Pius C. Kuriakose, J.@mdashThe claimant before the Motor Accidents Claims Tribunal, who continues to be in the following conditions on account of the injuries sustained by him in a road traffic accident has preferred this appeal being aggrieved by the award of the Motor Accidents Claims Tribunal under which the O.P was dismissed completely on the reason that the identity of the vehicle Maruti 800 Car bearing Registration No. KL-7/A 3600 as the offending vehicle has not been established:
1. State of semicoma requiring total medical support and dependent on artificial means for subsistence.
2. Severe reduction of day time alrthen and patient is unable to care for self in any situation or manner.
3. Complete inability to communicate or comprehend language symbols.
4. Inability to move all four limbs.
5. No reflex or voluntary control of urinary bladder function.
6. No reflex regulation or voluntary control of adoration.
2. The learned tribunal has expressed displeasure regarding the documents produced by the appellant for substantiating his claim for compensation under various heads. However, we are convinced of a careful reading of the award that the decision of the tribunal turned mainly on the basis of the finding that the identity of the offending vehicle has not been established by adducing cogent evidence.
3. Shri K.A. Sebastian, learned counsel for the appellant addressed extensive submissions before us. Our attention was drawn by the learned counsel to the pleadings raised by the contesting respondents and to the evidence adduced especially, Ext. A2. Ext. A2 is the police charge in the criminal case charge sheeted by the police against the second driver of the vehicle KL - 7/A 3600. The learned counsel also placed before the Court, the entire bunch of police records including the Mahazar prepared by the police in respect of seizure of the above vehicle as part of investigation of the criminal case.
4. Mr. Sebastian argued that the learned tribunal despite, Ext. A2 and the evidence of PW1 and PW2 on the side of the appellant to which there was no responsible counter evidence, came to the conclusion that the identity of the offending vehicle was not established particularly on the reason that the accident occurred at 7 pm and that at that time it will be difficult for anybody to identify the vehicle by its Registration No. KL - 7/A 3600.
5. Smt. T.C. Sowmiavathy, learned counsel for the insurance company submitted that it was the duty of the appellant to adduce cogent evidence and convince the learned tribunal that it was the alleged vehicle Maruti 800 Car bearing Registration No. KL-7/A 3600, which was involved in the accident. In the absence of such evidence, the tribunal cannot be blamed for the decision taken.
6. We have given our anxious consideration to the submissions addressed at the Bar. We have carefully gone through the impugned award. We made a quick survey of the evidence. In particular, we have perused Ext. A2 very carefully. We have gone through the pleadings also. We take into account the seizure mahazar prepared by the police in respect of vehicle KL-7/A 3600, even though the same was not put in evidence by the appellant before tribunal.
7. A reading of the written statement filed by the insurance company will show that they had issued a valid and subsisting policy when the accident had occurred. We do not find any specific denial of the allegation in the O.P that it was the Maruti 800 Car bearing Registration No. KL-7/A 3600 that was involved in the accident in question. Instead this is what is contended:
..........the petitioner has to prove that the vehicle involved in the alleged accident is the above said KL-7/A-3600 Maruti 800 car because neither in the FIR nor in the FIS the number of the car involved in the accident is not mentioned.
8. Pleadings are expected to be specific. A vague denial will not amount to denial at all. The contention that the adversary has to prove or a contention or that the adversary is put to proof, will not amount to a contention of denial, according to Mogha, in his classic work on law of pleadings. We do not find any specific denial of the definite allegation of the petitioner that it was Maruti 800 Car bearing Registration No. KL-7 A 3600 driven by the second respondent that was involved in the accident. The fourth respondent is admittedly registered owner and the present custodian of the vehicle in question. Despite service of notice on him, he did not contest the OP which contained a specific allegation that the second respondent was then driver engaged by him. Ext. A2 will show that after completion of the investigation, a final report was submitted by the police charge sheeting the second respondent for offences, inter alia, under Sections 279, 338 IPC and Section 134A of the Motor Vehicles Act. The registration number of the Maruti 800 car, KL-7/A-3600 is very clearly stated in Ext. A2 and the allegation in Ext. A2 is that the second respondent drove the said car in a rash and negligent manner and thus resulted in the accident in which the appellant sustained injuries. The seizure mahazar which was shown to us across the Bar by the learned counsel for the appellant, will show that the vehicle in question (KL-A/A 3600) was seized by the police about 10 months after the accident. The explanation offered by the learned counsel for the appellant for a report not being prepared in respect of the offending vehicle by the Assistant Motor Vehicle Inspector, is convincing.
9. Having considered the pleadings raised by the insurance company and by the fourth respondent who was expected to deny the allegations of the appellant regarding the involvement of his car in the accident and having made reappraisal of the evidence oral, documentary and circumstantial, we feel that probabilities are more that it was Maruti 800 car bearing Reg. No. KL-7/A-3600, the vehicle alleged by the appellant itself which was involved in the accident.
10. Hence, we find that the offending vehicle was no vehicle other than Maruti 800 car bearing Reg. No. KL-7/A-3600. As indicated earlier, the issue as to the compensation payable to the appellant has not been decided by the learned tribunal. We, therefore, are inclined to remit the OP back to the Motor Accidents Claims Tribunal, Ernakulam, so that, the learned tribunal can quantify the compensation payable to the appellant on the basis of the evidence already on record and further evidence which the learned tribunal will permit the appellant to adduce. The learned tribunal should permit the contesting respondents also to adduce counter evidence, if they want to and the award of compensation shall be passed after evaluating the entire evidence.
11. The result of the above discussion is that the impugned award is set aside. It is found that it was Maruti 800 Car bearing Registration No. KL-7 A 3600, which was involved in the accident. The OP is remitted back to the Motor Accidents Claims Tribunal, Ernakulam, and the learned tribunal will afford opportunity to both sides to adduce further evidence they want to and pass a revised award on the basis of the findings herein. The learned tribunal will pass revised award, within, three months of the date of receipt of a copy of this judgment.
