Remanded

Aneesh @ Unni v. Anilkumar

Kerala HC14 Feb 2017MACA/2344/2015

Case brief

AI extract

What is this about?

Appellant appealed against low compensation awarded for injuries sustained in a motor accident. The High Court set aside the award, hold the absence of oral evidence unfair for permanent disability cases, and remitted the matter to the Tribunal to record evidence.

What did the court decide?

Matter remitted to the Additional Motor Accident Claims Tribunal to record oral evidence of the injured and award just compensation.

Aneesh @ Unni Vs Anilkumar — Motor Accident Claims | Kerala HC (2017)

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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 P.D.RAJAN

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TUESDAY, THE 14TH DAY OF FEBRUARY 2017/25TH MAGHA, 1938

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MACA.NO. 2344 OF 2015 ()

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AGAINST THE AWARD IN OP(MV) NO.614/2010 OF 3^RD ADDITIONAL DISTRICT & SESSIONS COURT/ADDITIONAL MACT, THODUPUZHA DATED 17.02.2014

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APPELLANT(S)/PETITIONER:

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ANEESH @ UNNI, AGED 33 YEARS, S/O.JOSEPH, KUZHUPPILLIL HOUSE, KUTHIRAKKALU BHAGOM, MARIYAPURAM KARA, THANKAMANI VILLAGE, PIN: 685 602.

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BY ADVS.SRI.C.M.TOMY SRI.MATHEW SKARIA

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RESPONDENT(S)/RESPONDENTS:

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1. ANILKUMAR S/O.RAGHAVAN NAIR, VAZHACKATHADATHIL HOUSE MUTTOM KARA, MUTTOM VILLAGE, PIN: 685 587. (DRIVER)

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2. SUNISH K.S.

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S/O.SREEDHAR, KALAPURACKAL HOUSE, KAKOMBU KARA, MUTTOM VILLAGE, PIN: 685 587. (RC OWNER)

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3. RELIANCE GENERAL INSURANCE CO. LTD REPRESENTED BY ITS REGIONAL MANAGER, 2ND FLOOR, VISHNU BUILDINGS, K.P.VALLON ROAD, KADAVANTHRA, KOCHI 682 020.

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R3 BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI

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SMT.LATHA SUSAN CHERIAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 14-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.D. RAJAN, J.

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M.A.C.A. No.2344 of 2015

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Dated this the 14^th day of February, 2017

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J U D G M E N T

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-------------------

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This appeal is preferred against the award in O.P.(M.V.) No.614 of 2010 of the Additional Motor Accident Claims Tribunal-I, Thodupuzha. The appellant's case is that on 10.04.2010 at 8.30 p.m., while he was travelling in a car bearing registration No.KL-17B-3318 from Thodupuzha to Mariyapuram and when he reached at Sankarapally, a tipper lorry bearing No.KL-38-2210 driven by the 1^st respondent in a rash and negligent manner hit against his vehicle. As a result, he sustained serious injuries. Immediately he was removed to hospital. Subsequently he approached the Motor Accidents Claims Tribunal-I, Thodupuzha for compensation.

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In the trial court, the driver and owner were remained ex-parte. The insurance company admitted the insurance of the vehicle. In order to substantiate the contention, appellant produced only documentary

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M.A.C.A. No.2344 of 2015 2

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evidence in the tribunal. Those documents were marked as Exts.A1 to A8 in which, Ext.A5 is the medical certificate and Ext.A6 is the disability certificate. No oral evidence has been adduced in the trial court to prove the disability. The learned Tribunal awarded a total compensation of Rs.54,800/- with 8% interest per annum from the date of petition till realisation with proportionate costs. Being aggrieved by that, the injured preferred this appeal.

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Learned counsel appearing for the appellant contended that the disability certificate was not properly considered by the tribunal and a meagre amount was awarded as compensation. He also produced another disability certificate issued from the District Medical Board before this Court.

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In a motor accident claim petition, the petitioner is entitled to get a just amount of compensation. Ext.A2 wound certificate shows that the appellant sustained pain and deformity right upper arm and fracture humerus right side. In a claim petition, when

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M.A.C.A. No.2344 of 2015 3

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the injured sustained fracture and disability, it is the primary responsibility of the claimant to adduce oral evidence with regard to the disability. In the absence of such oral evidence, the tribunal awarded compensation in this case.

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In a claim petition onus is on the claimants to

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prove accident and compensation cannot be awarded in the absence of proof. It is true that in a summary proceedings provided under S.169 of the Motor Vehicles Act, 1988 the claimant is not expected to prove her case like in any other civil cases. But, when the accident itself is questioned by the respondents and the involvement of the motor cycle is in question, the claimant is required to prima facie show before the Court that the vehicles involved was a motorcycle and a scooter and he sustained injuries in the accident while travelling in the said motorcycle. This position has been explained in Karnataka State Road Transport Corporation Vs. Smt. Laxmibai [2000 (4) KarLJ 276] which reads as

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M.A.C.A. No.2344 of 2015 4

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follows:

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It is true that in a summarily civil proceedings, claimant is not expected to prove her case like in any other Civil Original proceedings. But when the accident itself is question by the respondents as to the involvement of their bus in question, the claimant is required to prima facie show before the Court that the bus involved was a KSRTC bus and that the bus in which she was travelling and she sustained injuries while travelling in the said bus.”

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It is well settled that a claimant can succeed

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in his claim only when he establishes that the accident had taken place on account of the negligence on the part of the driver of a motor vehicle. Where a person is proceeding just next to the pavement and a vehicle comes from the back and knocks down, that itself show the negligence of the driver. It is true that ordinarily the burden of proving negligence is on the person who alleges it. However, the circumstances of a particular case may speak for themselves and show negligence on the part of the driver of a vehicle. In these circumstances

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M.A.C.A. No.2344 of 2015 5

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it will be the duty of the driver and owner of the vehicle to disprove negligence. Halsbury's Laws of England, 2^nd edition Vol.123 at page 167 reads thus:

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“An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence tells its own defence, the story so told being clear and unambiguous. To these case the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the defendant which if he is to succeed in his defence must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part.”

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Considering the nature of injury, the

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circumstance under which it was sustained and from the nature of treatment, the tribunal ought to have recorded the oral evidence of the injured. But, the learned Tribunal

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M.A.C.A. No.2344 of 2015 6

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disposed of the above claim petition after marking the documentary evidence, which is not fair in permanent disability cases.

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In the circumstance, the award passed by

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the Additional Motor Accident Claims Tribunal-I, Thodupuzha is set aside and the matter is remitted to the Tribunal with a direction to record the oral evidence of the injured by considering the disability certificate also and award the just compensation as claimed by the petitioner. If there is any doubt with regard to the disability, the Tribunal is at liberty to refer the petitioner to the Medial Board and obtain a report regarding the permanent disability. Petitioner is directed to appear before the Additional Motor Accident Claims Tribunal-I, Thodupuzha within one month from the date of receipt of a copy of this judgment.

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This MACA is disposed of as above.

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Sd/-

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P.D. RAJAN, JUDGE

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/ True Copy / P.A. To Judge

Aneesh @ Unni v. Anilkumar

Case brief

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Aneesh @ Unni v. Anilkumar

Case brief

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