IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 103 of 2005()
1. XAVIER, S/O. VARGHESE,
... Petitioner
Vs
1. V.A.BENNY, S/O. VARKEY ALIAS,
... Respondent
2. P.V.JOSE, S/O. VARKEY,
3. UNITED INDIA INSURANCE COMPANY LTD.,
For Petitioner :SRI.P.V.ELIAS
For Respondent :SRI.R.S.KALKURA
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :15/07/2009
O R D E R
C .N. RAMACHANDRAN NAIR &
C. K. ABDUL REHIM, JJ.
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M.A.C.A. No. 103 OF 2005
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Dated this the 15th day of July, 2009
JUDGMENT
Ramachandran Nair, J.
Appellant is the claimant before the Tribunal. The Claim Petition
was filed with allegation that on 10.9.1998 at about 3.30 P.M. while he
was travelling on the platform of a mini lorry, he sustained injuries
when an iron sheet kept on the platform of the vehicle hit against his
left leg, due to sudden braking of the vehicle. The appellant sustained
fracture on both bones of the left leg. The third respondent-insurance
company disputed the claim contending that no accident as alleged in
the Claim Petition took place and the allegation that the claimant
sustained injuries in the motor vehicle accident was false. Before the
Tribunal the claimant was examined as PW1 and Exts. A1 to A22
documents were produced on behalf of him. The Tribunal found that in
Ext.A5 certificate issued by the hospital wherein the appellant was
treated at first revealed that the cause of injury noted therein is fall of
an iron bar on the leg of the claimant. The said document is produced
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by the claimant and the same is proved in evidence on behalf of him,
but there is no explanation forth-coming in evidence with respect to the
discrepancy of the medical record against the version put forth in the
Claim Petition. The claimant deposed before the Tribunal that after the
accident he was taken to the hospital in the same vehicle, but, at the
same time it is deposed that he became unconscious immediately on
sustaining injury to his leg. Even though it is claimed that there was a
co-worker travelling along with the claimant on the platform of the
lorry, such a person was not examined as a witness. The doctor who
has issued Ext.A5 certificate was also not examined. The entire
contention of the appellant is based on the FIR and final report in a
case registered by the police. The Tribunal found that the case was
registered after a period of more than a month of the alleged date of
incident, that too, based on the complaint submitted by the mother of
the claimant. On evaluating the entire facts and evidence on record,
the Tribunal found that in all probability the claimant had sustained
injury when the iron bar fell on his leg, which is the history given to the
doctor, at the time of admitting the claimant. We do not find any
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reason to interfere with the above said finding of the learned Tribunal
rendered after considering the entire documentary and oral evidence
adduced. Hence the appeal deserves no merit and the same is
accordingly dismissed.
It is made clear that dismissal of this appeal will not prejudice the
right of the appellant if any available under the provisions of the
Workmen’s Compensation Act, to proceed against his employer.
(C.N.RAMACHANDRAN NAIR)
Judge.
(C. K. ABDUL REHIM)
Judge.
kk
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