Kerala High Court
Mrs.Baby vs Radhakrishnan (Deleted) on 9 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
MACA.No.1262 OF 2010(C)
AGAINST THE AWARD IN OPMV 1100/2006 DATED 30-12-2009 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA
APPELLANT/S:
MRS.BABY
PULINCHODE, PULLUR, THRISSUR DISTRICT.
BY ADV. SRI.T.N.MANOJ
RESPONDENT/S:
1 RADHAKRISHNAN (DELETED)
PALLTHERY HOUSE,
MATTATHOOR KUNNU, KODAKARA,
2 GIJI SO.VIJAYAN (DELETED)
ULLATTIPARAMBIL HOUSE
MOONUMURI DESOM, KODAKARA,
(RESPONDENT NOS. 1 AND 2 ARE DELETED FROM THE PARTY
ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED
16.03.2021 IN I.A. NO. 1/2019 IN MACA NO.1262/2010)
3 THE MANAGER ORIENTAL INSURANCE
COMPANY LTD, ROSY TOWERS, IIND FLOOR NO.7,
NUNGABAKKAM, HIGH ROAD, CHENNAI.
R3 BY ADV. SMT.K.S.SANTHI
R3 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA
OTHER PRESENT:
SMT.K.S.SANTHI, SC FOR R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
07-04-2021, ALONG WITH MACA.1261/2010(C), THE COURT ON 09-04-2021
DELIVERED THE FOLLOWING:
MACA Nos.1261 & 1262 OF 2010
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
MACA.No.1261 OF 2010
AGAINST THE AWARD IN OPMV 764/2006 DATED 30-12-2009 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA
APPELLANT/S:
KUTTAMON
HOUSE, KORAYATTIL HOUSE, KORAYATTIL VIA,, KODALAY,
THRISSUR.
BY ADV. SRI.T.N.MANOJ
RESPONDENT/S:
1 RADHAKRISHNAN, PALLTHERY HOUSE (DELETED)
MATTATHOOR KUNNU, KODAKARA.
2 GIJI SO.VIJAYAN (DELETED)
ULLATTIPARAMBIL HOUSE,
MOONUMURI DESOM, KODAKARA,
(RESPONDENT NOS. 1 AND 2 ARE DELETED FROM THE PARTY
ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED
16.03.2021 IN I.A. NO. 1/2019 IN MACA NO.1261/2010)
3 THE MANAGER ORIENTALINSURANCE
COMPANY LTD,, ROSY TOWERS, IIND FLOOR,
NO.7,NUNGABAKKAM, HIGH ROAD, CHENNAI(ADDRESS FOR
SERVICE IS AS, SHOWN ABOVE)
R1 BY ADV. SRI.GEORGE CHERIAN THIRUVALLA
R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)
OTHER PRESENT:
SMT.K.S.SANTHI, SC FOR R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 07-04-2021, ALONG WITH MACA.1262/2010(C), THE COURT ON 09-04-
2021 DELIVERED THE FOLLOWING:
MACA Nos.1261 & 1262 OF 2010
3
P.V.KUNHIKRISHNAN, J.
========================
MACA Nos.1261 & 1262 OF 2010
========================
Dated this the 9th day of April 2021
JUDGMENT
These two appeals are connected and therefore, I am
disposing these two appeals by a common judgment.
MACA No.1261/2010 is filed against the award dated
30/12/2009 in OP (MV) No. 764/2005 on the file of the
Motor Accidents Claims Tribunal, Irijalakuda. MACA
No.1262/2010 is filed against the award dated
30/12/2009 in OP (MV) No. 1100/2006 on the file of the
Motor Accidents Claims Tribunal, Irijalakuda. (Hereinafter
the parties are mentioned in accordance to their rank
before the Tribunal). The above two claim petitions were
disposed by the tribunal along with OP(MV) No.751/2006
and 1079/2006.
MACA Nos.1261 & 1262 OF 2010
2. The short facts are like this:-
The petitioners and the other claimants were
passengers in a bus bearing Registration No. KL-8/S 162
driven by the 2nd respondent. While over taking a lorry,
the bus went off the road and hit on a tree at the side of
the road, resulting in an accident in which the petitioners
and others sustained serious injuries.
