Remanded

N.v.Bicheevi v. Moideen Haji

Kerala HC6 Oct 2023MACA/1651/2012

Case brief

AI extract

What is this about?

This appeal challenges the dismissal of a motor accident claim by the Tribunal on grounds that the appellant failed to prove injury. The High Court found force in the contention that the appellant's appearance in an emergency outpatient ticket registered 20 minutes post-accident strongly suggests injuries, despite the appellant's name missing from the FIR or final report. The award was set aside.

What did the court decide?

Award set aside; matter remanded to Tribunal for fresh consideration and liberty to adduce evidence; case listed for hearing.

N.v.Bicheevi Vs Moideen Haji — Medical Negligence | Kerala HC (2023)

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MACA NO. 1651 OF 2012

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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 ZIYAD RAHMAN A.A.
FRIDAY, THE 6TH DAY OF OCTOBER 2023 / 14TH ASWINA, 1945

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MACA NO. 1651 OF 2012

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AGAINST THE AWARD DATED 17.12.2011 IN OP(MV)NO.572/2011 OF
MOTOR ACCIDENT CLAIMS TRIBUNAL,KOZHIKODE

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APPELLANT/PETITIONER:

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N.V.BICHEEVI

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AGED 56 YEARS
W/O.LATE USSAIN, CHAKKUMKADAVU HOUSE, ANAMADU,
KALLAI P.O., KOZHIKODE.
BY ADV SMT.K.V.RESHMI

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RESPONDENTS/RESPONDENTS:

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1 MOIDEEN HAJI S/O.MOTHI, CHUNGATHARAKKAL HOUSE, P.O.KAZHAKKOTH, KODUVALLY (VIA), KOZHIKODE, PIN - 673 572.

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2 NOUSHAD, S/O.MUHAMMED, KELATTU PURAYIL HOUSE, P.O.PARANNUR, NARIKKUNI, KOZHIKODE, PIN - 673 585.

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3 THE NEW INDIA ASSURANCE CO.LTD. SHAFEER COMPLEX, OPP.YMCA, KANNUR ROAD, KOZHIKODE.

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OTHER PRESENT:

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SC SRI.M.PREMCHAND

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 06.10.2023, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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MACA NO. 1651 OF 2012

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ZIYAD RAHMAN, A.A, J

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M.A.C.A No.1651 of 2012

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Dated this the 6th day of October, 2023

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JUDGMENT

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The appellant is the petitioner in OP(MV)No.572/2011 of

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the files of the Motor Accidents Claims Tribunal, Kozhikode.

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The claim petition was submitted by him seeking compensation

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for the injuries he sustained in a motor accident that occurred on 30.04.2010. According to her, the accident occurred at 4.20 pm on the said date, while she was travelling in a bus bearing Registration No.KL-11-N-8512 from Kozhikode to Palath road, and when it reached near Chelannur, another bus bearing Registration No.KL-11-U-7474, driven by the second respondent, hit on the said vehicle. Consequent to the accident, she sustained serious injuries, and she was taken to the Medical College Hospital, Kozhikode.

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The first respondent was the owner of the bus

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bearing Registration No.KL-11-U-7474 and the third respondent

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MACA NO. 1651 OF 2012

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is the insurer of the said vehicle. The claim petition was submitted seeking compensation of Rs.60,000/-. The third respondent filed a written statement, admitting the coverage of the insurance policy over the said vehicle but disputed the liability on various grounds. They also disputed the negligence and quantum of compensation.

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The evidence in this case consists of Exts.A1 to A4

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from the side of the appellant, and no evidence was adduced from the side of the respondent.

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After considering the materials placed on record, the Tribunal found that the appellant failed to prove that the appellant sustained injuries in the accident referred to by her in the claim petition. Accordingly, the claim petition was dismissed. This appeal is filed challenging the same.

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Heard Smt.Rashmi K V, the learned counsel appearing for the appellant and Adv.Sri.Premchand learned

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counsel appearing for the third respondent Insurance

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MACA NO. 1651 OF 2012

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Company. Even though the service of notices was affected

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against other respondents, there is no appearance for them.

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The learned counsel for the appellant contends that

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the finding of the Tribunal holding that the appellant failed to prove that she sustained injuries in the accident is erroneous. After considering the materials on record, I find some force in the said contention. Of course, it is true that in Ext.A1 FIR and Ext.A4 final report, the name of the appellant is not mentioned as one of the victims of the said accident. However, I am of the view that, by itself cannot be a reason to conclude that the appellant has not sustained any injuries

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in the accident. Evidently, the accident occurred when two buses collided with each other and several persons sustained injuries. The possibility that some of the injured were omitted to be included in the police report cannot be ruled out. The learned counsel for the appellant relied on Ext.A2 emergency OP ticket. It was registered at 4.41 pm on 30.04.2010,

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MACA NO. 1651 OF 2012

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whereas the accident occurred at 4.20 pm on 30.04.2010.

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Thus, it is evident that this emergency outpatient ticket was generated from the emergency outpatient department of the Medical College Hospital, Kozhikode, within 20 minutes after the accident. The proximity in time of the registration of the outpatient ticket to the time of the accident makes the case of the petitioner highly probable.. Therefore, it is only proper in

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the interest of justice that the appellant be granted an opportunity to substantiate the same by adducing evidence.

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In such circumstances, the award passed by the

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Motor Accidents Claims Tribunal, Kozhikode, in

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OP(MV)No.572/2011 dated 17.12.2011 is hereby set aside, and

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the matter is remanded back to the Tribunal for fresh consideration. All the parties shall be at liberty to place on record further pleadings or adduce evidence to substantiate their respective contentions. The parties are directed to appear before the Motor Accidents Claims Tribunal, Kozhikode, on

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MACA NO. 1651 OF 2012

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06.11.2023. Since the first and second respondent have not appeared before this court, further notice has to be sent to them by the Tribunal before adjudicating the case. The Tribunal shall take every endeavour to complete the trial of this case, as expeditious as possible, at any rate, within a period of 3 months from the date of completion of notice on respondents 1 and 2.

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The appeal is disposed of with the above observations.

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sd/-

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ZIYAD RAHMAN, A.A, JUDGE

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R.AV

N.v.Bicheevi v. Moideen Haji

Case brief

What is this about?

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N.v.Bicheevi v. Moideen Haji

Case brief

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