IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2183 of 2007()
1. K.ANILKUMAR, S/O.RAMACHANDRA MENON,
... Petitioner
Vs
1. K.MOHANDAS, S/O.K.C.K.NAMBIAR, RESIDING
... Respondent
For Respondent :SRI.M.A.GEORGE
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :19/08/2008
O R D E R
M.N.KRISHNAN, J.
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M.A.C.A. No. 2183 OF 2007
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Dated this the 19th day of August, 2008
JUDGMENT
This appeal is preferred against the award passed by the
Principal Motor Accident Claims Tribunal, Kozhikode, in OP(MV)
2084/98. The appellant sustained injuries in a road accident. While
he was riding his motor cycle a jeep came in a rash and negligent
manner and dashed against the motor cycle. It is also seen that the
driver of the jeep is deleted from the party array. The Tribunal found
contributory negligence and deducted 50% and held that the claimant
is entitled to an amount of Rs.17,004/-. It is against that decision, the
claimant has come up in appeal.
2. Heard the counsel for the appellant as well as the Insurance
Company. At the outset, I may like to point out that when there is a
question regarding negligence, contributory negligence or even
composite negligence, the junction of the driver is a must. The Apex
court has reiterated that fact in the recent decisions. It is not proper
to enter into a finding that a particular driver is negligent without
making him a party in the proceeding. Therefore, the driver has to be
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impleaded in the case. Secondly the Tribunal found that only the FIR
had been produced. FIR is not the encyclopedia of all materials and
it is only a document which sets the criminal law in motion. In order
to decide the case of negligence there should be scene mahazar,
charge sheet etc. and that further evidence has also to be adduced
by the party to establish the negligence especially when the claim is
under section 166 of the Motor Vehicles Act. Here, except the FIR,
no other document is produced and therefore it is also a matter that
requires reconsideration.
3. So far as quantum is concerned, the Tribunal did not accept
the disability certificate of the Medical Board for the reason that it has
been signed only by two Doctors. An opportunity has to be given to
the claimant to explain or to examine the Doctors to prove the factum
of disability. So that factor also requires reconsideration.
Therefore, the award under challenge is set aside and the
matter is remitted back to the Tribunal for fresh disposal of the same
after considering the following:
(i) The claimant shall implead the driver of the jeep as a
necessary party.
(ii) The claimant as well as the Insurance Company shall be
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given an opportunity to produce documentary as well as oral
evidence in support of their respective contention regarding
negligence.
(iii) The Tribunal shall refix the quantum of compensation as
well, after affording an opportunity to prove the disability by permitting
the claimant to examine the Doctors.
Parties are directed to appear before the Tribunal on 26.9.08.
M.N.KRISHNAN, JUDGE
vps
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