Partly allowed

Sarojini v. Biju @ Bijumon

Kerala HC8 Apr 2021MACA/4186/2017

Case brief

AI extract

What is this about?

In two joint motor accident appeals, the High Court set aside the MCC Tribunal's total dismissal of compensation claims despite confirmed driver negligence. The Court remanded the cases to grant fresh evidence opportunities, as the Tribunal dismissed proceedings without adequately assessing available evidence and proper opportunities for the parties.

What did the court decide?

Appeals allowed in part; impugned award setting aside compensation claim dismissed; finding on negligence maintained; case remanded to Tribunal for fresh evidence within 5 months.

Sarojini Vs Biju @ Bijumon — Motor Accident Claims | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

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MACA.No.4186 OF 2017(E)

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AGAINST THE AWARD IN OP(MV) NO.720/2009 DATED 17-06-2017 ON THE FILES OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THODUPUZHA

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APPELLANT/PETITIONER:

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SAROJINI,

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W/O.LATE KUNJURAMAN, KOCHUTHARAYIL HOUSE, KARADIKUZHY, PEERMADE.

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BY ADVS.

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SRI.T.K.KOSHY SMT.A.P.BEELAMMA

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RESPONDENTS/RESPONDENTS 1 TO 3:

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1 BIJU @ BIJUMON, S/O.RAJAPPAN, INCHIKKATTU ESTATE, LAYAM NO.10, PERIYAR VILLAGE, PIN 685 533.

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2 BABU THOMAS, VETTUKALLAMKUZHY HOUSE, ERUMELI P.O., KOTTAYAM, PIN-686 509.

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3 CHOLAMANDALAM M.S.GENERAL INSURANCE CO. LTD., M. C. ROAD, KOTTAYAM, PIN-686 001.

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R3 BY ADV. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB (SR.)

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2021, ALONG WITH MACA.4315/2017(F), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.Nos.4186 & 4315 OF 2017

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

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MACA.No.4315 OF 2017

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AGAINST THE AWARD IN OP(M.V)NO.719/2009 ON THE FILES OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA

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APPELLANTS/PETITIONERS 1 TO 3:

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1 RASHEEDA.B, W/O. LATE NAZER, THAZHETHURUTHIYIL HOUSE, INJIKAD ESTATE, VANDIPERIYAR.

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2 ASMI NAJIMUNISA, THAZHETHURUTHIYIL HOUSE, INJIKAD ESTATE, VANDIPERIYAR.

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3 ASMI REJUNA FATHIMA, THAZHETHURUTHIYIL HOUSE, INJIKAD ESTATE, VANDIPERIYAR.

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BY ADVS.

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SRI.T.K.KOSHY SMT.A.P.BEELAMMA

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RESPONDENTS/RESPONDENTS 1 TO 3:

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1 BIJU @ BIJUMON, S/O.RAJAPPAN, INCHIKKATTU ESTATE, LAYAM NO.10, PERIYAR VILLAGE PIN- 685 533.

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2 BABU THOMAS, VETTUKALLAMKUZHY HOUSE, ERUMELI P.O., KOTTAYAM, PIN - 686 509.

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3 CHOLAMANDALAM M.S.GENERAL INSURANCE CO.LTD, M.C.ROAD, KOTTAYAM, PIN - 686 001.

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R3 BY ADV. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08.04.2021, ALONG WITH MACA.4186/2017(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA.Nos.4186 & 4315 OF 2017

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JUDGMENT

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[ MACA.4186/2017, MACA.4315/2017 ] Dated this the 8^th day of April, 2021

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These two appeals have arisen out of an award passed by Motor Accidents Claims Tribunal, Thodupzha (for short 'the Tribunal') on 17.06.2017 in O.P.(M.V.)Nos.719 of 2009 and 720 of 2009.

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O.P.(M.V.) No.720 of 2009 was filed by one Mrs.Sarojini claiming compensation for the damages caused to her property and O.P(M.V.)No.719 of 2009 was filed by the wife and children seeking compensation for the death of Mr.Nazer in the motor accident. Joint trial was allowed and before the Tribunal, evidence was adduced in common by both the parties. On the side of the claim petitioners, Panchayath Ward Member was examined as PW1 and Exts.A1 to A18 were marked. On the side of the respondent, one Mrs.Shiny James, the Advocate

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MACA.Nos.4186 & 4315 OF 2017

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Commissioner was examined as RW1 and Ext.B1 policy was marked. On appreciation of the evidence, the Tribunal found negligence on the part of the driver of the motor vehicle in the affirmative. The Tribunal has also found that Mr.Nazer was travelling in the offending goods carrier as a gratuitous passenger and therefore the owner cannot be made liable for the injuries sustained by him. The Tribunal has also found that the motor vehicle involved in the accident was not having valid insurance as premium was not paid at the relevant time of accident. With regard to the compensation sought for damages caused to the property, the Tribunal found that damages were not resulted from the accident and therefore the claim petition is not maintainable. Accordingly, both Original Petitions were dismissed by the Tribunal. Aggrieved by the award dismissing O.P(M.V) No.719 of 2009 and O.P (M.V) No.720 of 2009, appeals were filed respectively as MACA No.4315 of 2017 and MACA No.4186 of 2017 before this Court.

