IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 MACA.No. 44 of 2008(A) --------------------- OPMV.536/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA .................... APPELLANT(S): APPELLANTS/CLAIMANTS ---------------------------------- 1. JULIE SAJI, W/O LATE SAJI, AGED 26 YEARS, PUNNASSERIYIL HOUSE, PATTANIKOOP, P.O.PERIKALLOOR, PULPALLY, S.BATHERY TALUK, WAYNAD DISTRICT. 2. BASIL, S/O LATE SAJI, AGED 8 YEARS(MINOR) PUNNASSERIYIL HOUSE, PATTANIKOOP, P.O.PERIKALLOOR, PULPALLY, S.BATHERY TALUK, WAYNAD DIST. REP. BY THE NEXT FRIEND AND MOTHER JULIE SAJI, PUNNASSERIYIL HOUSE, P.O.PERIKALLOOR, PULPALLY, S.BATHERY TALUK, WYNAAD DIST. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): RESPONDENTS -------------------------- 1. SAINUDHIN, S/O IBICHIKOYA, AYYIRAM HOUSE, PALLIKANDI, AZHEEKAL ROAD, CALICUT. 2. ACHUKOYA, S/O AHAMMED, AGED 47 YEARS, VADAKKEVEETTIL HOUSE, ERAVANNOOR P.O., NARIKUNI, CALICUT DISTRICT. 3. THE NEW INDIA ASSURANCE CO. LTD., CALICUT BRANCH, CHEROOTTY ROAD, CALICUT. ADV. SRI.M.RAJAGOPALAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2009, THE COURT ON 29/07/2009 DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. `````````````````````````````````````````````` M.A.C.A. NO: 44 OF 2008 ```````````````````````````````````````````````` Dated this the 29th Day of July, 2009. JUDGMENT Joseph Francis J. This appeal is filed by the petitioners in O.P.(M.V.) No: 536 of 2002 on the file of M.A.C.T., Kalpetta. Respondents 1 to 3 herein are the respondents 1 to 3 in that O.P., which was filed under Section 166 of the Motor Vehicles Act. 2. The allegation is that on 9.5.2002 at about 5.00 a.m. deceased Saji was riding his Motor Cycle bearing No:12 B/1829 from Bathery to Pulpally and when he reached near K.S.E.B. office, a lorry bearing No: 9D/1998 driven by the second respondent in a rash and negligent manner hit against the Motor Cycle, as a result of which Saji fell down and sustained serious injuries and while undergoing treatment in the hospital, he died M.A.C.A . NO: 44 OF 2008 :2: due to the injuries sustained in the accident. The accident was due to the rash and negligent driving of second respondent. The first respondent was the owner and third respondent was the insurer of the lorry. The first petitioner is the wife and second petitioner is the minor son of deceased Saji. They claimed Rs.5,00,000/- as compensation. 3. In the Claims Tribunal, first and second respondents remained exparte. Third respondent filed a written statement admitting the policy of the lorry and contends that the accident was due to the negligence of Saji and that the compensation claimed is excessive. Before the Claims Tribunal, PW1 and PW2 were examined and Exts. A1 to A7 and B1 and B2 were marked. The learned Claims Tribunal on considering the evidence, dismissed the petition on the finding that the accident was due to the negligence of deceased Saji. Against that award, the petitioners filed this appeal. M.A.C.A . NO: 44 OF 2008 :3: 4. Heard the learned counsel for the appellants and learned counsel for the third respondent. 5. Learned counsel for the appellants submitted that if the evidence on record is not sufficient to arrive at a correct conclusion with regard to the accident, the case may be remanded to the Claims Tribunal for the purpose of adducing further evidence. It is now settled position of law that while considering the claim petition, the Tribunal is required to hold an enquiry and is not to act as a criminal court so as to find whether the petitioners have established the occurrence beyond any shadow of doubt. In the enquiry if there is prima facie evidence of occurrence, there is no reason to disbelieve such evidence. In the present case, the first petitioner is examined as PW1. PW1 is not an eye witness to the accident. PW2 is the brother-in-law of the deceased. PW2 swears that at the time of accident, he was riding on a motor cycle and Saji was proceeding in another motor cycle and at that time a lorry M.A.C.A . NO: 44 OF 2008 :4: came and hit against the motor cycle of Saji, as a result of which Saji sustained serious injuries and that the accident was due to negligence of the driver of the lorry. But in the police records, PW2 is not shown as an eye witness. Ext.A1 F.I. statement is not given by an eye witness to the accident. Ext.A2 Scene mahazar was prepared, as pointed out by the first informant, who is not an eye witness to the accident. In the Ext.A1 statement, the allegation is that motor cycle hit on the back of the lorry and when the lorry driver tried to take lorry forward, the first informant objected from doing so and then the lorry driver parked lorry near to the spot of the accident. In the Ext.B2 charge sheet, the allegation is that motor cycle driven by Saji hit against a lorry which was parked on the side of the road with parking lights on. On going through the evidence on record, we are of the view that some more evidence is required to arrive at a correct conclusion with regard to the cause of the accident. For that purpose, the case has to be remanded to M.A.C.A . NO: 44 OF 2008 :5: the Claims Tribunal. Accordingly this appeal is allowed. The award in O.P.(M.V.) No:536 of 2002 on the file of M.A.C.T. Kalpetta dismissing the petition is set aside and the case is remanded to the Claims Tribunal for a fresh disposal in accordance with law, after giving sufficient opportunity to both parties to adduce fresh evidence. Parties are directed to appear before the Claims Tribunal, Kalpetta on 28.8.2009. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/