IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 MACA.No. 2374 of 2007(G) ----------------------- OPMV.1497/1997 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA .................... APPELLANT/PETITIONER: ----------------------------------- KRISHNAN, KONDODAYIL HOUSE, ELANJIMEL NORTH MURI, ENNAKKADU VILLAGE, CHENGANNUR TALUK, NOW RESIDING AT THUNDIPARAMBIL HOUSE, VALANJAVATTOM P.O. THIRUVALLA. BY ADV. SRI.N.ASHOK KUMAR RESPONDENTS : RESPONDENTS: --------------------------- 1. VARGHESE THOMAS, KURUMPOLIL HOUSE, ALA, CHENGANNUR. 2. MADHU, CHOPRAMANNIL HOUSE, ELANJIMEL SOUTH MURI, THONAKKADU, PULIYOOR VILLAGE, CHENGANNUR. 3. THE MANAGER, ORIENTAL INSURANCE CO. LTD., KAYAMKULAM. ADV. SRI.IYPE JOSEPH FOR R1 SRI.V.MANOJ KUMAR FOR R1 SRI.A.R.GEORGE FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ M.A.C.A No.2374 of 2007 ------------------------------------- Dated this the 14th day of January 2010 JUDGMENT BASANT, J. Claimant is the appellant. This claim for compensation was dismissed by the court below taking the view that the allegations in the petition are inconsistent with the real manner in which the accident had taken place. This is revealed convincingly from the alleged cause narrated to the doctor by the claimant in Ext.A7 wound certificate, which is proved satisfactorily in the case. The allegation in Ext.A7 was that the appellant had suffered the injuries while he was loading articles in a tempo van. According to the statement in Ext.A7 to the doctor, when the rope broke, the appellant had fallen down. The court below took the view that inasmuch as there is no allegation of negligence validly raised, the claim is not liable to succeed. 2. We have heard arguments on both sides. After discussions at the bar, the learned counsel for the appellant submits that if not on the basis of tortious liability, the appellant is at any rate entitled to compensation under the Workmen's Compensation Act and the insurer cannot dispute the liability for M.A.C.A No.2374 of 2007 2 payment of compensation for loading and unloading workers engaged for loading articles in the vehicles. The court below should at least have considered the claim under Section 167 of the Motor Vehicles Act and awarded at least the compensation payable under the Workmen's Compensation Act. 3. Called upon to substantiate the claim for compensation under the Workmen's Compensation Act, the learned counsel for the appellant submits that the matter may be remanded to give the appellant an opportunity to adduce proper evidence, as at the moment there is no satisfactory evidence adduced to prove that there has been permanent physical disability and consequent reduction in earning capacity. 4. We feel that the appellant is entitled to compassion, notwithstanding the fact that apparently unacceptable version appears to have been advanced in the claim petition. But that cannot take away his right to claim amounts which, on the finding recorded by the Tribunal, he may be entitled to. In this view of the matter, we are persuaded to agree that the request for remand can be accepted. 5. In the result: a) This M.A.C.Appeal is allowed in part; M.A.C.A No.2374 of 2007 3 b) Accepting the request of the learned counsel for the appellant, the dismissal of the claim petition is set aside and the Tribunal is directed to dispose of the O.P afresh in accordance with law after giving the parties opportunity to adduce appropriate evidence. The parties shall be given opportunity to amend their pleadings also at the discretion of the court below; c) Parties are directed to appear before the Tribunal on 15.02.2010. 6. The Registry shall forthwith forward the records to the Tribunal. We direct the Tribunal to dispose of the matter afresh as expeditiously as possible - at any rate, within a further period of 4 months from 15.02.2010. We say so, because the accident in the instant case, we note, had taken place as early as on 15.01.1997. 7. Compliance shall be reported to this Court. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-