IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1221 of 2006()
1. SHAIJU, S/O. AUGUSTHY,
... Petitioner
Vs
1. AUGUSTHY, S/O. CHAKKU,
... Respondent
2. SHAJI, S/O. AUGUSTHY,
3. M/S. ORIENTAL INSURANCE CO. LTD.,
For Petitioner :SRI.K.JAJU BABU
For Respondent :SRI.A.R.GEORGE
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :01/07/2008
O R D E R
M.N.KRISHNAN, J.
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M.A.C.A. No. 1221 OF 2006
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Dated this the 1st day of July, 2008
JUDGMENT
This appeal is preferred against the award passed by the
Motor Accident Claims Tribunal, Perumbavoor, in OP(MV) 2189/94. It was
an application for compensation filed by the claimant alleging that he
sustained serious injurious in a jeep accident, which was driven by the 2nd
respondent in the claim petition. Originally the claim was allowed and in
appeal the matter was remitted back to the Tribunal for examination of the
Doctors who had issued the wound certificate in order to find out what has
been stated therein with respect to the nature of the accident. After
remand, two Doctors namely Anandam Radhakrishnan and Sajan P.
Augustine were examined. The material documents were Ext.A5 wound
certificate and Ext.X1(b) an intimation to the police regarding the accident.
In Ext.A5 is the medical certificate wherein the history and alleged cause of
injury was stated as “while driving a jeep it overturned around 5 p.m. on
4.1.94 at Ayyampuzha.” Ext.X1(b) is the intimation given on the basis of
this wound certificate to the Police. RW2 is the Doctor who has recorded
the statement in the wound certificate. He had deposed that the injured
was taken to the hospital by his father. It is stated before me that “while
driving the jeep it overturned at a bend about 5 p.m. on 4.1.94 at
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Ayyampuzha.” He also deposed that the police intimation was given by
Dr. Anandam Radhakrishnan. While he was cross-examined he would
depose that at that time he was in the causality department and it was the
bystander who has given the information. Nothing has been brought out to
show that this Doctor had any enmity or bias against the injured in the
accident. Similarly the evidence of RW2 also would indicate that on the
basis of the wound certificate the intimation has been given to the police.
So Ext.A5 and Ext.X1(b) would certainly militate against the claim of the
appellant. It is true that the police after due investigation has filed a charge
sheet against the 2nd respondent, who has pleaded guilty, and therefore it
is contended that the case of the Insurance Company is not correct.
These things are happening only at a subsequent stage and even the first
information statement is only given on the next day. So the first piece of
material supplied immediately after the accident and that too also has been
given by the father of the claimant. Tribunal has considered the matter and
also looked into the preponderance of probabilities and further found fault
with the police for not making any enquiry as to the statement in Ext.A5
and Ext.X1(b). The Tribunal also found that the nature of injury sustained
are very serious in nature and no other persons had suffered any injury,
which may also indicate that the vehicle was driven by the claimant himself.
The Tribunal also held that if the 2nd respondent was the driver of the jeep
he would have also sustained injuries. But in the absence of the same it
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has to be held that what is projected by the claimant is not correct. The
court ultimately found that while driving the jeep it hit on a kayyala and
overturned is found to be correct and the first information statement was
later given to create a story so as to develop a case. I agree with the
Tribunal that importance has to be given to the entries in Ext.A5 and Ext.X1
(b) and it is not tainted with any motive or illegality.
2. Therefore, I concur with the finding of the Tribunal. Further it
has to be stated that the Tribunal had the opportunity to see the witnesses,
their demenour and appreciate the same which also should not be lightly
brushed aside by the appellate court.
The appeal lacks merit and it is accordingly dismissed. I make it
clear that if any amount is withdrawn by the claimant in the case, he is
bound to reimburse it and in case of non imbursement, the Insurance
Company can execute for realisation of the same by putting this award for
execution.
M.N.KRISHNAN, JUDGE
vps
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