Allowed

John v. Sajir Razak

Kerala HC12 Sept 2013MACA/549/2013

Case brief

AI extract

What is this about?

The High Court allowed the appeal against the Motor Accident Claims Tribunal's dismissal of a building damage claim. The award was set aside and remitted for a fresh decision on damages and policy violation issues, though the finding on the cause of accident was left undisturbed.

What did the court decide?

The award dismissing the claim petition is set aside and the matter is remitted to the Tribunal for a fresh decision on all issues except the cause of accident.

John Vs Sajir Razak — Insurance | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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THURSDAY, THE 12TH DAY OF SEPTEMBER 2013/21ST BHADRA, 1935

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MACA.No. 549 of 2013 () ------------------------

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AWARD IN OPMV 581/2008 of MACT MUVATTUPUZHA DATED 05-01-2013

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APPELLANT/PETITIONER: ---------------------

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JOHN AGED 78 YEARS S/O.THOMMAN, RESIDING AT MONIPPILLIL (H), ANIKADU KARA MUVATTUPUZHA VILLAGE, MUVATTUPUZHA. PIN-683 570.

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BY ADV. SRI.PRAMOD KOCHUTHOMMEN.E.

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RESPONDENTS/RESPONDENTS:

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1. SAJIR RAZAK M/S.ABDUL RAZAK & CO., INDIAN OIL DEALER KUNJINAPPALLY, NOW RESIDING AT NADACKAL HOUSE VENGALLOOR POST, THODUPUZHA, PIN-685 608.

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2. MUJEEB.T.H. S/O.SUBAIDA, THAZHATHETHIL HOUSE, KEERIKODE THODUPUZHA, PIN-685 606.

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3. THE ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE, P.B.NO.124, CHEERANVELIL BUILDING NH-220 (KK ROAD), KANJIRAPPALLY, PIN-686 507.

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R BY SRI.GEORGE CHERIAN (THIRUVALLA)

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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=========================

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M.A.C.A.No.549 of 2013

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============================ Dated this the 12^th day of September, 2013

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J U D G M E N T

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Respondent 1 and 2 are served but, there is no response.

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Third respondent appears through counsel.

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This appeal arises from the award dated 05.01.2013 in O.P(M.V).No.581 of 2008 of the Motor Accident Claims Tribunal, Muvattupuzha (for short, “the Tribunal”).

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In a motor accident on 07.08.2007 involving the offending vehicle driven by the second respondent and belonging to the first respondent, the building belonging to the appellant suffered damage. Appellant claimed damages.

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Respondents 1 and 2 remained ex parte in the Tribunal.

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The third respondent contended that claim for damages

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is not sustainable and that terms and conditions of the policy are violated. The third respondent took some steps to prove alleged violation of policy condition.

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The Tribunal found that the accident occurred due to the negligence of the second respondent but observing that Ext.A9, survey report is not proved by examining the Surveyor and that even if proved Ext.A9 cannot be accepted, dismissed the claim petition.

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M.A.C.A.No.549 of 2013

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Learned counsel submits that the Surveyor was dead at the time the matter was enquired into by the Tribunal. It is also argued that details of damages assessed are given in Ext.A9. At any rate, Ext.A2, mahazar for scene of occurrence revealed damage caused to the building. In the circumstance, the Tribunal was not correct in dismissing the application.

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Learned counsel for the third respondent while supporting the award contended that the Tribunal has not gone into the plea of the third respondent regarding violation of policy conditions.

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Having heard the learned counsel on both sides, I am constrained to interfere with the award. Assuming that there was no survey report, still, the Tribunal ought to have considered whether damages could be awarded based on the damage to the building as noted in Ext.A2, copy of scene mahazar.

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In case the Surveyor who prepared Ext.A9 was not available for any reason, it was open to the appellant to examine some other person able to identify signature of the Surveyor in Ext.A9 and prove the same. In the circumstance, I am inclined to remit the case to the Tribunal for fresh decision.

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The Tribunal shall also consider contentions raised by the third respondent regarding alleged violation of policy

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M.A.C.A.No.549 of 2013

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condition.

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Resultantly, this appeal is allowed as under:

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(i) While no interference is required with the finding of the Tribunal regarding cause of the accident, award dated 05.01.2013 of the Motor Accident Claims Tribunal, Muvattupuzha dismissing O.P(M.V).No.581 of 2008 is set aside.

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(ii) O.P(M.V).No.581 of 2008 is remitted to the Tribunal for fresh decision on all the issues involved in the claim petition except the finding regarding cause of accident which is already found by the Tribunal and not interfered by this Court.

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(iii) Appellant and the third respondent shall appear in the Tribunal on 10.10.2013.

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Sd/- THOMAS P.JOSEPH, JUDGE

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Sbna

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True Copy

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P A to Judge

John v. Sajir Razak

Case brief

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What did the court decide?

John v. Sajir Razak

Case brief

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What did the court decide?

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