Remanded

Krishna Kumar v. M.Assu and Others

Kerala HC17 Oct 2018MACA/1065/2007

Case brief

AI extract

What is this about?

The High Court set aside an award dismissing the appellant's motor accident claim due to casual negligence fixation by the Tribunal. The matter was remanded for fresh consideration with liberty to adduce additional evidence. Reserved costs were passed due to the appellant's delay in paying the process charge.

What did the court decide?

Award set aside and matter remanded to Tribunal for fresh consideration with liberty to adduce additional evidence.

Krishna Kumar Vs M.Assu and Others — Motor Accident Claims | Kerala HC (2018)

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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.R.RAMACHANDRA MENON

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WEDNESDAY,THE 17TH DAY OF OCTOBER 2018 / 25TH ASWINA, 1940

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MACA.No. 1065 of 2007

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AGAINST THE AWARD IN OPMV 504/2003 of M.A.C.T., PALAKKAD DATED 22-02-2007

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APPELLANT/PETITIONER:

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KRISHNA KUMAR, S/O.MADHAVAN NAIR, AGED 27 YEARS, NO.44, PRASANTH NAGAR,, AMBIKAPURAM, PALAKKAD-678011.

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BY ADV. SRI.JACOB SEBASTIAN

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RESPONDENTS/RESPONDENTS:

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1 M.ASSU , MANAGING PARTNER, BYMORE FOOD PRODUCTS,, GOVINDAPURAM, CALICUT.

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2 MURALI, AGED 38 YEARS S/O KANDANKUTTY, KURUDIYIL HOUSE,PANTHIRANKAVU, POST, CALICUT.

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3 THE NATIONAL INSURANCE COMPANY LTD. DIVISION II, CALICUT.

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R3 BY ADV. SHRI LAL GEORGE

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.No. 1065 of 2007

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JUDGMENT

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Dismissal of the claim petition preferred by the

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appellant holding that the appellant/claimant alone was responsible for the accident occurred on collision

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between the motor cycle ridden by the appellant and the tempo van owned, driven and insured by the respondents concerned, is put to challenge in this appeal.

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The appeal was admitted way back on

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20.06.2007, but no process charge was remitted by the appellants, till 03.10.2018. Yesterday, when the

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matter was taken up for consideration, this Court directed the Registry to show the name of Shri Lal

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George, Standing Counsel for the Insurance Company in the cause list.

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Heard the learned counsel for the appellant as well as the learned Standing Counsel for the Insurance

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Company.

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The appellant was stated as riding the motor

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cycle bearing No.KL.9/2562 on 11.02.2003. According to

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MACA.No. 1065 of 2007

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him, the tempo van, which was coming from the opposite side in a rash and negligent manner hit against the motor cycle, causing serious injuries. The police had registered a case as Crime No.26/03 of Hemambika Nagar Police Station. The injuries were sought to be

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compensated by filing the claim petition.

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The third respondent Insurance Company contested the claim denying the policy, disputing

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negligence and also the quantum of compensation payable

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(as taken note of in paragraph 3 of the award. )

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The evidence tendered before the Tribunal

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consists of the oral testimony of the appellant as P.W.1 and documents produced as Exts.A1 to A7; besides Ext.B1 policy in respect of the tempo van (produced

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from the part of the respondent). The Tribunal

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observed at more places than one occasion, in paragraph '6' of the award, that the appellant/claimant who was examined as P.W.1 was not properly cross examined regarding the negligence. It was held by the Tribunal that, as per Exts.A3(a) and A3(b) reports of the AMVI

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MACA.No. 1065 of 2007

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in respect of the Tempo van and the motor cycle respectively and the damage caused to the vehicles and its location, the motor cycle had come and hit on the right side of the body of the tempo van and as such, the accident was not due to the negligence of the driver of the tempo van, but for the negligence on the part of the rider of the motor cycle/claimant himself.

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This Court finds it difficult to accept the

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said proposition as no evidence was adduced from the part of the respondents to fix negligence on the rider himself, more so when the rider/claimant was examined as p.w.1 and was supported by the police records. There is no discussion by the Tribunal as to Ext.A1 FIR or Ext.A2 Scene Mahazar. The spot at which the accident occurred, how it had occurred, what is the version given by P.W.1 and what is the case put up by the police etc. have not been adverted to. It is also not discernible as to why the entire negligence has been fixed upon the rider himself and whether there was at least any contributory negligence on the part of the

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MACA.No. 1065 of 2007

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second respondent/driver of the tempo van. Fixation of negligence has been done in a casual manner, which requires to be re-considered. In the said

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circumstance, this Court finds it appropriate to set aside the award and remand the matter for fresh consideration, giving opportunity to both the sides to substantiate their stand. It is ordered accordingly.

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As mentioned already, there is serious lapse on the part of the appellant in remitting the process charge. Though the appeal was admitted on 20.06.2007, the process charge came to be remitted only on 03.10.2018. In the said circumstances, if the Tribunal finds that the claimant is entitled to get compensation, in any manner, the liability to satisfy interest for the said compensation will run only from the date of claim petition till the date of award passed by the Tribunal, i.e. on 22.02.2007, and thereafter from today. As suggested by the learned counsel of both sides, the parties shall appear before the Tribunal on 26.11.2018 . The parties are at liberty

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MACA.No. 1065 of 2007

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to adduce additional evidence before the Tribunal to

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support their pleadings.

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The Registry is directed to send back the LCR to

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the Tribunal forthwith.

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Sd/- P.R.RAMACHANDRA MENON, JUDGE

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Krishna Kumar v. M.Assu and Others

Case brief

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Krishna Kumar v. M.Assu and Others

Case brief

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