Thulasi M.R vs Thampy
2023 Latest Caselaw 1984 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
       THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
 FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
                   MACA NO. 1814 OF 2010
 AGAINST THE JUDGMENT OP(MV) 45/2002 OF DISTRICT COURT &
   SESIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL ,KALPETTA
APPELLANT/PETITIONER:

          THULASI M.R.
          W/O.VELAYUDHAN,MECHERIYIL HOUSE,, DEVARSHOLA
          POST, NILGIRIS DISTRICT.
          BY ADV SMT.CELINE JOSEPH


RESPONDENTS/RESPONDENTS:

   1     THAMPY @ SEBASTIAN,
         S/O.CHERIAN,
         ELAMBASSERY HOUSE, VAYALA POST, KOTTAYAM.
   2     JOSE V.THANIKODE
         S/O.VARGHESE
         THANNIKODE HOUSE, NOOLPUZHA POST,
         S.BATHERY TALUK.
   3     THE BRANCH MANAGER
         NATIONAL INSURANCE CO.LTD., KALPETTA.
   4     K.T.THOMAS SO.K.M.THOMAS
         KUDILIL HOUSE, ARATTUTHIRA,, PUTHUPPALLY POST,
         KOTTAYAM DISTRICT. *DELETED* * THE FOURTH
         RESPONDENT IS DELETED FROM THE PARTY ARRAY AT
         THE RISK OF THE APPELLANT AS PER ORDER DATED
         25/03/2022 IN IA 1/2022 IN MACA 1814/2010*
   5     A.C.JOSE
         S/O.JOSEPH
         PALANIKUMTHADATHIL HOUSE, KADAPLAMATTOM POST,
         KOTTAYAM DISTRICT.
   6     THE BRANCH MANAGER
         ORIENTAL INSURANCE CO.LTD.,
         PALLUTHURUTHI, COCHIN POST.
         BY ADVS.
 MACA.No.1814/2010
                               ..2..

         SRI.P.G.GANAPPAN
         SMT.M.R.JAYALATHA


     THIS   MOTOR   ACCIDENT     CLAIMS   APPEAL   HAVING   BEEN
FINALLY HEARD ON 03.02.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
 MACA.No.1814/2010
                                 ..3..




                           JUDGMENT

This is a case where appellant has adduced no reliable

and germane evidence; but still claims that the Tribunal erred

in having dismissed the Original Petition, seeking

compensation.

2. The appellant says that she was travelling in a bus,

bearing Registration No.KL 12/4222, from Calicut to Sulthan

Bathery, when it collided with a lorry, thus causing her injuries.

She asserts that, she had to undergo treatment and therefore,

filed the Original Petition for compensation, but which has now

been dismissed.

3. Smt.Celine Joseph - learned counsel for the

appellant, pointed out that, Ext.A1 - wound certificate would

luculently show that her client suffered injury while travelling in

the bus in question; and that, she could have proved the

accident, had she been given an opportunity of calling for the

records in OP(MV) No.486/2001, which has been filed by

another passenger in the same bus. She, however, conceded

that her client was unable to do so; but argued that this should

not have been used as an opportunity by the Tribunal to

dismiss the Original Petition.

MACA.No.1814/2010 ..4..

4. Sri.P.G.Ganappan - learned Standing Counsel for the

Insurance Company, on the other hand, submitted that the

appellant had sufficient opportunity to prove her case, but that

she did not do so. He pointed out that, going by Ext.A1 -

wound certificate, nothing is proved, except that she had

sustained some injury.

5. I must say that there is great force in the afore

submissions of Sri.P.G.Ganappan, because the only evidence

on record is Ext.A1; while the claimant, deposed as PW1, to the

effect that she was travelling in the bus in question and

sustained injury in the alleged accident. Apart from this, no

document has been produced to show that she was travelling

in the bus, or that she sustained injuries in the accident,

particularly, because she had failed to report the matter to the

Police, thereby frustrating any investigation. The Tribunal,

therefore, has acted correctly and I cannot find fault with it.

6. That said, however, I am of the view that a limited

latitude can be shown to the appellant in allowing her to lead

additional evidence, either by calling for the papers in

OP(MV)No.486/2001, or in such other manner; and I record that

this has not been opposed by Sri.P.V.Ganappan - learned

Standing Counsel for the appellant, who, however, prayed that MACA.No.1814/2010 ..5..

sufficient opportunity be reserved for his client also in such

event.

In the afore circumstances and solely for the reasons

above, I allow this appeal and set aside the order of the

Tribunal; thus remanding the matter for a fresh consideration,

after giving necessary opportunities of leading additional

evidence to both sides.

The Tribunal will endeavour to dispose of the matter as

expeditiously as is possible, but not later than eight months

from the date of receipt of a copy of this judgment.

The parties will appear before the Tribunal at 11 am on

01.03.2023.

The Registry will send back the case records to the

Tribunal without any delay.

Sd/-

DEVAN RAMACHANDRAN, JUDGE

ACR