IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2374 of 2007()
1. KRISHNAN,
... Petitioner
Vs
1. VARGHESE THOMAS,
... Respondent
2. MADHU,
3. THE MANAGER,
For Petitioner :SRI.N.ASHOK KUMAR
For Respondent :SRI.IYPE JOSEPH
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :14/01/2010
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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M.A.C.A No.2374 of 2007
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Dated this the 14th day of January 2010
JUDGMENT
BASANT, J.
Claimant is the appellant. This claim for compensation was
dismissed by the court below taking the view that the allegations
in the petition are inconsistent with the real manner in which the
accident had taken place. This is revealed convincingly from the
alleged cause narrated to the doctor by the claimant in Ext.A7
wound certificate, which is proved satisfactorily in the case. The
allegation in Ext.A7 was that the appellant had suffered the
injuries while he was loading articles in a tempo van. According
to the statement in Ext.A7 to the doctor, when the rope broke,
the appellant had fallen down. The court below took the view
that inasmuch as there is no allegation of negligence validly
raised, the claim is not liable to succeed.
2. We have heard arguments on both sides. After
discussions at the bar, the learned counsel for the appellant
submits that if not on the basis of tortious liability, the appellant
is at any rate entitled to compensation under the Workmen’s
Compensation Act and the insurer cannot dispute the liability for
M.A.C.A No.2374 of 2007 2
payment of compensation for loading and unloading workers
engaged for loading articles in the vehicles. The court below
should at least have considered the claim under Section 167 of
the Motor Vehicles Act and awarded at least the compensation
payable under the Workmen’s Compensation Act.
3. Called upon to substantiate the claim for
compensation under the Workmen’s Compensation Act, the
learned counsel for the appellant submits that the matter may be
remanded to give the appellant an opportunity to adduce proper
evidence, as at the moment there is no satisfactory evidence
adduced to prove that there has been permanent physical
disability and consequent reduction in earning capacity.
4. We feel that the appellant is entitled to compassion,
notwithstanding the fact that apparently unacceptable version
appears to have been advanced in the claim petition. But that
cannot take away his right to claim amounts which, on the
finding recorded by the Tribunal, he may be entitled to. In this
view of the matter, we are persuaded to agree that the request
for remand can be accepted.
5. In the result:
a) This M.A.C.Appeal is allowed in part;
M.A.C.A No.2374 of 2007 3
b) Accepting the request of the learned counsel for the
appellant, the dismissal of the claim petition is set aside and the
Tribunal is directed to dispose of the O.P afresh in accordance
with law after giving the parties opportunity to adduce
appropriate evidence. The parties shall be given opportunity to
amend their pleadings also at the discretion of the court below;
c) Parties are directed to appear before the Tribunal on
15.02.2010.
6. The Registry shall forthwith forward the records to
the Tribunal. We direct the Tribunal to dispose of the matter
afresh as expeditiously as possible – at any rate, within a further
period of 4 months from 15.02.2010. We say so, because the
accident in the instant case, we note, had taken place as early as
on 15.01.1997.
7. Compliance shall be reported to this Court.
(R.BASANT, JUDGE)
(M.C.HARI RANI, JUDGE)
rtr/-