SOSAMMA PAULOSE Vs. R RAMACHANDRAN

JUDGEMENT

(1.) THE legal heirs of one Poulose (being his widow and children) who lost his life in a road traffic accident are aggrieved by the award passed by the Tribunal dismissing the claim petition filed by them under Section 166 of the Motor Vehicles Act upholding the contention raised by the 4th respondent Insurance Company that the car having Registration No.KL-7AF/3654 alleged by the appellants to have caused the accident was not involved in the accident. Before the Tribunal contest was raised only by the Insurance Company. Neither the third respondent driver nor the first respondent owner of the car raised any contest. THE contest raised by the Insurance Company mainly was as already indicated that though it is true that the car in question was insured with them the said car was never involved in the accident which resulted in the death of Sri.Paulose. At trial the evidence consisted of Exts.A1 to A6, Exts.B1 to B2(a), Ext.X1 and the oral evidence of PW1 who investigated Ext.A1 crime and submitted Ext.A3 charge sheet against the third respondent. THE further oral evidence was that of PW2 who claimed to be an ocular witness to the accident. THE learned Tribunal on evaluating the evidence came to the conclusion that the oral evidence adduced by PW1 and PW2 was not credible as there were inconsistencies inter se between their testimonies and also as PW2 the eye witness had given a version which differed materially from the version he has given before the Magistrate as revealed by Ext.X1 CD statement. THE learned Tribunal also took the view that the version of PWs.1 and 2 that the offending car was intercepted by the local public immediately after the accident which occurred at 7.00 a.m on 23/12/01 at a spot some four kilometres to the West of the accident spot, was not believable as the police took custody of the vehicle only four days thereafter. It was accordingly concluded by the learned Tribunal that the evidence adduced by the appellants fell short of proving the case alleged by them regarding the involvement of the car KL-7AF/3654 in the accident. On the basis of that finding, the learned Tribunal dismissed the OP.

(2.) IN this appeal various grounds are raised by the appellants urging that the appreciation of the evidence adduced by the appellants by the learned Tribunal was not proper and that the probabilities of the matter was not considered by the learned Tribunal. It is also highlighted that the learned Tribunal did not draw necessary inferences in this case from the circumstance that the INsurance Company did not adduce any independent evidence notwithstanding Ext.A3 charge sheet laid by the police against the third respondent driver.

(3.) WE having given our anxious consideration to the rival submissions addressed at the Bar and having kept in mind the pleadings raised by the parties, are of the view that in the teeth of Ext.A3 which was allowed to be brought on evidence without any objections raised on the part of the Insurance Company, the company had a duty to adduce counter evidence. WE feel that opportunity can be given to the fourth respondent Insurance Company to adduce counter evidence and dislodge the presumptions aroused by Ext.A3. As the matter is going back to the Tribunal the learned Tribunal will examine the merits of the contentions of the Insurance Company that they are entitled for recovery right in view of the unauthorised transfer of ownership by the insured, also.