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It is urged by Sri.T.K.Koshy, the learned counsel for the appellants in both cases that sufficient evidence was adduced by the claim petitioners to establish that the deceased was

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MACA.Nos.4186 & 4315 OF 2017

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accompanying the sand loaded in the vehicle that met with the accident. According to him, Ext.A1 is the FIR in Crime No.78/2008 of Vandiperiyar Police Station, Ext.A3 is the scene mahazar prepared in the said crime and Ext.A5 is the final report laid in the said crime. According to him, Ext.A11 and A12 are administration certification issued from Vandiperiyar Grama Panchayath and Exts.A13 and A14 series respectively are permit book and permit bills. According to him, the documents marked by the claim petitioners in evidence would describe the deceased

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as a sand merchant, traveling in the vehicle involved in the accident as owner of the sand loaded in it. According to him, the wife of the deceased had also filed Proof Affidavit before the Tribunal elaborating the above aspects. But, overlooking the evidence referred to above, the Tribunal found that the deceased was a gratuitous passenger in the vehicle and accordingly denied compensation to his legal heirs.

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In MACA No.4186 of 2017 the contention taken by the learned counsel was that the evidence adduced in O.P.(M.V) No.720 of 2009 incorporate Ext.A3, the copy of the scene Mahazar, Ext.A4 the commission report, and the oral evidence

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MACA.Nos.4186 & 4315 OF 2017

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tendered by RW1. But, the Tribunal overlooked those material pieces of evidence and arrived at a conclusion that damages were not caused to the property of the claimant in the motor accident. Accordingly the claim petition was dismissed. According to the learned counsel, the Tribunal is not justified in dismissing the claim petitions without adverting to the evidence already adduced by the claimants and available on record.

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According to Sri.Mathews Jacob, the learned Senior Counsel, true that proof affidavit was filed by the wife of the deceased but she failed to mount the box to facilitate opportunity to the counsel for the respondent to cross examine her. Therefore, the affidavit does not form part of the record of evidence in the case. According to him the Tribunal cannot be found fault with in the above context for not placing reliance on the proof affidavit filed by the wife of the deceased. The learned Senior Counsel added that the 3^rd respondent/insurer was denied with sufficient opportunity by the Tribunal to adduce evidence regarding the bouncing of cheque and cancellation of policy. In the above circumstances, the learned Senior Counsel canvassed for grant of a fresh opportunity, by remanding the case.

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MACA.Nos.4186 & 4315 OF 2017

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According to him, if that be done, both sides would get opportunity to adduce satisfactory evidence.

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This Court finds that evidence have come on record

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from the claim petitioners. But as rightly pointed out by the learned Senior Counsel, the wife of the deceased who had filed the proof affidavit failed to mount the box for providing opportunity to the opposite party to cross examine her. Therefore, the proof affidavit filed by the wife of the deceased does not form part of the record of evidence. Moreover, the learned counsel for the 3^rd respondent has raised some precise contentions that the cheque issued towards premium was bounced and for the reason, issuance of policy was not materialized. But the 3^rd respondent failed to adduce evidence to establish communication of the factum of bouncing of the cheque to the owner/insured of the vehicle. Similarly, it is indicated from a reading of Ext.A3 scene mahazar that damages caused to the plantation in the property was described therein. Ext.A4 commission report was also made available in evidence by the claim petitioners. But, without even making any discussions on the evidence above and without applying mind to the relevancy

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MACA.Nos.4186 & 4315 OF 2017

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and admissibility of those, the Tribunal dismissed the claim petitions.

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The impugned award in view of this Court suffers for the reasons and this Court finds it just and reasonable to set aside the same to the extent it failed to assess the compensation payable in the respective claim petitions and to pass an award in favour of the claim petitioners. The Tribunal had already found on the basis of Exts.A1, A3 and A5 that the driver of the vehicle was rash and negligent and responsible for the accident to occur. Parties also have not raised any controversy regarding the said finding of the Tribunal. This Court finds the finding of the Tribunal on negligence as correct and justifiable and accordingly declares it as maintained.

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In the result, both appeals are allowed in part. The award to the extent it dismisses the claim of the petitioners for compensation alone is set aside. The finding on negligence of the driver is maintained. Both Original Petitions are remanded back to the Tribunal. The Tribunal shall grant yet another opportunity to the claimants as well as to the 3^rd respondent to adduce evidence to establish their respective claims. The

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MACA.Nos.4186 & 4315 OF 2017

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Original Petitions being of the year 2009, the Tribunal shall see that those are disposed of within a period of five months from the date of receipt by it of a copy of this judgment. The parties to both the claim petitions shall appear before the Tribunal on 10.08.2021, and shall render necessary co-operation to the Tribunal in the matter of reconsideration of the claim petitions and disposal of those.

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The records of the Original Petitions shall be transmitted to the Tribunal forthwith.

Sd/-

MARY JOSEPH

JUDGE

NAB

Sarojini v. Biju @ Bijumon

Case brief

What is this about?

What did the court decide?

Sarojini v. Biju @ Bijumon

Case brief

What is this about?

What did the court decide?

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