Allowed

National Insurance Co. Ltd. v. Abubakkar

Kerala HC2 Nov 2022MACA/2800/2012

Case brief

AI extract

What is this about?

An appeal was allowed by the High Court of Kerala, Kiajawa, setting aside the award of the Motor Accidents Claims Tribunal, Kollam, for failure to establish that injuries were sustained in a motor accident occurred on 27.10.2010.

What did the court decide?

The appellant insurer was directed to return the sum of Rs.25,000/- deposited at the time of filing the appeal.

National Insurance Co. Ltd. Vs Abubakkar — Motor Accident Claims | Kerala HC (2022)

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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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WEDNESDAY, THE 2ND DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944

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MACA NO. 2800 OF 2012

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AGAINST THE AWARD DATED 31.05.2012 IN O.P(M.V) NO.227/2011 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOLLAM

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APPELLANT/3RD RESPONDENT IN THE O.P:

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NATIONAL INSURANCE CO. LTD.
KOLLAM, REPRESENTED BY ITS AUTHORIZED SIGNATORY,
NATIONAL INSURANCE CO.LTD., KOCHI REGIONAL OFFICE,
2ND FLOOR, OMANA BUILDINGS, M.G.ROAD, KOCHI - 35.

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BY ADV. SRI.A.R.GEORGE

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RESPONDENTS/CLAIMANT & RESPONDENTS 1 & 2 IN THE OP:

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1ABUBAKKAR, S/O.BASHEER KUTTY, BEEMA MANZIL,
KALLELIBHAGOM, KARUNAGAPPALLY, PIN - 690 518.
2SAKTHIDHARAN PILLAI, CHOORILATHU PUTHEN VEEDU,
AMBALATHUMBHAGOM, PERUVAZHY P.O., KOLLAM PIN - 691 001.
*3RAJASEKHARAN PILLAI, S/O.GOVINDA PILLAI PERUVAZHY P.O.
KOLLAM PIN - 691 001. *DELETED*
*THE THIRD RESPONDENT IS DELETED FROM THE PARTY ARRAY
AT THE RISK OF THE APPELLANT, AS PER ORDER DATED
16/12/2021 IN IA 1/21 IN MACA 2800/2012*
BY ADVS.SRI.I.J.AUGUSTINE
 SRI.BENOJ C AUGUSTIN
 SMT.J.KASTHURI
 SRI.NAGARAJ NARAYANAN
 SRI.PRATHAP PILLAI
 SRI.SAIJO HASSAN
 SRI.SEBIN THOMAS
 SRI.SWATHY DAS
 SRI.P.E.SAJAL

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FIANLLY HEARD
ON 02.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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M.A.C.A No.2800 of 2012

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JUDGMENT

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Dated this the 02^nd day of November, 2022

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This appeal is filed challenging an award passed by

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Motor Accidents Claims Tribunal, Kollam (for short ‘the Tribunal’) on 31.05.2012 in O.P.(M.V.) No.227/2011. The appellant is the 3^rd respondent in the Original Petition before the Tribunal.

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An award was passed by the Tribunal in the Original Petition and a sum of Rs.1,25,000/- was arrived at as the compensation payable to the petitioner. The appellant insurer was directed to deposit the said sum with interest at the rate of 7.5% per annum from 22.02.2011, i.e., the date of filing of the Original Petition till the date of realisation and a sum of Rs.2,000/- towards costs. The award amount was directed to be deposited within three months and the 3^rd respondent insurer was also directed to pay interest at the rate of 9% per annum in case of failure to deposit accordingly. The 3^rd respondent has approached this Court challenging the award.

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M.A.C.A No.2800 of 2012

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It is submitted by Sri.A.R.George, the learned counsel for the appellant that in the written statement filed before the Tribunal the occurrence alleged was specifically denied. According to him, the main reason for denial of the occurrence was the lodging of the FIS late by 53 days. According to him, investigation is pursued with on the basis of the FIR registered and a final report was laid, copy of which is marked in evidence as Ext.A7. According to him two wound certificates were prepared after the accident and those together were marked in evidence as Ext.A5. Those certificates were prepared at A.M. Hospital, Karunagappally and Upasana Hospital, Kollam. A perusal of the wound certificates reveal that the injured attended the hospital on 27.11.2010. The accident was alleged in the claim petition as occurred on 27.10.2010. The criminal case records marked in evidence as Exts.A1, A2 and A7 also indicate the date of occurrence as 27.10.2010. The history and alleged cause of the injuries was reported therein as a motor accident occurred on 27.11.2010. It is contended by the learned counsel in the aforesaid circumstances that the Tribunal ought

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M.A.C.A No.2800 of 2012

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to have taken a view on the basis of the contention raised in the written statement by the appellant before it that the accident was not occurred and the petitioner has not sustained any injuries in the motor accident as alleged.

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The medical documents marked in evidence do not

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indicate that the petitioner had sustained injuries in a motor accident occurred on 27.10.2010.

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True that a specific contention of denial of accident was raised by the appellant in it’s written statement. But the Tribunal failed to advert to the contention so raised. Based on the criminal case documents marked in evidence as Exts.A1, A2 and A7 and oral evidence adduced by the petitioner as PW1, the Tribunal arrived at a finding that the accident was occurred on 27.10.2010 and the petitioner sustained injuries. The Tribunal failed to take note of the inordinate delay of 53 days occurred in lodging the FIS. Cogent reasons for the delay was also not furnished by the petitioner in the FIS lodged. On the basis of the chargesheet laid after concluding the investigation in the crime so registered, that the Tribunal arrived at a finding that the accident was resulted due to the

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M.A.C.A No.2800 of 2012

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rash and negligent riding of the motor cycle by it’s rider who is none other than the 2^nd respondent in the Original Petition. The Tribunal failed to notice the date on which the petitioner was brought to the hospital after the accident for availing treatment. Therefore, the Tribunal is erred in arriving at a finding that the petitioner sustained injuries described in Ext.A5 in a motor accident occurred on 27.10.2010.

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As already discussed, Ext.A5 incorporates two wound certificates, one prepared at A.M.Hospital, Karungappally and other at Upasana Hospital, Kollam. In both certificates, the date of availing of treatment, is noted as 27.11.2010. The history and the alleged cause of injury was recorded in Ext.A5 as a motor accident occurred on 27.11.2010. A medical document pertaining to the treatment availed by the petitioner on 27.10.2010 is not forthcoming in evidence. The medical documents available refer to a motor accident occurred on 27.11.2010, where as in the criminal case records pertaining to the motor accident, the date of accident is 27.10.2010. In the above said circumstances the contention raised by the appellant, insurer is found to have

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M.A.C.A No.2800 of 2012

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merits. This Court finds every reason to reverse the impugned award.

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In the result, M.A.C.A stands allowed. The

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impugned award is set aside. The claim petition filed by the petitioner as O.P(M.V) No. 227/2011 is dismissed, for his failure to establish that the injuries with reference to which compensation was claimed were sustained in a motor accident occurred on 27.10.2010.

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It is submitted by the learned counsel for the appellant that Rs.25,000/- has been deposited at the time of filing of the appeal. Since the appeal stands allowed and the impugned award stands set aside, this Court finds it reasonable to direct return of the said sum stands in deposit to the appellant.

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MARY JOSEPH JUDGE

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NAB

National Insurance Co. Ltd. v. Abubakkar

Case brief

What is this about?

What did the court decide?

National Insurance Co. Ltd. v. Abubakkar

Case brief

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