Remanded

B.Sarada Kunjamma v. K.K.Siddique and Others

Kerala HC3 Oct 2018MACA/337/2011

Case brief

AI extract

What is this about?

In this appeal against an award dismissing a claim for damage to a residential building, the Kerala High Court set aside the Tribunal's judgment. The Court held that the claimant was denied a fair chance to prove her case by rejecting an application for further evidence. The matter was remitted for fresh consideration. Title to property was not resolved as the matter was sent back.

What did the court decide?

The award passed by the Tribunal is set aside and the matter is remitted to the Tribunal for fresh consideration.

B.Sarada Kunjamma Vs K.K.Siddique 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 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940

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MACA.No. 337 of 2011

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AGAINST THE AWARD IN OPMV 1509/2005 of ADDL. M.A.C.T.,KOTTAYAM DATED 28-07-2010

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APPELLANT/CLAIMANT:

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B.SARADA KUNJAMMA, AGED 76 YEARS, SHALEENAM HOUSE, THIRUVATHUKKAL, KOTTAYAM.

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BY ADVS.

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SRI.M.K.DILEEPAN SMT.P.SUMITHRA SRI.DEEPAK T.NEDUNGADAN

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RESPONDENT/RESPONDENTS:

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1 K.K.SIDDIQUE KARAKUNNATH HOUSE, PERINGALA.P.O.,, KIZHAKKAMBALAM-683 565, ERNAKULAM DISTRICT.

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2 M.P.VIJAYAN , MOILETH HOUSE, MULAMTHURUTHY,, ERNAKULAM DISTRICT. 682 314.

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3 THE ORIENTAL INSURANCE CO.LTD. REPRESENTED BY ITS BRANCH MANAGER,, RAILWAY STATION ROAD, ALUVA. 683 101., ERNAKULAM DISTRICT.

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MACA.No. 337 of 2011

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BY ADVS. SRI.A.R.GEORGE SRI.PAUL K.VARGHESE

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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The course pursued by the Tribunal, simply

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dismissing the claim petition preferred by the

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appellant (seeking for compensation in respect of the damage caused to the residential building, particularly the car porch and bath attached rooms situated on the first floor of the building) is the subject matter of challenge in this appeal preferred by the claimant.

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Heard the learned counsel for the appellant and

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the learned counsel for the Insurance Company as well.

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The case projected before the Tribunal by the appellant, who was a septuagenarian, is that she is the

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owner of the property and the building bearing

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No.22/209 of Kottayam Municipality. On 14.05.2004, a

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JCB owned by the first respondent, insured by the third

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respondent and driven by the second respondent was

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MACA.No. 337 of 2011

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being brought to the nearby property, where some construction activities were going on. The vehicle, after passing through a public road, had to take a deep

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curve and in this process, because of rash and negligent driving, the arm of the JCB hit against the pillars of the car porch, causing serious damages to the building of the claimant. This was sought to be compensated by filing a claim petition before the Tribunal. The son-in-law of the claimant had given the F.I. Statement before the police and a case was registered accordingly. Copies of the relevant documents were produced before the Tribunal as Exts.A1 to A11, which includes Exts.A8 Scene Mahazar, Ext.A9 AMVI Report, Ext.A10 final report and also Ext.A5 survey report.

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The Tribunal, after evaluation of the evidence on record, held that Ext.A5 was seen signed by one Sivan Pillai, who was said to be the surveyor of an Insurance Company in which T.B.Balakrishna Pillai, the son-in-law of the claimant/informant, who gave the F.I.Statement to the police was working. Some other

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MACA.No. 337 of 2011

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alleged incriminating circumstances were also noted, with reference to the said documents and it was held that they cannot be accepted to grant any relief to the claimant. It is also pointed out that the claimant had not proved the title to the property/building (No.22/209 of Kottayam Municipality) and it was accordingly, that the claim petition was rejected for not proving the claim.

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The learned counsel for the appellant submits

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that, absolutely no 'contra evidence' was adduced from the part of the respondent insurance company or the owner or the driver of the JCB and as such, the Tribunal ought not to have brushed aside the evidence adduced by the appellant/claimant. Though nobody was examined from the part of the claimant, so as to substantiate the facts and figures, the appellant had filed an I.A. (I.A.No.1658 OF 2010) seeking to adduce further evidence, which was dismissed by the Tribunal, shutting the doors of truth for ever. This Court is of the view that the course pursued by the Tribunal cannot be held as correct or sustainable. A further

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MACA.No. 337 of 2011

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opportunity ought to have been given to the appellant/claimant to prove her claim by producing further evidence, if the materials on record are not adequate enough.

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In the said circumstance, the award passed by

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the Tribunal stands set aside and the matter is remitted to the Tribunal for fresh consideration. The parties shall appear before the Tribunal on 05.11.2018, as suggested by both the sides.

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The parties are at liberty to adduce further

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evidence in support of their contentions.

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Sd/- P.R. RAMACHANDRA MENON, JUDGE

/true copy/

P.S. TO JUDGE.

MACA.No. 337 of 2011

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B.Sarada Kunjamma v. K.K.Siddique and Others

Case brief

What is this about?

What did the court decide?

B.Sarada Kunjamma v. K.K.Siddique and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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