High Court Kerala High Court

P.M.Paulose vs Anish Chandran on 1 December, 2010

Kerala High Court
P.M.Paulose vs Anish Chandran on 1 December, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 1720 of 2005()


1. P.M.PAULOSE, S/O.MATHEW ULAHANNAN,
                      ...  Petitioner

                        Vs



1. ANISH CHANDRAN, S/O.CHANDRAN,
                       ...       Respondent

2. MOHANAN, S/O.PARAMESWARAN,

3. ORIENTAL INSURANCE COMPANY LTD.,

                For Petitioner  :SRI.P.M.JOSHI

                For Respondent  :SRI.GEORGE CHERIAN (THIRUVALLA)

The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI

 Dated :01/12/2010

 O R D E R

A.K. Basheer & P.Q. Barkath Ali, JJ.

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M.A.C.A.No. 1720 of 2005-D

– – – – – – – – – – – – – – – – – – – – – – – – – – – – –

Dated this the 1st day of of December, 2010
Judgment
Basheer, J:

Appellant is the claimant before the Motor Accidents

Claims Tribunal. He filed the petition seeking

compensation under Section 166 of the Motor Vehicles Act

alleging that he sustained serious injuries like supra

condylar fracture and inter comminuted fracture of femur

(L), apart from cervical spine injury in a road traffic

accident that occurred on February 2, 2000 at

Kinginimattom. According to the appellant he was riding

on his scooter when another two wheeler owned by

respondent No.1 and driven by respondent No.2 dashed

against it. Appellant contended that the accident occurred

solely due to the rash and negligent driving of respondent

No.2. He claimed a total sum of Rs.12 lakhs towards

compensation from the respondents.

2. The Tribunal after considering the materials

available on record which consisted of the oral testimony of

Pws.1 to 5 and Exts.A1 to A16 produced by the appellant,

came to the conclusion that there is no satisfactory evidence

to show that the accident had occurred because of the rash

MACA.1720/05. : 2 :

and negligent driving by respondent No.2. Resultantly

the Claim Petition was dismissed. Hence this appeal.

3. It is on record that the appellant was proceeding

from west to east on his scooter while the alleged offending

vehicle was coming from east to west. The tarred road at the

point of accident had a width of 4 meters. The two Police

personnel gave evidence in support of the version given by

the appellant as regards the occurrence. It also came on

record that the Police had charge sheeted respondent No.2

for the offences under Section 279 and 338 IPC after due

investigation. The Tribunal after considering the oral and

documentary evidence was however not impressed with the

evidence adduced by the appellant.

4. We have carefully perused the materials available

on record. In our view, the Tribunal was not justified in

holding that the appellant had not established his case. It

may at once be noticed that there was no contra evidence

from the side of the respondents. Significantly, respondents

1 and 2 did not choose to appear before the Tribunal and

therefore they were set ex parte. More importantly, the

Police officials who had prepared the scene mahazar and

conducted the investigation categorically stated about the

process of investigation and also the fact that respondent

MACA.1720/05. : 3 :

No.2 was charge sheeted on the basis of the investigation.

But still the Tribunal did not seem to have been impressed

with the uncontroverted evidence adduced by the appellant.

5. Having perused the reasoning of the learned

Judge in the award, we are not at all satisfied with the

manner in which the learned Judge has dealt with the issue.

As has been mentioned already, the oral and documentary

evidence adduced by the appellant did clinchingly show

that the accident occurred because of the rash and negligent

driving of the two wheeler by respondent No.2. In that

view of the matter, the finding entered by the Tribunal on

issue No.1 in the award is liable to be set aside. We do so.

6. As has been mentioned already, the appellant

had claimed a total sum of Rs.12 lakhs towards

compensation. The specific case of the appellant is that he

had undergone treatment for more than 1= years in

connection with the injuries sustained by him. He had

produced the medical records before the Tribunal but the

Tribunal did not consider any of those documents. It is also

seen from the records that the Medical Board had certified

that appellant suffered 34% permanent disability.

7. We do not propose to refer to or deal with the

above aspect any further at this stage. In our view, the

MACA.1720/05. : 4 :

Tribunal has to consider the case of the appellant as regards

the quantum of compensation that he might be entitled to

get.

8. In that view of the matter, the case is remanded

to the Tribunal which shall quantify the amount of

compensation, if any, payable by the respondents. The

Tribunal shall afford opportunity to the parties to adduce

further evidence, if they so choose. The Tribunal shall

dispose of the case as expeditiously as possible, at any rate

within two months from the date of receipt of a copy of this

judgment.

9. Parties shall appear before the Tribunal on

December 20, 2010.

Appeal is disposed of in the above terms.

A.K. Basheer
Judge.

P.Q. Barkath Ali
Judge.

an.