IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 677 of 2004()
1. PAUL OOKEN S/O. OUSEPH,
... Petitioner
Vs
1. P.P.DAVIS, PUTHUKANDAN HOUSE,
... Respondent
2. TONY S/O. JOSE PAYYAPPILLY HOUSE,
3. M/S. NATIONAL INSURANCE CO.LTD.,
For Petitioner :SRI.JOSE THETTAYIL
For Respondent :SRI.LAL GEORGE
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :07/06/2010
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A. No. 677 of 2004
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Dated this the 7th day of June, 2010
JUDGMENT
Basheer, J.
The appellant, who allegedly sustained some injuries
in a motor accident, filed a claim petition before the Motor
Accidents Claims Tribunal, Thrissur under section 166 of
the Motor Vehicles Act. The Tribunal, after noticing the
injuries sustained by the appellant, made an assessment of
the quantum of compensation for the loss caused to him.
However, the claim petition was dismissed by the Tribunal,
holding that the appellant had failed to prove that he
suffered injuries in a motor accident, as alleged. The said
award is under challenge in this appeal.
2. The case of the appellant before the Tribunal was
that he was knocked down by a bus while he was riding his
scooter on the Mannuthy Bye-pass road at about 4 p.m. on
November 30, 1997. According to the appellant, the bus,
which belonged to respondent No.1, was being driven by
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respondent No.2 in a rash and negligent manner and at an
excessive speed. The Tribunal, after considering the oral
testimony of PWs.1 to 3 and the documents produced by the
appellant as Exts.A1 to A9, came to the conclusion that
there was no satisfactory or convincing evidence to accept
the case of the appellant.
3. The Tribunal noticed that Ext.A1 FIR was
registered by the police only on December 9, 2007, though
the alleged accident occurred on November 30, 1997.
Though one Benni had taken the appellant to the hospital,
as revealed form Ext.A4 wound certificate, he was not
examined. It was also found by the Tribunal that the wound
certificate clearly indicated that there was strong smell of
alcohol at the time when the appellant was examined by the
doctor. The appellant, when he was examined as PW1 in the
Tribunal, admitted that he had consumed some wine. In the
above circumstances, the Tribunal took the view that the
case of the appellant, as regards the alleged involvement of
the bus could not be accepted. Further the police did not
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find any damage of the bus, when it was examined later.
4. However, learned counsel for the appellant points
out that the delay in lodging the F.I.R. occurred only
because the appellant was unconscious at the time when he
was removed to the hospital. The police came to the
hospital only on December 9, 1997 and it was at that time
PW2, the wife of the appellant, gave the First Information
Statement. Being a rustic woman, she was not aware of the
legal implications. It is further contended by the learned
counsel that the Tribunal apparently got carried away by
the fact that there was smell of alcohol at the time when the
appellant was admitted in the hospital.
5. Heavy reliance is placed by the learned counsel on
the fact that respondents 1 and 2 did not choose to contest
the case. He submits that if the case of the Insurance
Company is to be believed, the driver of the bus ought to
have come before the court and denied the accident.
Moreover, the police had admittedly registered a crime
against the driver of the bus and he was prosecuted, as
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revealed from Ext.A5 final report.
6. We have perused the lower court records, which
were called for by us. We have heard learned counsel for
the Insurance Company also.
7. Having regard to the entire facts and
circumstances of the case, we are of the view that the
appellant has to be given an opportunity, of course on
appropriate terms, to adduce further evidence to
substantiate his contention that he suffered injuries in a
road traffic accident ,as alleged. The Tribunal shall afford
such an opportunity to the appellant and the respondents, if
they so desire. However, we make it clear that the quantum
assessed by the Tribunal shall not be disturbed, especially
in the absence of any challenge to the same. Learned
counsel for the appellant has not advanced any argument
before us against the quantum of compensation fixed by
the Tribunal.
8. Therefore, the award is set aside to the extent it
holds that the appellant had not been involved in a road
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traffic accident on condition that the appellant pays a sum
of Rs.5,000/- as cost to the Insurance Company. The
Tribunal shall reconsider the said issue and pass an award
afresh. The cost shall be deposited by the appellant before
the Tribunal within one month from today. On such deposit
being made, the Tribunal shall release the same to the
Insurance Company.
9. The Tribunal shall dispose of the case as
expeditiously as possible, at any rate within three months
from the date of receipt of a copy of this judgment.
The Registry shall send back the Lower Court records
forthwith.
The parties shall appear before the Tribunal on July 9,
2010.
A.K.BASHEER, JUDGE.
P.Q.BARKATH ALI, JUDGE.
mn.