Kerala High Court
Manoj Kumar vs Sunil Kumar on 23 March, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
THURSDAY, THE 14TH DAY OF SEPTEMBER 2017/23RD BHADRA, 1939
MACA.No. 1896 of 2013 (A)
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AGAINST THE AWARD IN OP(MV)907/2009 of MACT PALA DATED 23-03-2013
APPELLANT/PETITIONER:
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MANOJ KUMAR,
S/O.DAMODARAN NAIR, KOTTARATHIL HOUSE, PANACHEPPARAKARA,
POONJAR THEKKEKARA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.
BY ADV. SRI.ABRAHAM MATHEW (VETTOOR)
RESPONDENTS: RESPONDENTS :
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1. SUNIL KUMAR,
S/O.RAVINDRAN NAIR,
KARAMAYIL HOUSE, PRAVITHANAM KARA,
BHARANANGANAM VILLAGE, KOTTAYAM DISTRICT, PIN-686578.
2. REMA MOHAN,
KOTTARATHIL HOUSE, POONJAR P.O., KOTTAYAM DISTRICT,
PIN-686581.
3. THE ORIENTAL INSURANCE COMPANY LTD.,
REPRESENTED BY ITS DIVISIONAL MANAGER, KOTTAYAM,
PIN-686001.
R3 BY SRI.GEORGE CHERIAN (THIRUVALLA)
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
14-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.D.RAJAN, J.
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M.A.C.A.No.1896 of 2013
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Dated this the 14th day of September, 2017
JUDGMENT
This appeal is preferred against the award in O.P.(MV) No.907/2009 of the Motor Accidents Claims Tribunal, Pala. Appellant sustained injuries in a motor accident on 12.7.2009 at 10.30 p.m. near Panachippara. Immediately he was removed to hospital. Respondents 1 and 2 did not contest the claim but the insurance company-the 3rd respondent disputed the accident and contended that the petitioner himself was riding motor cycle. To substantiate claim appellant was examined as PW.1 and the documents were marked as Exts.A1 to A15. Respondent was examined as RW.1. Learned Tribunal dismissed the application. Being aggrieved by that the injured preferred this appeal.
2. The learned counsel appearing for the appellant contended that the finding of the court below that the appellant was riding the motor cycle at the time of accident is unsustainable in law. Ext.A1 is the copy of the FIR registered by Erattupetta police. Ext.A2 is the copy of the scene M.A.C.A.No.1896 of 2013 ..2..
mahazar. Ext.A3 is the wound certificate. Ext.A4 is the AMVI report and Ext.A5 is the copy of the final report. As per Ext.A5 the 1st respondent was riding the motor cycle. But the oral evidence of PW.1 shows that the accident occurred due to the negligence of the 1st respondent. The insurance company took a contention that the appellant himself was riding the motor cycle in a rash and negligent manner and examined RW.1 the Doctor who issued Ext.A3 wound certificate. A perusal of Ext.A3 shows that the appellant sustained fracture of left clavicle. The accident occurred while riding the bike fell into a gutter.
3. It is true that the victim in a motor accident is entitled to get just compensation. In this case the appellant failed to prove rash and negligent driving of the 1st respondent. Accordingly the learned Tribunal dismissed the claim petition. Considering the submission made by the learned counsel the injured is entitled to other opportunity to prove the accident. Even though the final report has been produced in the Tribunal M.A.C.A.No.1896 of 2013 ..3..
the rash and negligent driving of the 1st respondent has to be proved in the Tribunal hence the appellant is directed to adduce oral evidence to prove the accident. Hence the order of the dismissal is set aside. The matter is remitted to the Motor Accidents Claims Tribunal, Pala for fresh consideration as per law.
The appellant is directed to appear before the Tribunal on 30.10.2017.
Sd/-
P.D.RAJAN, JUDGE skj True copy P.A. to Judge