IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR FRIDAY, THE 7TH MARCH 2008 / 17TH PHALGUNA 1929 MACA.No. 522 of 2004() ---------------------------------- (O.P(MV) NO.81 OF 1999, MACT, THODUPUZHA) APPELLANT/PETITIONER: ---------------------------------- BIJU, S/O. THANKAPPAN, MACHIYANITHUNDATHIL HOUSE, AMARAVATHY KARA AND P.O KUMILY VILLAGE. BY ADV. SRI.MATHEW JOHN (K) RESPONDENTS: RESPONDENTS: -------------------------------------------- 1. REJI, S/O. VASU, KAITHAKUZHY HOUSE, AMARAVATHY KARA, AMARAVATHY P.O., KUMILY VILLAGE. 2. THOMAS MATHEW, S/O. MATHEW, THOONGAMPARAMPIL HOUSE, KUMILY P.O., IDUKKI. 3. THE UNITED INDIA INSURANCE CO. LTD., MUVATTUPUZHA. BY ADV. SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = M.A.C.A. NO.522 OF 2004 = = = = = = = = = = = = = = = = = = = Dated this the 7th day of March, 2008 J U D G M E N T -------------------- Petitioner in O.P(MV) No.81 of 1999 on the file of the Motor Accidents Claims Tribunal, Thodupuzha, is the appellant. Appellant sustained injuries in a motor vehicle accident. He filed the Original Petition claiming compensation impleading the owner, driver and Insurer of the vehicle. 2. In the Original Petition it was averred that the appellant was working as a driver-cum-cleaner in a lorry bearing Reg. No.KL-6/3735. In the night of 25/26.3.1998 he was travelling in the lorry, which was loaded with pepper, from Kumily to Kochi. It was averred that when the vehicle reached near Pala, the door was opened and he was thrown out of the vehicle. He was treated as an inpatient in the hospital. It was averred that the accident occurred while the first respondent swerved the vehicle at a curve in a rash or negligent manner and in that process he was thrown away from the vehicle. Petitioner claimed Rs.2,50,000/- as compensation. Owner M.A.C.A.. NO.522 OF 2004 -: 2 :- and driver filed written statement. It was admitted that the petitioner was working as a cleaner in the lorry. It was contended that the petitioner was sleeping in the lorry. It was also contended that there was no negligence on the part of the first respondent, driver. It was further contended that even if the petitioner is entitled to get any compensation, the Insurer is liable to pay the same. Insurer had raised a contention that there was no negligence on the part of the driver of the vehicle. It was contended that the accident occurred due to the negligence of the petitioner himself. It was also contended that no accident as alleged in the petition took place and the Insurer is not liable to pay the compensation. Quantum of compensation claimed was also disputed. 3. Tribunal found that the allegation of the petitioner that the accident occurred due to the negligence of the driver of the lorry is false. Tribunal found that normally the petitioner would have been entitled to get a compensation of Rs.23,730/-. But finding that the petitioner was not entitled to get the compensation, Tribunal dismissed the claim petition. M.A.C.A.. NO.522 OF 2004 -: 3 :- Challenging that award, the petitioner himself had filed this appeal. 4. Learned counsel appearing for the appellant has strenuously argued before me that the finding of the Tribunal that the case put forward by the appellant was false is not correct. It is argued that the owner and driver of the lorry did not raise a contention that the accident occurred due to the negligence of the appellant. Learned counsel appearing for the Insurer has argued that the entire case put forward by the appellant was false. 5. Accident occurred at about 1.00 a.m. on 26.3.1998. Immediately after the accident, appellant was taken to the Taluk Headquarters Hospital at Pala. Doctor noted contusion on the medial aspect of right upper arm and a visceral injury. The appellant was referred to the Medical College Hospital, Kottayam. Exhibit A7 is the discharge card issued by the Medical College Hospital. It shows that the appellant sustained a blunt injury to the abdomen, he complained of abdominal pain, he was hemodynamically and neurologically stable, Exploratory laparotomy was done under general M.A.C.A.. NO.522 OF 2004 -: 4 :- anesthesia, there was 2000 ml. of blood in the peritoneal cavity. The doctor also noted that Posterosuperior aspect of the liver was fragmented and actively bleeding, fragmented edges joined and haemostatis achieved. So the fact that the appellant was admitted and treated in the hospital with the above noted injuries on 26.3.1998 is proved. In Exhibit A6 also it was stated that appellant sustained injuries on account of falling from the top of a loaded lorry while he was climbing down and he fell down hitting his abdomen over a concrete wall. So the cause of injury given by the doctor was that the injuries caused while the appellant was trying to climb down in a loaded lorry. Evidence on record shows that intimation was given to the police from the Taluk Headquarters Hospital on the date of accident itself. The fact that the appellant was referred to the Medical College Hospital, Kottayam was also stated. But the police went to the Hospital only on 28.3.1998 and recorded the statement of P.W.2. In the FIR it was recorded that the injured was unconscious. Appellant produced a disability certificate issued by the Medical Bord attached to the Taluk Headquarters M.A.C.A.. NO.522 OF 2004 -: 5 :- Hospital, Pala showing that he was having 12% disability. The discharge card issued by the Medical College Hospital shows that immediately after the admission Exploratory laparotomy under general anesthesia was done on the appellant. There was 2000 ml. of blood in the peritoneal cavity. Posterosuperior aspect of the liver was fragmented and actively bleeding. It is true that the evidence adduced by the appellant to prove the negligence of the driver was not sufficient. Status of the appellant was admitted by the driver and owner of the lorry also. Even assuming that a claim under Section 166 of the Motor Vehicles Act is not maintainable, the Tribunal ought to have considered whether the appellant is entitled to get compensation under Section 140 of the Act. So I have no other option but to set aside the impugned award and remand the case to the Tribunal for fresh disposal. Since I have decided to remand the case for fresh disposal, the findings of the Tribunal regarding negligence and quantum of compensation are also set aside. It is open to the appellant to adduce further evidence to prove those points also. M.A.C.A.. NO.522 OF 2004 -: 6 :- 6. In the result, the appeal is allowed. The award passed by the Tribunal is hereby set aside and the case is remanded. The Motor Accidents Claims Tribunal, Thodupuzha is directed to take O.P(MV) No.81 of 1999 back to file and dispose of the same afresh in accordance with after giving opportunity to both sides to adduce evidence, if so advised. Parties are directed to appear before the Tribunal on 2.4.2008. K. PADMANABHAN NAIR, JUDGE. vsv K. PADMANABHAN NAIR, J. ===================== M.F.A. ===================== J U D G M E N T ------------------------------------------- TH MARCH, 2008