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Judgment
Ramakrishna Pillai, J.—The non suited claimant in OP(MV) No.133/02 on the file of the Motor Accidents Claims Tribunal, Thalassery, has come up in appeal. Allegedly, while the appellant was riding on the pillion of a two wheeler on 01/07/2001, it collided with another two wheeler, as a result of which he sustained injuries. The appellant had claimed a sum of Rs.2,46,500/- as compensation. The learned Tribunal quantified the amount of compensation and arrived at a sum of Rs.40,750/- under various heads. However, the claim petition was dismissed on the basis of the finding of Issue No.1 that the appellant failed in establishing that the accident happened due to the negligence of the driver of the motorcycle bearing Reg. No. KL 12/9569, which collided with the bike by which the appellant was travelling. Aggrieved by the dismissal of this claim petition, this appeal has been preferred.
We have heard the submissions of the learned counsel for the appellant and the learned counsel for the third respondent insurance company. We have also perused the impugned award.
In the claim petition, the appellant impleaded the owner and driver of the motorcycle, by which he was travelling. But, subsequently, without proposing any amendment in the claim petition, the owner and driver of the other vehicle, bearing Reg. No. KL 12/9569 were impleaded. The only document produced by the appellant before the Tribunal was Ext.A1, which is the copy of the F.I.R in Crime No.307/01 of Taliparamba Police Station. It was launched by the driver of the motorbike by which the appellant was travelling. What was alleged in the F. I. Statement was that on 01/07/2001, the driver of the motorcycle bearing Reg. No. KL 12/9569 drove the said vehicle in a rash and negligent manner causing to hit the motor vehicle of the informant. Apart from Ext.A1, no other document is seen produced from the side of the appellant to substantiate his case. No oral evidence was also adduced.
The learned Tribunal answering Issue No.1 found that the appellant, failed to establish negligence of the driver of the motorcycle bearing Reg. No. KL 12/9569. It is also relevant to note that the third respondent insurance company had taken a specific contention in the written statement that the accident was occurred not because of the negligence on the part of the driver of the aforesaid vehicle. In spite of the said contention, the appellant did not care to adduce any reliable evidence to substantiate his claim. The learned counsel for the appellant submitted before us that if an opportunity is afforded to the appellant, he would be able to establish the negligence of the driver of the two wheeler which collided with the vehicle by which he was travelling. This prayer was opposed by the learned counsel for the third respondent insurance company.
Though the learned counsel for the appellant would further submit that the driver of the two wheeler bearing Reg. No. KL 12/9569 was charge sheeted, however, the charge is not proved. If the driver of the aforesaid vehicle was charge sheeted, the appellant has a fair chance of winning his case. Hence, we are of the view that the appellant be given an opportunity for proving the same, and for that the case can be remanded to the Motor Accidents Claims Tribunal, Thalassery, imposing certain conditions, as the third respondent insurance company is being driven to the risk of contesting the case once again.
In the result, the appeal is allowed. The findings in the award, so far it relates to the negligence, i.e. finding on issue No.1, is set aside. OP (MV) No.133/02 on the file of the Motor Accidents Claims Tribunal, Thalassery, is remanded to the Tribunal, subject to the following conditions:
1) The appellant shall pay a sum of Rs.3,000/- as cost to the Kerala High Court Advocates'' Welfare Fund Trust, within a period of two weeks from today and produce the receipt before the learned Tribunal.
2) The finding of the Tribunal regarding the quantification of the amount of compensation in the award, shall stand as the same is not modified.
3) The learned Tribunal shall afford an opportunity to both sides to adduce further evidence, if any, for considering the issue of negligence.
4) The learned Tribunal shall pass revised award, within two months from the date of appearance of the parties.
5) Party shall appear before the learned Tribunal on 25/04/2012.
6) The amount of compensation, if any, awarded to the appellant will not carry interest from 18/03/2008 till date.