K.Prakash vs K.Mohanan
2021 Latest Caselaw 8603 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

        TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942

                           MACA.No.569 OF 2012(B)

   AGAINST THE AWARD IN OPMV 1531/2002 DATED 30-12-2011 OF ADDITIONAL
    DISTRICT COURT-II & MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA

APPELLANT/S:

                K.PRAKASH
                S/O.KRISHNAN KRISHNA SREE CHATHIYARA THAMARAKKULAM (PO0
                ALAPPUZHA DISTRICT

                BY ADVS.
                SRI.M.V.THAMBAN
                SRI.B.BIPIN
                SRI.R.REJI
                SMT.THARA THAMBAN

RESPONDENT/S:

       1        K.MOHANAN
                S/O.KRISHNAN PRENAVAM VEEDU CHATHIYARA THAMARAKKULAM (PO)
                ALAPPUZHA DISTRICT PIN 688 001

       2        M.SANKARANKUTTY
                S/O.MADHAVA PANICKER ALUVILAYIL CHATHIYARA THAMARAKKULAM
                (PO) ALAPPUZHA DISTRICT PIN 690 530

       3        THE NEW INDIA ASSURANCE CO.LTD
                REPRESENTED BY ITS BRANCH MANAGER BRANCH OFFICE KAYAMKULAM
                (PO) ALAPPUZHA DISTRICT 690 502

                R1, R3 BY ADV. SRI.VPK.PANICKER

      THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15-
03-2021, THE COURT ON 16-03-2021 DELIVERED THE FOLLOWING:
 MACA.No.569 OF 2012(B)                     2




                              P.V.KUNHIKRISHNAN, J
                      -----------------------------------------------
                             M.A.C.A. No.569 of 2012
                           --------------------------------------
                     Dated this the 16th day of March, 2021


                                      JUDGMENT

The appellant is the petitioner in O.P.(M.V.) No. 1531/2002 on

the file of the Motor Accidents Claims Tribunal, Mavelikkara. It is a

claim petition filed under Sec.166 of the Motor Vehicles Act

(hereinafter parties are mentioned in accordance to their rank before

the Tribunal).

2. The short facts are like this :

On 19.12.2002, the petitioner, who was the pillion rider in a

motor cycle bearing registration No.KL-4H 2515, while travelling

through Chirackal-Pathiyara road, met with an accident. It is alleged

that the 1st respondent, the motor cycle rider, driven the motor cycle

in a rash and negligent manner and thereby, the petitioner fell down

and sustained injuries. The petitioner claimed an amount of

Rs.2,00,000/- as compensation from respondent Nos.1 to 3, who are

the owner, driver and insurer.

3. The 3rd respondent-Insurance Company filed a detailed

written statement. According to the 3rd respondent, the claim petition

is filed with false allegations. According to the 3 rd respondent,

petitioner is a tortfeasor, and he is not entitled for any compensation.

The Insurance Company also contended that the petitioner influenced

the Police and managed to frame a false case by implicating the 1 st

respondent as its driver. The Insurance Company contended that in

the wound certificate, the history and alleged cause of accident is

treated as "fall from a motor cycle while riding at 7.50 am on

19.10.2001 at Chathiyara". Therefore, the 3 rd respondent-Insurance

Company submitted that the claim petition may be dismissed.

4. To substantiate the case, claimant examined himself as

PW1 and Exts.A1 to A13 were marked. No evidence was adduced by

respondents. After going through the evidence and the documents,

the Tribunal found that the petitioner himself had driven the motor

cycle in a rash and negligent manner and he sustained injuries and

therefore, 1st respondent has no role in the accident. Accordingly, the

claim petition was dismissed. Aggrieved by the same, this appeal is

filed by the petitioner.

5. Heard counsel for the petitioner and the counsel for the 3 rd

respondent.

6. The counsel for the petitioner submitted that the Police

after investigating the case, submitted a final report as evident by

Ext.A2. The counsel relied the judgment of this Court in New India

Assurance Company Ltd.v. Pazhaniammal [2011 (3) KLT 648] and

submitted that there is prima facie negligence on the part of the 1 st

respondent. The counsel submitted that absolutely no evidence is

adduced by the respondents to rebut the prima facie negligence made

out against the 1st respondent. The counsel submitted that the

Tribunal erred in dismissing the claim petition. According to the

counsel, the petitioner sustained very serious injuries. The counsel

also submitted that the Tribunal erred in relying the first version to

the doctor, when there is oral evidence adduced by PW1. The counsel

submitted that the first version to the doctor is not evidence and

moreover, the doctor is also not examined in this case to prove the

same. When there is oral evidence of PW1, the Tribunal erred in

relying the alleged first version in the wound certificate. The counsel

submitted that even if that version to the doctor is accepted, there is

nothing to disbelieve the case of the petitioner.

7. Admittedly, there is only the oral evidence of the claimant.

It is true that no evidence is adduced by the respondents. Ext.A1 is

the copy of the FIR. Ext.A2 is the final report submitted by the Police.

Based on these documents, the Tribunal found that the case of the

petitioner is not believable. The Tribunal mainly relied the first

version to the doctor, which is recorded in Ext.A6 wound certificate. I

perused Ext.A6 wound certificate. As per Ext.A6, it is stated that one

Mohanan brought the injured to the Hospital. According to the

petitioner, the above-mentioned Mohanan is the younger brother of

the petitioner. The counsel for the petitioner submitted that the first

version to the doctor is not properly recorded by the doctor

concerned. If that is the case, if the above-mentioned Mohanan or the

doctor, who prepared the wound certificate can be examined and the

matter can be decided afresh. I think, in the facts and circumstances

of this case, a further opportunity can be given to both sides to

adduce further evidence and there can be a direction to the Tribunal

to decide the matter afresh, in accordance to the law. I make it clear

that I have not gone through the merit of the case in detail. Let the

Tribunal decide the matter afresh untrammeled by any observation in

this judgment.

Therefore, this appeal is allowed.

1) The impugned order dated 30.12.2011 in O.P.(M.V.) No.1531/2002 on the file of the Motor Accidents Claims Tribunal, Mavelikara is set aside.

2) The Motor Accidents Claims Tribunal, Mavelikara is directed to restore O.P.(M.V.) No.1531/2002 into file.

3) The Tribunal will allow the petitioner and the respondents to adduce further oral or documentary evidence, if any. I make it clear that no denova trial is necessary.

4) The Tribunal will dispose the claim petition as expeditiously as possible, at any rate, within 4 months from the date of receipt of a copy of this judgment.

5) The parties will appear before the Tribunal on 5.4.2021.

sd/-

P.V.KUNHIKRISHNAN JUDGE SKS