IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 20TH AUGUST 2008 / 29TH SRAVANA 1930 MACA.No. 528 of 2003() ---------------------- (AGAINST THE AWARD DATED 22/02/2003 IN OPMV.852/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA) .................... APPELLANT(S): PETITIONERS/APPELLANTS ------------------------------------ 1. USHA, W/O.LATE MANMADHAN NAIR, SOMANISHTHAM HOUSE, NIRAPPEL CITY, VANDANMEDU P.O. ANAKKANI VILLAGE. UDUMBANCHOLA, NEDUMJKANDAM. 2. SYAMILI. D/O.LATE MANMADHAN NAIR, MINOR REP. BY HER MOTHER AND NEXT FRIEND USHA SOMANISHTAM HOUSE, NIRAPPEL CITY, VANDANMEDU PO, ANAKKANI VILLAGE. UDUMBANCHOLA, NEDUNKANDAM. 3. SIVAPRASAD, S/O.LATE MANMADHAN NAIR, MINOR REP. BY HIS MOTHER AND NEXT FRIEND USHA, SOMANISHTAM HOUSE, NIRAPPEL CITY, VANDANMEDU PO, ANAKKANI VILLAGE, UDUBANCHOLA, NEDUMKANDAM. BY ADV. SRI.C.J.JOY RESPONDENT(S): RESPONDENTS. --------------------------- 1. RADHAKRISHNAN, S/O.UNNIPILLAI(SET EX- PARTE BY THE TRIBUNAL), KKALARICKAL HOUSE, KOCHARA PO.O, MANTHIPPARA. 2. M.JINADEVAN, S/O.MADHAVAN(SINCE DECEASED) NEELIYANICKAL HOUSE, KARIMKULAM P.O., THODUPUZHA. 3. NEW INDIA ASSURANCE CO.LTD., REP. BY ITS BRANCH MANAGER, KATTAPPANA BRANCH. ADV. SRI.N.S.MOHAMMED USMAN FOR R3 SRI.BIJI MATHEW FOR R.1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 20/08/2008, THE COURT ON 20/08/2008 PASSED THE FOLLOWING: C.N. RAMACHANDRAN NAIR & V.K.MOHANAN, JJ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 528 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of august 2008 JUDGMENT RAMACHANDRAN NAIR,J The appeal is filed against the award of MACT, granting compensation to the appellants for the death of the first appellant’s husband, in a motor accident. The accident occurred as a result of a collision between the motor vehicle driven by the first appellant’s husband and the jeep driven by the first respondent. However, 50% of the compensation awarded is reduced on account of the negligence of the deceased who was driving the bike. We notice that this finding is purely based on the evidence of PW2, who is none other than the witness of the appellant, who has stated that the jeep hit on the left side of the motor bike. This is the sole basis on which MACT held that accident was partly on account of contributory negligence by the deceased. However, MACT has not considered remaining evidence furnished by PW2. He has stated that jeep was driven in a high speed and negligent manner. Moreover, the scene mahazar and final report furnished by the police are not even considered by the MACT. Another thing noted by the MACT is that M.A.C.A.No.528/2003 -2- the deceased had not exhibited ‘L’ in the vehicle even though he had only a learner’s licence. We do not think the MACT has considered the entire evidence in the matter, but has solely relied on a piecemeal statement from one of the witnesses to find contributory negligence of the deceased. 2. So far as the challenge against the amount of compensation is concerned, we are unable to uphold the assumption of MACT that the wife of the deceased could have carried on the newspaper agency that the deceased was running. Further finding that the deceased would not have been engaged in agricultural operations as he was engaged in other business also is not tenable. For the reasons stated above, the award passed by the MACT is set aside with a direction to the MACT to consider the entire evidence in the matter, hear both sides and decide the matter on all issues afresh within a period of three months from the date of receipt of a copy of this judgment. Appellant shall produce a copy of the judgment before the MACT for compliance. C.N.RAMACHANDRAN NAIR, JUDGE V.K. MOHANAN, JUDGE ttb