IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 MACA.No. 440 of 2006() ---------------------- OPMV.417/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- JOY JOSEPH, S/O. JOSEPH, MALEYEKAL HOUSE, PULIYANNOOR KARA, AND VILLAGE. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT(S): --------------- 1. K.G. PARAMESWARAN, GOVIN SADANAM, KODANGOOR SOUTH P.O. 2. P.G. PARAMESWARAN NAIR, POORNENDU, KIDANGOOR SOUTH P.O. 3. THE NATIONAL INSURANCE CO.LTD., PALA BRANCH. ADV. SRI.M.A.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & C.T.RAVIKUMAR, JJ. * * * * * * * * * * * * * * * * * * M.A.C.A.No.440 of 2006 ---------------------------------------- Dated this the 4th day of March 2009 J U D G M E N T BASANT,J The claimant before the Tribunal is the appellant before us. He claimed an amount of Rs.2,32,500/- as compensation. The tribunal came to the conclusion that the appellant has suffered loss to the tune of 85,899/- and found that the insurance company was liable to compensate the appellant. But the tribunal found that there was contributory negligence to the extent of 25% on the part of the appellant/claimant and hence directed payment of only 75% of the loss suffered to be paid as compensation. 2. The learned counsel for the appellant only prays that the matter may be remanded back to the court below to enable the appellant to adduce evidence on the question of negligence. The learned counsel for the appellant contends that in the facts and circumstances of this case the appellant must have been given opportunity to adduce evidence. It is his submission that even though the appellant wanted to adduce evidence, no oral evidence was permitted to be adduced. In the facts and M.A.C.A.No.440/06 2 circumstances of this case we are of the opinion that it is certainly necessary to have evidence about the cause of the accident. In the scene mahazer, the spot of impact is located at the middle of the road that is at a distance of 2.7 metres from the kerb of a 5.4 metres wide road. The learned counsel for the appellant contends that the mere fact that the spot of impact is located in the scene mahazer in the middle of the road is no reason to jump to any conclusion about the cause of the accident. A person may have to cross the road and the mere fact that the accident occurred when he was crossing the road cannot lead to the conclusion that he has also contributed by his negligence to the accident. 3. We are not embarking on a detailed discussion on merits. We are persuaded to agree that in the facts and circumstances of this case oral evidence must have been permitted to be adduced or must have been insisted by the tribunal to come to an authentic conclusion about the responsibility for the accident. We are satisfied that the matter deserves to be sent back to the court below for fresh disposal after giving opportunity to the parties to adduce evidence on the cause of the accident. M.A.C.A.No.440/06 3 4. In the result, this appeal is allowed. The impugned award is set aside. The tribunal shall now dispose of the claim afresh in accordance with law after giving the parties an opportunity to adduce evidence. Inasmuch as we are sending back the matter to the court below for fresh disposal, it is directed that the parties shall be permitted to adduce further evidence on all aspects and a fresh disposal on merits shall be undertaken by the tribunal. 5. The parties shall appear before the tribunal on 06/04/2009. The tribunal shall make every endeavour to dispose of the claim afresh as expeditiously as possible, at any rate, within a period of two months from 06/04/2009. 6. Hand over copy of this judgment to the learned counsel for the appellant for production before the tribunal. (R.BASANT, JUDGE) (C.T.RAVIKUMAR, JUDGE) jsr M.A.C.A.No.440/06 4 M.A.C.A.No.440/06 5 R.BASANT &C.T.RAVIKUMAR, JJ. .No. of 200 ORDER/JUDGMENT 06/02/2009