IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 MACA.No. 1758 of 2010(A) ----------------------------- OPMV.736/2006 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT(S)/3RD RESPONDENT IN OP: ------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD THAZHAPPALAM, REPRESENTED BY THE AUTHORISED SIGNATORY, THE ORIENTAL INSURANCE CO.LTD REGIONAL OFFICE, METRO PALACE, ERNAKULAM NORTH KOCHI-18 BY ADV. SRI.A.R.GEORGE RESPONDENT(S)/CLAIMANT & RESPONDENTS 1 & 2 IN OP: --------------------------------------------------------------------- 1. JAYAKUMAR @ SUNIL, S/O.JAYADEVAN PILLAI SARASWATHY MANDIRAM,NEDUMONKAVU PO, KOLLAM, NOW RESIDING AT PALAKKAL VEEDU, PATTATHANAM NAGAR, HOUSE NO.259, PATTATHANAM PO,KOLLAM-691021. 2. BIBIN DAMODARAN, S/O.DAMODARAN, KEERIPPATTU HOUSE,KOOTHATTUKULAM-686662. 3. BIJU K.R, S/O.RAGHAVAN, KULAMANTHAYIL VEEDU, PERINGASSERI PO, MOOTHUPUZHA-685581. ADV. SRI.AJAYA KUMAR. G FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1758 OF 2010 = = = = = = = = = = = = = = = Dated this the 17th day of January, 2011. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kollam in O.P.(MV)736/06. It is the case of the petitioner that while he was travelling in a motorcycle a lorry came in a rash and negligent manner and hit on the motorcycle resulting in injuries to him. The insurance company had denied the negligence of the driver and would contend that the accident had taken place only on account of the negligence of the motorcyclist. The Tribunal after consideration of the materials passed an award for Rs.76,106/- and directed the insurance company to pay the amount. It is against that decision the insurance company has come up in appeal. M.A.C.A. 1758 OF 2010 -:2:- 2. Heard the learned counsel for the appellant as well as respondent claimant. The insurance company's contention is to the effect that the motorcyclist had driven the motorcycle in a rash and negligent manner and had gone under the lorry resulting in injuries to him. Or in other words, according to them, the negligent driving of the motorcyclist had resulted in the accident. On the contra the claimant would contend that the lorry had hit on the bike and that had resulted in the accident. The learned counsel for the insurance company had relied on the wound certificate as well as the A.M.V.I. Report. In the wound certificate there is a recital to the effect that the bike had lost control and gone underneath the lorry. In the A.M.V.I. report it is stated about the damages caused to the lorry and that right side M.A.C.A. 1758 OF 2010 -:3:- fuel tank is broken. In order to have the fuel tank broken the vehicle has to go inside. No lorry can hit on a moving vehicle through its tank so it is a matter which requires consideration. The Tribunal has not properly analysed the matter and therefore I feel an opportunity has to be given. I am also informed that the Tribunal did not permit the claimant to be cross examined. Therefore the award under challenge is set aside and the matter is remitted back to the Tribunal with a direction to permit all concerned to produce both documentary as well as oral evidence in support of their respective contentions and also permit PW1 to be cross examined. Needles to say that the claimant can also adduce additional evidence in support of his contentions. Parties are directed to appear before the Tribunal on M.A.C.A. 1758 OF 2010 -:4:- 24.2.2011. The amount which is in deposit shall continue to be so until a final decision is taken in the matter. M.N. KRISHNAN, JUDGE. ul/-