IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 44 of 2008()
1. JULIE SAJI, W/O LATE SAJI,
... Petitioner
2. BASIL, S/O LATE SAJI,
Vs
1. SAINUDHIN, S/O IBICHIKOYA,
... Respondent
2. ACHUKOYA, S/O AHAMMED,
3. THE NEW INDIA ASSURANCE CO. LTD.,
For Petitioner :SRI.V.RAJENDRAN (PERUMBAVOOR)
For Respondent :SRI.M.RAJAGOPALAN
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :29/07/2009
O R D E R
K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ.
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M.A.C.A. NO: 44 OF 2008
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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
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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.
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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
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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
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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/