IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 MACA.No. 1294 of 2010() ----------------------- OPMV.934/2008 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT(S): 3RD RESPONDENT IN THE OP: ---------------------------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD,MANJERI, REPRESENTED BY THE AUTHORIZED SIGNATORY, THE ORIENTAL INSURANCE CO.LTD,REGIONAL OFFICE, ERNAKULAM,METRO PALACE,ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.A.R.GEORGE RESPONDENT(S): CLAIMANT & RESPONDENTS 1 & 2 IN THE OP: ------------------------------------------------------------------------------------------------ 1. KUNHEETHU,S/O.MUHAMMED KUTTY, UNNIYALUNGAL HOUSE,CHELARI,P.O.THENHIPALAM, MALAPPURAM,NOW RESIDING AT KUNNATHPARAMBA, PO FEROKE,CALICUT-673 631. 2. MOIDEEN KOYA,S/O.MAMMED,NARIKOTTU MECHERI HOUSE,MOONNIYOOR,ALINCHUVADU, MALAPPURAM DISTRICT-676 311. 3. HASSAN,S/O.KUNHI MOHAMMED,VETTIYATTIL HOUSE,MOONNIYOOR,ALICHUVADU, MALAPPURAM DISTRICT-676 311. R1 BY ADVS.SRI.K.M.JAMALUDHEEN, SMT.LATHA PRABHAKARAN. R2 & R3 BY ADV. SRI.ZUBAIR PULIKKOOL THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.1825/2010 IN MACA NO.1294/2010 DISMISSED 15/06/2011 SD/- HARUN-UL-RASHID, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss HARUN-UL-RASHID,J. ------------------------------- M.A.C.A. NO. 1294 OF 2010 ------------------------------- DATED THIS THE 15TH DAY OF JUNE, 2011 JUDGMENT The 3rd respondent-Insurance Company in O.P.(MV). No.934/2008 on the file of the Motor Accidents Claims Tribunal, Tirur is the appellant. This appeal is directed against the award dated 15/3/2010 passed in the said original petition. The lst respondent/claimant filed the original petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation under different heads, alleging that he sustained injuries, when he fell down form the goods autorickshaw bearing Regn.No.KL-10/Q- 1905 while towing the load. The accident occurred on 7/6/2004. It is pleaded that the accident was occurred when the 2nd respondent- driver negligently took the vehicle forward at a time when the vehicle remains stationary and the claimant was tighten the goods in the autorickshaw. 2. The lst respondent claimed `1,00,000/- as -2- MACA.No.1295/2010 compensation under different heads. The Insurance Company alone contested the O.P. They have filed a written statement denying the alleged negligence of the 2nd respondent. The Insurance Company also contended that the claim of the petitioner is exorbitant. An additional written statement was also filed stating that the claim made against the Insurance Company is legally not sustainable. 3. The petitioner in the OP was examined as PW-1. He has produced Exts.A1 to A6. Ext.B1 is a copy of the insurance policy. Ext.C1is the disability certificate. After appreciating the evidence on record, the Tribunal found that while the petitioner was unloading empty sacks, the driver took the autorickshaw in a hurry and thereby the claimant fell down and sustained injuries. The Tribunal accepted the evidence tendered by PW1. PW1 tendered evidence to the effect that on 7/6/2004 while he was untying the empty sacks bundles, the 2nd respondent moved the autorickshaw in a hurry and thereby he fell down and sustained -3- MACA.No.1295/2010 injuries. The Tribunal also found that the accident happened at a time when the autorickshaw remains stationary, that while so the driver took the autorickshaw in a hurry and thereby the accident happened. The Tribunal relying on the evidence of the claimant, found that the accident happened when the petitioner get into outside cabin platform of the autorickshaw and tried to tie the empty sacks bundles and it is in such circumstances he fell down and sustained injuries. 4. The Tribunal, after appreciating the oral and documentary evidence including Ext.A2 wound certificate, Ext.A3 treatment book, Ext.A4 and Ext.A5, held that the claimant sustained serious injuries and that he suffers from permanent partial disability. The Tribunal also held that the claimant is entitled to get a total amount of `55,910/- towards compensation. 5. The learned counsel for the appellant contended inter alia that the accident was happened while the claimant was travelling along with the driver, that the claimant is a loading and -4- MACA.No.1295/2010 unloading worker and that he sustained injuries not in a motor vehicle accident. The counsel also contended that the appellant/petitioner is entitled to claim compensation and that the Insurance Company has no liability to cover the risk of the petitioner. The counsel also pointed out that the claimant has no consistent case, it is so evident from the pleadings and his testimony as PW1. In the above circumstances, I have gone through the pleadings in the written statement and additional written statement. There is no pleading to the effect that the claimant was a passenger in the goods vehicle, that he is a loading and unloading worker and that the accident happened at a time when the claimant was a passenger in the goods vehicle. In the written statement there is no narration of acts of the accident. It is not stated that the accident was caused while the autorickshaw was moving nor it is stated that the accident occurred while the autorickshaw remains stationary. So long as the contentions now urged is not supported by the pleadings, it is difficult for this Court -5- MACA.No.1295/2010 to accept the contentions of the appellant. Moreover, it is seen that the Insurance Company did not adduce any evidence in support of the stand now taken in the appeal. The quantum awarded by the court below is not disputed at the time of final hearing. I find that the appellant has not made out any ground for interference. In the circumstances, I agree with the finding of facts recorded by the Tribunal. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, Judge. kcv.