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 10TH JANUARY 2011 / 20TH POUSHA 1932 MACA.No. 95 of 2009() --------------------- OPMV.1189/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT/FIRST RESPONDENT -------------- THE PROPRIETOR BURHANI INDUSTRIALS PALLIKANDY ROAD,KOZHIKODE-3, REP. BY MOHAMMED ALI BAI,KALLAI WEST,PALLIKANDY ROAD, KOZHIKODE-3. BY ADV. SRI.PHILIP ANTONY CHACKO SRI.P.M.SEBASTIAN RESPONDENTS/RESPONDENTS 2, 3 & 4 AND PETITIONERS 1 TO 5 ----------------------------- 1. M/S.THE NATIONAL INSURANCE CO.LTD DIVISIONAL OFFICE, P.M.TAJ ROAD,KOZHIKODE. 2. T.V.SURESH, S/O.VELAYUDHAN, XI/309,NADUVILLA PARAMBIL HOUSE KUMBALANGI, COCHIN-7. 3. M/.S. UNITED INDIA INSURANCE CO.LTD CITY BRANCH OFFICE-11 N.H.ROAD, KALOOR, COCHIN. 4. EBRAHIM ALI BAI, AGED 57 YEARS S/O.ALI BAI, 'MATCHIVILA'FRANCIS ROAD, KOZHIKODE ' 5. AMINA EBRAHIM ,W/O. EBRAHIM AGED 52 YEARS, 'MATCHIVILA' FRANCIS ROAD, KOZHIKODE. 6. HASNAIN, S/O. EBRAHIM AGED 35 YEARS, 'MATCHIVILA' FRANCIS ROAD, KOZHIKODE. 7. ZAINABA MUSTHAFA D/O.IBRAHIM , AGED 38 YEARS 'MATCHIVILA' FRANCIS ROAD, KOZHIKODE. MACA.NO.95/2009 8. THASNEE, MUSTHAFA, D/O.IBRAHIM , AGED 33 YEARS 'MATCHIVILA' FRANCIS ROAD, KOZHIKODE. ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE FOR R1 SRI.P.JACOB MATHEW FOR R1 SMT.RAJI T.BHASKAR FOR R3 SRI.K.A.ANAS FOR R4 TO R8 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. --------------------------------------------------- M.A.C.A.95 OF 2009 --------------------------------------------------------- Dated this the 10th day of January, 2011 JUDGMENT Basheer, J. Appellant is the owner of one of the two vehicles which were involved in a head on collision. The accident occurred on August 22, 1999 at Perinayakan Palayam of Coimbatore district in the state of Tamil Nadu. 2. Appellant's son was driving the Maruthi car bearing Reg.No.KL-11-G-1665 which was coming from Mettupalayam to Calicut. Appellant's nephew, who was occupying the front seat in the car, sustained fatal injuries in the accident to which he succumbed after about three months. The legal heirs of the deceased nephew of the appellant laid a claim petition before the Motor Accidents Claims Tribunal under Section 166 of the Motor Vehicles Act seeking compensation from the owner (appellant) and insurer of the car and also from the owner, driver and insurer of the tempo trax which had collided with the car . MACA.No.95/2009 2 3. The insurer of the car contended that the deceased being a gratuitous passenger, the claimants were not entitled to get any compensation from the owner of the car. The insurer of the tempo trax contended that the accident had occurred when the driver of the car tried to overtake a lorry without due care and caution, and in that process the car hit against the oncoming tempo trax. 4. The above contention raised by the driver, owner and insurer of the tempo trax was accepted by the Tribunal. However, the Tribunal held that the claimants were entitled to get a sum of Rs. 4,98,221/- towards compensation and directed the appellant/owner of the Maruthi car to pay the same to the claimants. In other words, the Tribunal exonerated the insurer of the car as well from the liability to pay the compensation. The above award is under challenge in this appeal. 5. Having heard learned counsel for the parties and having perused the impugned award and the relevant materials available on record, we are of the view that the matter requires a reconsideration . The Tribunal has proceeded on the basis of Ext.A1 First Information MACA.No.95/2009 3 Report allegedly furnished by a local resident. It is seen from the records that the accident had occurred at about 2 p.m.. A written complaint is seen to have been filed at about 9.30 p.m. by a so called local resident in which it is alleged that the accident occurred due to the rash and negligent driving of the car driver. The claimants had not adduced any evidence. Similarly, the respondents did not bother to adduce any oral or documentary evidence. 6. As rightly pointed out by learned counsel for the appellant, the Tribunal committed serious illegality in assuming that the accident had occurred because of the rash and negligent driving of the car by its driver in the absence of any cogent and reliable evidence. The accident had admittedly taken place in Tamil Nadu. The driver of the car had died instantaneously . The other victim on whose behalf the present claim petition was laid had sustained very serious injuries and he was taken to a hospital in Coimbatore from the scene of occurrence. The other three persons in the back seat of the car were also injured in the accident. They were not admittedly questioned by the police at any point of time. More importantly, the scene mahazar or such other MACA.No.95/2009 4 relevant records were never made available before the Tribunal. It is further pointed out by the learned counsel that significantly no claim petition had been filed by the owner of the tempo trax or its occupants, even though the allegation was that serious damage had been caused to the said vehicle in the accident. In short, the Tribunal entered the finding as regards the negligence of the car driver solely on the basis of Ext.A1 FIR. 7. We do not propose to deal with the above issue any further, since, in our view, the matter requires a second look by the Tribunal. Learned counsel for the appellant submits that the appellant is prepared to adduce further evidence, if an opportunity is granted. Though the appellant had not filed any written statement, it is submitted by the learned counsel that appellant is prepared to file a statement and produce all necessary documents to substantiate his contention. 8. In the peculiar facts and circumstances of the case, we are of the view that such an opportunity can be granted not only to the appellant, but also to all parties concerned. Therefore, the impugned award is set aside. The case is remitted to the Tribunal for fresh MACA.No.95/2009 5 consideration in accordance with law. It is made clear that it will be open to all parties concerned to adduce further evidence both oral and documentary, if they so choose. The Tribunal shall dispose of the matter as expeditiously as possible, at any rate within four months from the date of receipt of a copy of this judgment. The parties shall appear before the Tribunal on February 28, 2011. Registry shall send back the records to the Tribunal forthwith. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE sv