IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2759 of 2008()
1. P.ANEESHKUMAR, S/O.SADANANDAN, AGED 42
... Petitioner
Vs
1. THE MANAGING PARTNER, M/S. EMPEE CREDIT
... Respondent
2. ORIENTAL INSURANCE COMPANY LIMITED,
For Petitioner :SMT.LATHA PRABHAKARAN
For Respondent :SRI.V.M.KURIAN
The Hon'ble MR. Justice R.BASANT
Dated :06/04/2009
O R D E R
R.BASANT & C.T.RAVIKUMAR, JJ.
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M.A.C.A No.2759 of 2008
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Dated this the 6th day of April, 2009
JUDGMENT
BASANT, J.
Claimant before the Tribunal is the appellant before us.
His claim for compensation was dismissed by the impugned
award on the ground that satisfactory evidence has not been
adduced. No oral evidence whatsoever is adduced. Only Ext.A1,
copy of the accident register cum wound certificate has been
produced. The Tribunal, in these circumstances, came to the
conclusion that the claim has not been proved. Accordingly the
Tribunal proceeded to pass the impugned award.
2. The learned counsel for the appellant contends that
the appellant was not given real and reasonable opportunity to
adduce evidence in support of his claim petition. In these
circumstances, the short prayer of the learned counsel for the
appellant is that he may be given an opportunity to adduce
proper evidence and substantiate his claim.
3. We are disturbed by the manner in which the case has
been conducted. Only Ext.A1 accident register cum wound
certificate has been produced in this claim under Section 166 of
M.A.C.A No.2759 of 2008 2
the Motor Vehicles Act. The appellant/claimant must know that
in a claim for compensation under Section 166 of the M.V Act,
the foundation of liability is the alleged negligence on the part of
the driver/rider of the vehicle. Consequently the owner is
saddled with vicarious liability and the insurer has the liability to
indemnify the insured. There was total absence of any evidence
adduced on the virtually relevant aspects. In these
circumstances the Tribunal taking note of the circumstance that
nothing was produced to prove negligence which is the
foundation in a claim under Section 166 of the M.V Act
proceeded to pass the impugned award dismissing the claim for
compensation. We find no fault in the award passed by the
Tribunal.
4. Be that as it may, we find merit in the submission of
the learned counsel for the appellant that justice has not been
done by the Tribunal to the claimant whatever be the reason.
The claimant will have to blame himself for not having adduced
proper evidence. The counsel submits that the claimant was not
informed by his counsel about the date of posting and that is the
reason why he could not adduce proper evidence.
M.A.C.A No.2759 of 2008 3
5. Dissatisfied though we are with the manner in which
the case was conducted, we are satisfied that the
appellant/claimant can be granted an opportunity to adduce
further evidence and substantiate his claim. Moved by the plight
of the appellant, we are persuaded to concede a further
opportunity to the appellant/claimant to substantiate his claim.
6. In the result:
a) This Appeal is allowed;
b) The impugned award is set aside;
c) The Tribunal is directed to dispose of the case afresh
after giving the appellant an opportunity to substantiate his
claim;
d) A copy of this judgment shall be given to the counsel
for the appellant. The counsel/appellant shall appear before the
Tribunal on 25.05.2009. The Tribunal shall grant him a further
opportunity to substantiate his claim and shall ensure that his
claim is disposed of as expeditiously thereafter – at any rate,
within a period of two months from 25.05.09;
e) We direct that the appellant/claimant shall not be
entitled for interest from 16.10.07-the date of the impugned
M.A.C.A No.2759 of 2008 4
award, to 25.05.2009-the date appointed for appearance again to
continue the proceedings as the blame for improper disposal
during such period must be attributed entirely to the conduct of
the appellant/his counsel in not adducing proper evidence.
(R.BASANT, JUDGE)
(C.T.RAVIKUMAR, JUDGE)
rtr/-