3. To substantiate the case, Exts.A1 to A15 were
marked on the side of the petitioner. After going through
the evidence and documents, the Tribunal allowed OP
(MV) No. 764/2006 and OP(MV) No.1100/2006 in part
and granted a compensation of Rs.94,250/- in OP(MV)
No.764/2006 and Rs. 38,550/- in OP(MV) No.
1100/2006. Aggrieved by the quantum of compensation
these two appeals are filed by the petitioners.
4. Heard the learned counsel for the petitioners
and the learned counsel for the 3rd respondent.
5. There is no dispute regarding the policy of the
offending vehicle. The case of the petitioners is that,
MACA Nos.1261 & 1262 OF 2010
they sustained serious injuries including disability. A
specific contention is raised in the appeal memorandum
in MACA No.1261/2010 which is extracted hereunder;
" When the case came up for trial the
learned Tribunal opined that the entire
documents produced by the petitioner can be
marked if not opposed by the respondents
Accordingly the entire documents were allowed
to be marked unopposed. The salary certificate
issued by the employer M/S JCT electronics
Chandigarh was produced along with the list of
documents dated 05/08/2009, with which the
other documents including the certificate of
disability and the discharge summery was
produced. The learned Tribunal did not mark
the salary Certificate and did not place any
reliance on the same while calculating and fixing
the monthly income of the petitioner. The
monthly income of the petitioner was taken @
rupees 2000/- totally ignoring the fact that
there is no contra evidence to rebut this aspect.
The doctor who treated the petitioner has issued
a certificate of disability even though marked in
evidence was not adverted to on the ground
that the same is not proved and no amount of
compensation was awarded for permanent
partial disability."
6. Similar contention was raised in MACA No.
1262/2010.
7. The learned counsel for the petitioners
MACA Nos.1261 & 1262 OF 2010
submitted that, the Tribunal has not considered the
disability certificate produced by the petitioners. The
learned counsel also submitted that, one of the disability
certificate produced along with the claim petition was not
even marked. The learned counsel submitted that, this
Court may kindly accept the disability certificate and fix a
just compensation. The learned counsel also submitted
that, in MACA No. 1262/2010 the petitioner produced
Ext. A5 salary certificate. The tribunal has not considered
the same also while fixing the compensation for loss of
earning.
8. It is an admitted fact that, no oral evidence is
adduced in this case. It is also an admitted fact that,
even though the disability certificate is produced, the
same is not marked in a manner known to law. The
learned counsel for the petitioner submitted that, this
Court may kindly rely those documents and pass a just
compensation. The tribunal rejected those disability
certificates mainly for the reason that, the same is not
MACA Nos.1261 & 1262 OF 2010
proved. This Court can not find fault with the tribunal.
Then the learned counsel for the petitioner submitted
that, an opportunity may be given to adduce further
evidence to prove the disability certificate and for
enhancement of compensation. The learned counsel also
submitted that, the parties may be allowed to adduce
evidence to prove the salary of the appellant in MACA No.
1261/2010. I think in the facts and circumstances of the
case an opportunity can be given to the petitioners to
adduce further evidence. The duty of the tribunal and this
Court is to give just a compensation to the
injured/deceased. When there is a submission from the
part of the petitioners that, sufficient opportunity is not
given to prove their case, it is the duty of this Court to
give a further opportunity to adduce further evidence.
Therefore, these two appeals are allowed in the
following manner;
1. The impugned award dated
30.12.2009 in O.P.(MV) Nos.1100 and 764 of
MACA Nos.1261 & 1262 OF 2010
2006 on the file of the Motor Accidents Claims
Tribunal, Irinjalakuda is set aside. The Tribunal
will restore O.P.(MV) Nos.1100 and 764 of
2006.
2. The tribunal will allow both parties to
adduce further evidence if any (oral or
documentary).
3. After giving opportunity to adduce
further evidence, the tribunal will dispose of
the claim petitions as expeditiously as possible,
at any rate, within a period of four months
from the date of receipt of a copy of this
judgment.
4. The parties will appear before the
tribunal on 17.05.2021.
(Sd/-)
P.V.KUNHIKRISHNAN
JUDGE
LU
