him as a pillion rider. The insurance company contended that he himself was the driver and therefore, the company is not liable. All the police records including the charge sheet and the judgment of the criminal court have implicated the first respondent, who is no more now, as the rider of the two wheeler. The Tribunal held the defences available in the Rulings in Rylands v. Flectcher (1861 - 73 ALLER-1) and relied upon act of a stranger to exclude negligence. 2. I am afraid, the said approach may not be correct. When a vehicle is driven through a road, tendency is there for the people as well as for the animals to cross the road. It is a point which has to be borne in mind by the rider. That : 2 : M.A.C.A.NO.762 OF 2006 is why it is always said that the driver has to take care of all these eventualities likely to happen when one may abruptly cross the road. Here the contention is that a cow suddenly crossed the road which resulted in the sudden application of break. But unfortunately the claimant was also not fair and he did not reveal to the court it was none other than his brother who was the rider of the vehicle. 3. So all these things put together created suspicion in the mind of the court regarding the genuineness of the claim. When the police records and the judgment of the criminal court stand on one side, a mere suspicion in the mind of the court cannot be a legal ground to throw away the claim. Equally the claimant is also at fault for the reason that he does not enter the box to tender evidence. Hence, it becomes necessary to give an opportunity to the claimant to substantiate the case. 4. Therefore the award under challenge is set aside and the matter is remitted back to the Tribunal and parties are permitted to produce both documentary as well as oral evidence in support of their respective contentions and then : 3 : M.A.C.A.NO.762 OF 2006 dispose of the matter in accordance with law. Parties are directed to appear before the Tribunal on 20.7.2010. In case the insurance company did not appear on that date, the claimant is directed to take out notice to the company for the proper disposal of the matter. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 4 : M.A.C.A.NO.762 OF 2006