Dismissed

Eliamma Lukose v. K.P.Pocker

Kerala HC8 Mar 2022MACA/446/2011

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a motor accident claim appeal where the appellant argued a tribunal should have accepted repair estimates. The court held that without bills or receipts proving the repair work was done and money spent, the claim could not be sustained.

What did the court decide?

The appeal was dismissed; the impugned order of the Motor Accidents Claims Tribunal dismissing the original petition was affirmed.

Eliamma Lukose Vs K.P.Pocker — Contract and Commercial Disputes | 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 M.R.ANITHA

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TUESDAY, THE 8^TH DAY OF MARCH 2022 / 17TH PHALGUNA, 1943

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MACA NO. 446 OF 2011

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AGAINST THE ORDER/JUDGMENT IN OPMV 631/2004 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL

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KOZHIKODE

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APPELLANT/PETITIONER:

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ELIAMMA LUKOSE, W/O. JAMES LUKOSE, ERATHUMANNIL HOUSE, IRAVIPEROOR, THIRUVALLA, REPRESENTED BY POWER OF ATTORNEY HOLDER, SATHYAN, T.M., S/O. MADHAVAN, THAYATHUPARAMBIL HOUSE, MUNAMPAM, PALLIPORT P.O.-683 515, (ORIGINAL POWER OF ATTORNEY PRODUCED BEFORE THE TRIBUNAL) BY ADVS. SRI.LIJU. M.P SRI.G.PADMARAJ

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RESPONDENTS/RESPONDENTS:

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1 K.P.POCKER, S/O. K.P. ALI, RASHEED MAHAL, KODUVALLY P.O., KOZHIKODE. 673 571

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2 V.K.BALAN NAIR S/O. KELU NAIR VARIYAMKANDIYIL HOUSE, KURUVATTOOR P.O., PAYIMBRA, KOZHIKODE-673 571.

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3 THE NEW INDIA INSURANCE CO. LTD. BRANCH OFFICE, CHEROOTTY ROAD, KOZHIKODE.673 571 BY ADV SRI.RENIL ANTO KANDAMKULATHY

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OTHER PRESENT:

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SRI RENIL ANTO KANDAMKULATHY-R3

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON

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08.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA No.446/2011 2

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JUDGMENT

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Appellant is the claimant in O.P.(M.V.)No.631/2004 on the file of Motor Accidents Claims Tribunal, Kozhikode. Claim petition was filed under Section 166 of the Motor Vehicle Act, 1988 (in short, the Act) for compensation of Rs.90,000/- for the damage sustained to the mini lorry bearing Reg.No.KL-7-G3369 in a motor accident occurred on 13.12.1999 by colliding with another lorry bearing Reg.No.KL-11-E-3475 while going from Munambam to Kannur and reached near Fisheries Office, Beach Road, Kozhikode.

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It is alleged that the accident happened due to the rash and negligent driving of the lorry by the 2^nd respondent. First respondent is the R.C. Owner of the offending vehicle. Third respondent is the insurer.

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Third respondent alone contested the matter before the Tribunal and policy coverage with respect to the offending vehicle is admitted. There is no oral evidence from either side. Exts.A1 to A6 were marked from the side of the

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appellant/claimant.

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MACA No.446/2011 3

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On evaluating the pleadings as well as the documents, the Tribunal found that accident happened due to the rash and negligent driving of the lorry by the second respondent. But finding that the appellant/claimant could not prove the claim of damages, ultimately dismissed the Original Petition. Aggrieved by the same, the appellant/claimant approaches this Court for the various grounds stated in the memorandum of appeal.

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Notice was issued to the respondents. First respondent appeared through counsel. Service of notice to the 2^nd respondent was dispensed with. Adv. Sri. Renil Anto Kandamkulathy appeared on behalf of the third respondentinsurer.

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Heard the learned counsel for the appellant/claimant as well as the learned counsel for the third respondent. Lower court records were called for and perused.

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According to the learned counsel for the appellant, appellant produced Ext.A3-Estimate and Ext.A4- Motor Survey

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MACA No.446/2011 4

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T.P. Report as well as Ext.A5-Advance Receipt Bill to prove the amount spent by the appellant for repairing the vehicle. But the Tribunal not accepted all those documents and dismissed the claim petition. It is also contended by the learned counsel that all those documents were marked without any objection and hence the Tribunal ought to have accepted those documents and passed an Award.

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The learned counsel for the insurer on the other hand would contend that there is clear finding by the Tribunal that the Survey Report has not been proved by examining the surveyor and Ext.A3 is only an estimate issued by ENNEMM Motors and nobody was examined to prove Ext.A3 also and hence appellant could not substantiate the claim put forth and hence the Tribunal rightly dismissed the claim petition and hence no interference is called for at the instance of this Court.

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On perusing Exts.A3 to A5, it could be seen that Ext.A3 is only an estimate showing an expense of Rs.41,045/issued from ENNEMM Motors and Ext.A5 is only Advance

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MACA No.446/2011 5

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Receipt and Bill issued on behalf of Tom Jose for receipt of Rs.1,637/- towards travelling allowance and Ext.A4 is the Survey Report, which would show that Tom Jose, EngineerSurveyor and Loss Assessor prepared the motor survey report showing a total expense of Rs.15,210/-. However, further appellant could not produce any document to prove that the work as estimated or as covered by survey report has been carried out and the amount has been spent by him. No bill or receipt to prove the same has been produced. Hence the Tribunal rightly dismissed the claim petition. Though the learned counsel for the appellant sought for remanding the matter since nothing is produced to prove the claim, it will not serve any purpose. In the above backdrop, I find no merit in this appeal, resultantly appeal stands dismissed.

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There is no order as to costs.

Sd/-

M.R.ANITHA

JUDGE

shg/

Eliamma Lukose v. K.P.Pocker

Case brief

What is this about?

What did the court decide?

Eliamma Lukose v. K.P.Pocker

Case brief

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