IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 MACA.No. 340 of 2005() ---------------------- (*) OPMV.1643/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM (CORRECTED) (*) CAUSE TITLE CORRECTED BY SUBSTITUTING OP(MV) NO.1644/99 INSTEAD OF OP(MV) NO.1643/99 - VIDE ORDER DATED 1.8.2006 ON IA NO.1442/2006 .................... APPELLANT(S): APPELLANT/APPLICANT --------------------------------- ALEYAMMA THOMAS, PATMAS, KUDAPPANAKUNNU, THIRUVANANTHAPURAM. BY ADV. SRI.P.A.AHAMMED SRI.M.SREEKUMAR RESPONDENT(S): RESPONDENTS -------------------------- 1. ABDUL RASHEED, S/O. ABDUL HAJIYAR, THUNDATHIL VEEDU, KALAKODE P.O., SOUTH PARAVOOR. 2. THE NATIONAL INSURANCE COMPANY LTD., KOLLAM. 3. B.SREEKUMAR, POTHIVILA PADIYATHU VEEDU, BUDHAKULAM. ADV. SRI.P.JAYASANKAR FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A.No.340 of 2005 -------------------------------------- Dated this the 4th day of December, 2008. JUDGMENT Thomas P.Joseph, J. This appeal arises from the dismissal of O.P.(MV) No.1644 of 1999 of the Motor Accidents Claims Tribunal, Thiruvananthapuram (for short, 'the Tribunal'). On 21.10.1999 the bus driven by the third respondent, owned by the first respondent and insured with the second respondent hit the car belonging to the appellant causing extensive damage to the car. Appellant claimed damages for the damage caused to the car. Tribunal vide the common award, dismissed the application. Hence this appeal. 2. Heard both sides. 3. Point for consideration is whether the appellant is entitled to recover damages for the for the damage caused to the car? MACA No.340/2005 2 4. The point. On the question of cause of accident, Tribunal found that the accident was caused due to the rash and negligent driving of the bus by the third respondent. That finding has become final. What remained for consideration is only whether the appellant is entitled to damages as claimed. 5. It is contended by the learned counsel for appellant that the documents produced by the appellant were not considered by the Tribunal. Counsel for contesting respondent contended that sufficient evidence was not produced by the appellant to show that she suffered damages due to the damage allegedly caused to the car. 6. Appellant produced bills (Ext.A7 series) for Rs.2,54,954/- claiming damages from the respondents. Further, she produced Ext.A4, report of the AMVI to show the extent of the damage caused to the car. But the appellant did not produce any survey report concerning the extent of the damage suffered by the car. Tribunal observed that though the car was insured with M/s.Oriental Insurance Company, it is not clear whether the appellant made any claim with that company and received any amount for the damage caused to MACA No.340/2005 3 the car, the said company was not made a party to the proceeding and certificate also was produced to the effect that appellant did not claim any amount from the said company. It is therefore, that the application was dismissed. 7. We are not persuaded to think that it was necessary to implead M/s.Oriental Insurance Company as a party in the application. At the same time, appellant ought to have proved that she has not received any amount from the insurer of her vehicle. She could have either examined the officials of that Company or produced certificate or other record to that effect. Moreover, apart from producing certain bills, no other acceptable evidence was let in to support her claim for damages. In these circumstances, we are unable to find fault with the Tribunal in observing that the claim is not proved. 8. Counsel for the appellant made a fervent plea to remand the case to the Tribunal so that, appellant could adduce proper evidence. Considering the claim made by the appellant and the damages she is said to have suffered, we are inclined to think that it is just and proper to give the appellant an opportunity to adduce appropriate evidence. We therefore, while making it clear that the issue regarding negligence has already become final, set aside the common award to the extent it concerned O.P.(MV) NO.1644 of 1999 and remit that case to the Tribunal for assessment of damages. MACA No.340/2005 4 Resultantly, this appeal is allowed by way of remand. The impugned common award to the extent it concerned O.P.(MV) No.1644 of 1999 is set aside and that case is remanded to the Tribunal for assessment of the damages payable to the appellant in the light of the observations made above. Both sides will be permitted to adduce evidence in that matter. Parties shall appear in the Tribunal on 30.1.2009. J.B.KOSHY, JUDGE. THOMAS P.JOSEPH, JUDGE. cks