IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 227 of 2005()
1. MRS.P.A. SAROJINI,
... Petitioner
2. MRS. THANKAMANI P.A.,
3. MR. P.A. DHARMARAJAN,
4. MR. P.A. RAGHUNANDHANAN,
5. THANKAMANI, W/O. LATE PANAVALAPPIL
6. JAYAN, S/O. LATE PANAVALAPPIL
7. JYOTHI PRAKASH, S/O. LATE PANAVALAPPIL
Vs
1. M.V. CHANDRAN, S/O. MACHINGAL VALLON,
... Respondent
2. MR.T.O. BIJU, S/O. THEKKANATH JOSE,
For Petitioner :SRI.V.BINOY RAM
For Respondent :SRI.GEORGE CHERIAN (THIRUVALLA)
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :01/09/2008
O R D E R
C.N.RAMACHANDRAN NAIR &
V.K.MOHANAN, JJ.
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M.A.C.A. No.227 of 2005
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Dated this the 1st day of September, 2008.
JUDGMENT
Ramachandran Nair, J.
The appellants have challenged the order of the MACT rejecting the
claim petition filed by them on the ground that accident is not proved. We
have heard counsel appearing for the appellants, Standing Counsel
appearing for the third respondent-Insurance Company and counsel
appearing for respondents 1 and 2. The case of the appellants is hat the
deceased, an 86 year old person was knocked down by an Avanti two
wheeler belonging to the first respondent while being driven by the second
respondent. Even though the victim died of head injuries after 49 days of
hospitalisation, the claim of motor accident was disbelieved by the MACT
for the reason that the person who took the injured to the hospital stated that
the accident was caused by a cycle. Further, there was a delay of 7 days in
launching the FIR. Counsel for the appellants relied on statement of the
Doctor who says that delay in giving intimation was on account of his
mistake. The contention of counsel for the Insurance Company is that the
Doctor was not bound to report accident because it was stated to be caused
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on account of cycle hitting the injured. In answer to this, counsel for the
appellants submitted that sometimes Avanti two wheeler which is a light
Moped, is referred to as cycle by the person who took the injured to
hospital. Strangely, the second respondent who caused the accident and
who is said to have accompanied the victim was not examined and he did
not give any statement confirming the accident. In any case we feel
rejection of the claim petition is not sustainable for more than one reason.
In the first place, accident is admitted and death also appears to be on
account of accident. Post Mortem certificate shows that head injury led to
the death of the injured who was 86 years old at the time of accident. The
only surviving dispute, therefore, is whether accident is caused by the cycle
or by the Avanti Moped which was covered by Insurance policy issued by
the third respondent. On going through the order, we find that the accident
was caused by cycle was also not attempted to be proved by the Insurance
Company in as much as no evidence was adduced. Secondly, there is
nothing strange in calling a Moped as a cycle also and in common parlance,
people refers to Moped also as a cycle. Respondents 1 and 2 also
confirmed the accident as one caused by the Moped while the same was
being driven by the second respondent. In the circumstances, we feel
appellants are entitled to some compensation, even though not to the extent
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claimed by them. We, therefore, set aside the award, but having regard to
the fact that the deceased was 86 years of age at the time of accident, we
award a total compensation of rupees fifty thousand which will be shared
equally among the five claimants(appellants 5 to 7 together to take only one
share along with others). The Insurance Company is directed to deposit
the compensation amount with interest at 7.5% p.a. from date of application
till date of deposit. Since the amount involved is very low, we direct the
Insurance Company to deposit the cheques in the name of the appellants as
above before the MACT without any delay. The appeal is allowed as above.
C.N.RAMACHANDRAN NAIR
Judge
V.K.MOHANAN
Judge
pms