IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 529 of 2003(A)
1. K.A.KUSUMAKUMARI, AGED 57 YEARS,
... Petitioner
2. J.K.JAYAN, AGED 30 YEARS, SON OF LATE
Vs
1. THE MANAGING DIRECTOR,
... Respondent
2. VIJAYAN PILLAI, VAZHAPPILLETH HOUSE,
For Petitioner :SRI.ANIL S.RAJ
For Respondent : No Appearance
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MRS. Justice K.HEMA
Dated :07/04/2008
O R D E R
J.B.KOSHY & K.HEMA, JJ.
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M.F.A.No.529 OF 2003
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Dated 7th April, 2008
JUDGMENT
Koshy,J.
Legal representatives of a deceased motor accident victim
filed an application for compensation contending that the accident
occurred due to the negligence of the second respondent driver of the
vehicle owned by the first respondent. In support of the application, first
applicant was examined. F.I.R., inquest report and postmortem
certificate etc. were produced. It was deposed that the accident
occurred due to the negligent driving of the second respondent driver.
Tribunal also found that first and second respondents remained absent
and they were set ex parte and no evidence was adduced by the first and
second respondents that the accident had occurred due to the negligence
on the part of the deceased. But, after that Tribunal found that the
accident occurred due to the negligence on the part of the deceased
himself without any evidence to that effect. Merely on the basis of scene
mahazar cause of accident cannot be found out as the position of the
vehicle may change immediately after the accident. Tribunal did not
consider the F.I.R. Whether both drivers can be found to be negligent
also was not considered. Finding of negligence on the deceased was
MFA.529/2003 2
found without any basis. It is true that monthly income of the
deceased claimed is above Rs.4,000/=. Claim under section 163-A of
the Motor Vehicles Act will not lie. In claim under section 166 and
163A, compensation has to be calculated under section 166 and claim
under section 163-A is not maintainable. This is a case of death.
Inquest report and F.I.R. were produced. Tribunal even went on to
find fault with for the absence of wound certificate. Death due to
injuries suffered in the accident is not disputed by any of the
respondents. Findings of the Tribunal are perverse. We set aside the
award and remand the matter for fresh consideration. Both parties
are allowed to adduce evidence before the Tribunal. Parties shall
appear before the Tribunal on 25.6.2008.
Appeal is allowed by way of remand.
J.B.KOSHY
JUDGE
K.HEMA
JUDGE
tks