JAMES ABRAHAM Vs. PRASANTH S/O. SASI,

JUDGEMENT

(1.) THE first respondent before the Tribunal, who is the owner of the vehicle involved in the accident, is challenging the award of the Tribunal in this appeal. The first respondent/claimant sustained injuries in a motor accident which occurred at 4.30 p.m. on 26/12/04. The claim petition was filed with the averments that the accident occurred when he was travelling in the vehicle (jeep) driven by the second respondent therein and that he was thrown out of the vehicle due to rash and negligent driving of the second respondent. On consideration of evidence adduced, the Tribunal found that the first respondent/claimant is entitled to get compensation to the tune of Rs. 2,68,230/ -. The said amount was ordered to be paid along with 7.5% interest per annum and Rs. 5,000/ - as cost. The first appellant herein was directed to make payment of the amount finding that the third respondent, insurer of the vehicle is not liable, because the policy in question will not cover compensation payable to any passengers carried in the vehicle. The vehicle in question is a private jeep and the claimant was considered only as a gratuitous passenger.

(2.) SRI Sheji P. Abraham, the learned Counsel appearing for the appellant had pointed out that the version put forth by the first respondent/claimant before the Tribunal is totally contradictory to the version illustrated in the police records. Exts.A1 to A5 are documents marked on behalf of the first respondent/claimant and it pertains to the criminal case registered by the police authorities with respect to the accident. On a perusal of Exts.A1 to A5 documents it is revealed that the entire police case is proceeded on the basis that the accident occurred when the jeep in question had hit the claimant, who was a pedestrian. Therefore, it is pointed out that the documents produced by the claimant himself will prove that the claim put forth before the Tribunal is not true and correct. According to the appellant, since no oral evidence was adduced before the Tribunal, the appellant was not in a position to controvert version of the claimant as illustrated in the claim petition. It is further contended that, if the accident is occurred as enumerated in the Police records, the claimant will be in the status of a third party and in such case the third respondent/insurer will be liable for payment of the compensation. But, on a perusal of copy of the written statement filed by the appellant before the Tribunal, we notice that no such contention based on the police records is seen raised before the Tribunal. At the same time, we notice that evidence adduced before the Tribunal through Exts.A1 to A5, marked on behalf of the claimant, reveals a different version regarding the accident, which will run contradictory to the version put forth by the claimant. Inspite of those documents produced in evidence, the Tribunal has omitted to notice the contents thereof.

(3.) IN the result, the impugned award of the Tribunal is hereby set aside on condition of the appellant/first respondent deposits a sum of Rs. 25,000/ - before the Tribunal towards part payment of the compensation on a provisional basis, within a period of one month from today. The appellant shall also pay a sum of Rs. 5,000/ - as cost to the High Court Legal Services Committee on or before 09/05/2010 and produce receipt before the Tribunal. On compliance of the conditions as stipulated above, the Tribunal shall take up the case and to dispose of the same afresh after affording opportunity to all the parties to make necessary amendments in the pleadings and to adduce evidence in the claim petition. The parties are directed to appear before the Tribunal on 19/04/2010. The Tribunal shall dispose of the case at the earliest possible, at any rate within a period of three months from the date of appearance.