IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 MACA.No. 1697 of 2005 -------------------------------------- OPMV.466/1998 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT(S): APPELLANT/3RD RESPONDENT. ---------------------------------------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LTD., MUNICIPAL SHOPPING COMPLEX, M.G.ROAD, THALASSERY, REP. BY ITS ASSISTANT ADMINISTRATIVE OFFICER. BY ADV. SRI.KKM.SHERIF SRI.A.A.ZIYAD RAHMAN RESPONDENTS/PETITIONER AND RESPONDENTS 1, 2, 4 AND 5: ------------------------------------------------------------------------------------------------------- 1. SABU T.J. S/O.JOSEPH, RAMYA HOUSE, NETTUR P.O. THALASSERY. 2. V.C.GANGADHARAN, RESIDING AT SHIJU NIVAS VENDAKKUMCHAL, VILAKODE, IRITTY 670 703. 3. PARAKKANDY KUNHIKRISHNAN, S/O.CHANDUKUTTY, DRIVER, PARAKANDY HOUSE, THILLANKERI P.O. 4. THE MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. ADV. SRI.SAJEEVKUMAR K.GOPAL, SC, KSRTC FOR R4 SRI.GRASHIOUS KURIAKOSE FOR R1 SHRI.JOHNSON P.JOHN, SC, KSRTC FOR R4 SHRI.V.V.NANDAGOPAL NAMBIAR, SC, KSRTC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.1697 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of February 2011 JUDGMENT Basheer, J. Appellant/insurance company has come up in appeal impugning the award passed by the Motor Accident Claims Tribunal primarily on two grounds: (a) The Tribunal has without any apparent reason or justification refused permission to the appellant to contest the case by invoking the provisions contained under Section 170 of the Motor Vehicles Act; though on three occassions the appellant had filed applications seeking such permission. (b) The Tribunal, while holding the appellant solely liable to indemnify the owner of the autorikshaw, has exonerated the owner, driver and insurer of the other offending vehicle which was involved in the head on collision, ignoring the finding entered by the same Tribunal in two other connected cases holding both vehicles guilty of negligence to the extent of 50:50. 2. The injured-claimant was one of the three passengers in the autorikshaw which collided against a bus belonging to the Kerala State Road Transport Corporation. Admittedly, it was a head on collision. According to the appellant, the driver of the bus was also equally negligent, if not more, in causing the accident. But learned counsel for the Corporation submits that the scene mahazar and the sketch prepared by the police will clearly show that the driver of the auto was totally at fault M.A.C.A.No.1697 OF 2005 :: 2 :: and therefore, the Tribunal was justified in fastening the entire liability to pay the compensation on the appellant and the driver and owner of the autorikshaw. 3. We do not propose to deal with the rival contentions raised by the parties on this point. But it may be noticed that the same Tribunal, while dealing with the claim petitions filed by the legal representatives of the two co-passengers in the autorikshaw, had entered a finding that the drivers of the bus and autorikshaw were equally rash and negligent and therefore had apportioned the liability as 50 : 50 between them. True copy of the awards passed in these two cases have been made available for our perusal. 4. It is contended by learned counsel for the appellant that the Tribunal had refused to take note of the above two awards even though the Tribunal was alerted. We refrain from making any observation on this issue at this stage. 5. As rightly pointed out by learned counsel for the appellant, the two doctors who were examined on the side of the claimants could not be cross examined by the counsel for the appellant, since permission was refused to contest the case as provided under Section 170 of the Act. The Tribunal while accepting the disability certificate has stressed on the fact that the doctors were not cross examined by anybody. Learned counsel M.A.C.A.No.1697 OF 2005 :: 3 :: has invited our attention to the contents of the certificate and also the nature of the injuries sustained by the claimant, in support of his argument that the compensation awarded by the Tribunal is extremely on the higher side. Yet again, we do not propose to deal with that issue at this juncture. 6. Keeping in view all the facts and circumstances of the case, we have no hesitation to hold that the Tribunal was not at all justified in rejecting the application filed by the appellant under Section 170 of the Act especially, since the owner and driver of the autorikshaw did not seriously and properly contest the case. 7. Having regard to the entire facts and circumstances, the finding entered by the Tribunal on issue No.1 is set aside. Appellant does not have a case that the claimant did not suffer injuries as a result of accident. Similarly, appellant also does not contend for the position that the claimant is not entitled to get any compensation. The only grievance of the appellant is that the compensation awarded by the Tribunal is on the higher side. 8. Keeping in view all the facts and circumstances, we direct the Tribunal to decide issue Nos.1 and 2 afresh after giving opportunity to all parties concerned to adduce further evidence in the matter. However, in the meanwhile the claimant shall be entitled to withdraw the amount now in deposit before the Tribunal pursuant to the direction issued by this M.A.C.A.No.1697 OF 2005 :: 4 :: court. If 50% of the award amount has not been deposited by the appellant already, it shall be done within one month from the date of receipt of a copy of this judgment. 9. The parties shall appear before the Tribunal on May 25, 2011. The Tribunal shall dispose of the case as expeditiously as possible, at any rate, within three months from the date of appearance of the parties. Appeal is disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes