IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1720 of 2005()
1. P.M.PAULOSE, S/O.MATHEW ULAHANNAN,
... Petitioner
Vs
1. ANISH CHANDRAN, S/O.CHANDRAN,
... Respondent
2. MOHANAN, S/O.PARAMESWARAN,
3. ORIENTAL INSURANCE COMPANY LTD.,
For Petitioner :SRI.P.M.JOSHI
For Respondent :SRI.GEORGE CHERIAN (THIRUVALLA)
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :01/12/2010
O R D E R
A.K. Basheer & P.Q. Barkath Ali, JJ.
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M.A.C.A.No. 1720 of 2005-D
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Dated this the 1st day of of December, 2010
Judgment
Basheer, J:
Appellant is the claimant before the Motor Accidents
Claims Tribunal. He filed the petition seeking
compensation under Section 166 of the Motor Vehicles Act
alleging that he sustained serious injuries like supra
condylar fracture and inter comminuted fracture of femur
(L), apart from cervical spine injury in a road traffic
accident that occurred on February 2, 2000 at
Kinginimattom. According to the appellant he was riding
on his scooter when another two wheeler owned by
respondent No.1 and driven by respondent No.2 dashed
against it. Appellant contended that the accident occurred
solely due to the rash and negligent driving of respondent
No.2. He claimed a total sum of Rs.12 lakhs towards
compensation from the respondents.
2. The Tribunal after considering the materials
available on record which consisted of the oral testimony of
Pws.1 to 5 and Exts.A1 to A16 produced by the appellant,
came to the conclusion that there is no satisfactory evidence
to show that the accident had occurred because of the rash
MACA.1720/05. : 2 :
and negligent driving by respondent No.2. Resultantly
the Claim Petition was dismissed. Hence this appeal.
3. It is on record that the appellant was proceeding
from west to east on his scooter while the alleged offending
vehicle was coming from east to west. The tarred road at the
point of accident had a width of 4 meters. The two Police
personnel gave evidence in support of the version given by
the appellant as regards the occurrence. It also came on
record that the Police had charge sheeted respondent No.2
for the offences under Section 279 and 338 IPC after due
investigation. The Tribunal after considering the oral and
documentary evidence was however not impressed with the
evidence adduced by the appellant.
4. We have carefully perused the materials available
on record. In our view, the Tribunal was not justified in
holding that the appellant had not established his case. It
may at once be noticed that there was no contra evidence
from the side of the respondents. Significantly, respondents
1 and 2 did not choose to appear before the Tribunal and
therefore they were set ex parte. More importantly, the
Police officials who had prepared the scene mahazar and
conducted the investigation categorically stated about the
process of investigation and also the fact that respondent
MACA.1720/05. : 3 :
No.2 was charge sheeted on the basis of the investigation.
But still the Tribunal did not seem to have been impressed
with the uncontroverted evidence adduced by the appellant.
5. Having perused the reasoning of the learned
Judge in the award, we are not at all satisfied with the
manner in which the learned Judge has dealt with the issue.
As has been mentioned already, the oral and documentary
evidence adduced by the appellant did clinchingly show
that the accident occurred because of the rash and negligent
driving of the two wheeler by respondent No.2. In that
view of the matter, the finding entered by the Tribunal on
issue No.1 in the award is liable to be set aside. We do so.
6. As has been mentioned already, the appellant
had claimed a total sum of Rs.12 lakhs towards
compensation. The specific case of the appellant is that he
had undergone treatment for more than 1= years in
connection with the injuries sustained by him. He had
produced the medical records before the Tribunal but the
Tribunal did not consider any of those documents. It is also
seen from the records that the Medical Board had certified
that appellant suffered 34% permanent disability.
7. We do not propose to refer to or deal with the
above aspect any further at this stage. In our view, the
MACA.1720/05. : 4 :
Tribunal has to consider the case of the appellant as regards
the quantum of compensation that he might be entitled to
get.
8. In that view of the matter, the case is remanded
to the Tribunal which shall quantify the amount of
compensation, if any, payable by the respondents. The
Tribunal shall afford opportunity to the parties to adduce
further evidence, if they so choose. The Tribunal shall
dispose of the case as expeditiously as possible, at any rate
within two months from the date of receipt of a copy of this
judgment.
9. Parties shall appear before the Tribunal on
December 20, 2010.
Appeal is disposed of in the above terms.
A.K. Basheer
Judge.
P.Q. Barkath Ali
Judge.
an.