IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
FRIDAY, THE 20TH DAY OF MAY 2022 / 30TH VAISAKHA, 1944
RFA NO. 309 OF 2016
AGAINST THE JUDGMENT AND DECREE DATED 18.08.2015 IN OS
304/2010 OF SUB COURT,KOTTARAKKARA.
APPELLANT/PLAINTIFF :
KUNJURAMAN PILLAI,
S/O. BALAKRISHNA PILLAI, AGED 57 YEARS,
GOKULAM VEEDU, KAREEPRA VILLAGE,
KUZHIMATHIKADU P.O., KOTTARAKKARA, KOLLAM.
BY ADVS.
SRI.V.JAYAPRADEEP
SRI.V.JAYADHAR
RESPONDENTS/DEFENDANTS :
1 M/S.BHARATH SANCHAR NIGAM LTD.,
DISTRICT OFFICE, NEAR ARCHANA - ARADHANA THEATRE,
KOLLAM, REPRESENTED BY ITS GENERAL MANAGER (TD)
2 MOHANACHANDRAN @ MOHANAN PILLAI,
S/O. SREEDHARAN PILLAI, AGED 53 YEARS,
LINE MAN/TELEPHONE MECHANIC, TELEPHONE EXCHANGE,
BSNL OFFICE, NEDUMONCAVU, NEDUMONCAVU P.O.,
KOTTARAKKARA, KOLLAM DISTRICT, RESIDING AT
ASWATHY BHAVAN, MUNNAMMOODU, VAKKANADU WARD,
KAREEPRA VILLAGE, KOTTARAKKARA, KOLLAM DISTRICT.
BY ADV SRI.MATHEWS K.PHILIP,SC, BSNL
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
RFA No.309 of 2016 2
P.SOMARAJAN, J.
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RFA No.309 of 2016
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Dated this the 20th day of May, 2022.
JUDGMENT
The victim, who suffered an injury in connection with an alleged incident covered by Ext.A3 F.I.R, Ext.A4 final report, Ext.A5 scene mahazar, Ext.A6 vehicle mahazar and Ext.A7 wound certificate, came up in appeal aggrieved by the dismissal of the application on the sole ground that he has not given direct evidence by mounting on the box overlooking the fact that the police have registered a crime against the employee of the respondents. The wound certificate and other relevant records were produced. The person who witnessed the incident was also examined. It seems to be so unfortunate that the claim petition was dismissed though the victim suffered very serious injuries affecting his memory power. It is submitted by the learned counsel for the appellant that he has suffered very serious injuries and is not able to move from one place to another. RFA No.309 of 2016 3 But the learned Sub Judge entered into a finding that the abovesaid victim had given oral evidence in the criminal case as PW2 and the certified copy of the same was obtained and produced as Ext.B4. The fact that the victim had not given direct evidence alone is not sufficient to reject the suit or to enter into an adverse finding regarding the negligence contributed. It is not safe to insist direct evidence from the injured regarding the real cause of the accident, when it is otherwise proved by direct evidence of witnesses and other relevant records. The reason advanced by the trial court for dismissing the application cannot be sustained and hence set aside. The matter is remanded back to the trial court for fresh disposal in accordance with the law in force by affording ample opportunity to the appellant and the respondents to prove their respective cases by oral and documentary evidence, for which, the parties shall appear before the trial court on 02-06-2022.
There will be a further direction to dispose of the matter within a time schedule of three months from the RFA No.309 of 2016 4 date of appearance of the parties and report compliance.
The appeal is allowed in part accordingly. No costs. The appellant is exempted from paying the court fee since the remand is not on the fault of the appellant as per Section 67 of the Kerala Court Fees and Suits Valuation Act, 1959. So there is no necessity to recover the court fee payable under Order XXXIII Rule 14 C.P.C.
Sd/-
P. SOMARAJAN, JUDGE amk RFA No.309 of 2016 5 APPENDIX APPELLANT'S ANNEXURES :
ANNEXURE A1 : COPY OF THE I.A NO.775 OF 2015 . ANNEXURE A2 : CERTIFIED COPY OF THE ORDER IN I.A NO.775 OF 2015 DATED 4-6-2015.
ANNEXURE A3 : CERTIFIED COPY OF THE ORDER DATED 18-8-2015 IN I.A NO.1110 OF 2015.
ANNEXURE A4 : CERTIFIED COPY OF THE ORDER DATED 18-8-2015 IN I.A NO.1021 OF 2015.
RESPONDENTS'S ANNEXURES : NIL.