Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE6H DAY OF NOVEMBER201315TH KARTHIKA, 1935 MACA.No. 2041 of 2009 ( ) -------------------------- AGAINST THE AWARD IN OP(MV)No. 888/2004 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MUVATTUPUZHA ====================== APPELLANT/PETITIONER: -------------------------------------- JOSE.N.I., S/O.IYPE, NELLIKKUNNEL HOUSE NJAYAPPILLI P.O., KOTHAMANGALAM. BY ADV. SRI.SOORAJ T.ELENJICKAL RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. A.P.KURIAN, S/O PAILY, ATHIRAMPUZHA HOUSE POTHANICADU, KOTHAMANGALAM.
2. AHAMMED OOMAR MITHA,1ST FLOOR BODE HOUSE DR.MINSTON ROAD, BEST MARG COLABA, MUMBAI-400 001 MAHARASHTRA.
3. THE UNITED INDIA INSURANCE CO.LTD., PERUMBAVOOR. R3 BY ADV. SRI.K.SANDESH RAJA, SC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON0611-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SD S.S. SATHEESACHANDRAN, J., --------------------------------------- M.A.C.A.No.2041 OF2009--------------------------------------- Dated this the 6th day of November, 2013. JUDGMENT
Claimant is the appellant. His claim was dismissed by tribunal holding that he failed to establish that the accident alleged involving a motor vehicle was caused by negligence of its driver, the first respondent. Aggrieved by the dismissal of his claim, he has preferred this appeal.
2. Notice given to respondents. Third respondent, insurer, alone has entered appearance. Before the tribunal, first and second respondents, driver and owner respectively of the motor vehicle, remained ex-parte. Appeal was preferred with a delay petition on which notice was given to respondents. First respondent, driver, after acceptance, remained absent and service against the second respondent, owner, was declared sufficient. Having regard to the fact that third respondent, insurer, alone contested proceedings before tribunal and also taking note that there is no dispute that the vehicle was covered by valid policy but the claim was dismissed doubting the case of M.A.C.A.No. 2041/2009 2 the claimant over negligence imputed against first respondent in causing the occurrence, I find that notice to first and second respondents in the appeal is not necessary and hence it is dispensed with.
3. I heard counsel for claimant and also third respondent insurer. Three different versions over the occurrence are spelt out by materials tendered by claimant was the conclusion formed by tribunal to hold that the claimant failed to establish the accident occurred due to the negligence of the first respondent. When the claimant gave information over the occurrence to police he gave a version that while he overtook a bus parked beside the road in a bike, the offending vehicle dashed against his bike and thereby the accident occurred. His wound certificate reflected that the bike hit against the car. In evidence claimant disowned his version referred to above in FIR. The above circumstances prompted the tribunal to hold that there are three different versions over the occurrence. However, no definite finding was entered by the tribunal whether the claimant was culpable for the occurrence or even in what way he contributed for the accident M.A.C.A.No. 2041/2009 3 with the first respondent. Claim cannot be rejected holding that there are different versions over the occurrence, when accident stood admitted unless a conclusion is formed that the claimant, rider, of one of the vehicles alone caused the occurrence by his negligence. In the case third respondent, insurer, who was granted permission to take all defences available to the insured allowing its application moved under Section 170(b) has only disputed the negligence imputed against first respondent, but, not contended that the occurrence arose on account of the negligence of claimant. I do take note of the submission made by learned counsel appearing for the third respondent that the place of occurrence would clearly demonstrate that there was at least contributory negligence on the part of the claimant. Since tribunal has not gone into that question, it is not proper to express any opinion whether the claimant contributed in any manner for the occurrence. Rejection of his claim without going into question as to who among the motorists was negligent for the occurrence, but, solely on holding that three versions of the occurrence are presented before the tribunal, cannot be M.A.C.A.No. 2041/2009 4 sustained.
4. Setting aside the award tribunal is directed to take back the claim petition on its file and dispose it on merits taking note of the observations made and in accordance with law. Parties are directed to appear before tribunal on 02.12.2013. Sd/- S.S. SATHEESACHANDRAN JUDGE sd // True Copy // P.A. to Judge