IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1209 of 2007()
1. NATIONAL INSURANCE COMPANY LIMITED,
... Petitioner
Vs
1. REMA, W/O. PREMARAJAN,
... Respondent
2. KUNHUNNI, S/O. KARUPPUNNI,
3. THE ORIENTAL INSURANCE COMPALY LIMITED,
For Petitioner :SRI.MATHEWS JACOB (SR.)
For Respondent :SRI.V.E.ABDUL GAFOOR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :08/08/2008
O R D E R
M.N.KRISHNAN, J
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MACA No.1209 OF 2007
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Dated this the 8th day of August 2008
JUDGMENT
This appeal is preferred against the award of the Motor Accidents
Claims Tribunal, Tirur in O.P.(MV)No.643 of 2004. The Tribunal found
that the first respondent in the claim petition is responsible for the accident
and directed the 3rd respondent insurance company to deposit the amount. It
is against that decision the present appeal is preferred by the insurance
company.
2. The accident arose on account of a collision between an
autorickshaw and a car. A scene mahazar was prepared which indicates that
the road was having a width of 9 meters at the place of the accident and the
accident had taken place 1.50 meters west of the eastern tar end. The car
was proceeding from north to south and the autorickshaw was proceeding
from the opposite direction. The correct side of the car was eastern side and
that of the autorickshaw was western side. The Tribunal in paragraph 10
had discussed the matter and held that it appears that there is inconsistency
between paragraph 1 and 2 of the scene mahazar. There is absolutely no
MACA 1209/2007 -:2:-
inconsistency. What is stated in the first paragraph is that the accident had
taken place 1.50 meters west of the eastern tar end and in the second
paragraph what is stated is the accident had taken place 7.50 meters east of
the western tar end. Both these are the same and there cannot be any
inconsistency. Further complication is created in the charge sheet where the
place of accident is stated on the western side of the road. To crown all
these things, the claimant did not enter the box and give evidence. I am
afraid that this inconsistency has led to the incorrect arrival of a decision
and therefore the matter requires reconsideration. If both drivers are
negligent apportionment has to be done and therefore the award under
challenge is set aside and the matter is remitted back to the Tribunal for
fresh consideration after affording opportunity to all concerned to produce
both documentary and oral evidence in support of their respective
contentions and then dispose of the matter in accordance with law. Parties
are directed to appear before the Tribunal on 18.9.2008.
M.N.KRISHNAN, JUDGE
Cdp/-