IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 OP (MACT).No. 839 of 2011(O) ---------------------------- OPMV.1402/2010 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... PETITIONER ------------------- SIDHARTHAN, S/O. VELAYUDHAN, AGED 47 YEARS, THEKKE PARAKKAL HOUSE, P.O.GURUVAYOORAPPAN COLLEGE, IRINGALLOOR, KOZHIKODE. BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENT(S): ----------------------- 1. SULAIMAN, S/O. YUSUF,KP 7/127A, KOYAPPARA HOUSE, KUNHIMANGALAM, KANNUR DISTRICT. PIN-670309. 2. MUHAMMED SHAMSEER, S/O. MOIDU, K.P.HOUSE, P.O.EZHILODE, VIA KUNHIMANGALAM, KANNUR DISTRICT-670309. 3. UNITED INDIA INSURANCE COMPANY LIMITED, P.B.NO.29, TEMPLE ROAD, SOUTH BAZAR, PAYYANNUR-670307. BY ADV. SRI.VINOD VALLIKAPPAN FOR R1 THIS OP (MACT) HAVING BEEN FINALLY HEARD ON 01/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN O.P.(MAC) No.839 of 2011 EXT.P1 TRUE COPY OF CLAIM PETITION IN OP (MV) 1402 OF 2010 PENDING BEFORE M.A.C.T., KOZHIKODE. EXT.P2 TRUE COPY OF WRITTEN STATEMENT IN O.P. (MV) 1402 OF 2010 PNDING BEFORE MACT, KOZHIKODE. EXT.P3 TRUE COPY OF WOUND CERTIFICATE DATED 19.6.2010 EXT.P4 TRUE COPY OF DISCHARGE CARD ISSUED TO THE PETITIONER. EXT.P5 TRUE COPY OF AFFIDAVIT & PETITION IN I.A.573 OF 2011 IN O.P.(M.V.) NO.1402 OF 2010 EXT.P6 TRUE COPY OF TYPEWRITTEN ORDER IN I.A.NO.573 OF 2011 IN O.P. (MV) 1402 OF 2010 DATED 25.2.2011 OF M.A.C.T., KOZHIKODE. //TRUE COPY// P.A. TO JUDGE. P.N. RAVINDRAN, J. ------------------------------- O.P. (MAC) No. 839 of 2011 ------------------------------- Dated this the 1st day of June, 2011 J U D G M E N T The petitioner is the claimant in O.P.(M.V.) No.1402 of 2010 on the file of the Motor Accidents Claims Tribunal, Kozhikode. The said claim petition was filed claiming the sum of Rs.1 lakh as compensation for the injuries sustained by the petitioner in a motor accident involving a motor car belonging to the first respondent herein, driven by the second respondent and insured with the third respondent. It is stated that in that accident the petitioner suffered open fracture of the left Tibia, besides other injuries. Though respondents 1 and 2, the owner and driver of the motor car were served, they did not enter appearance and file written statement in the Tribunal. The third respondent filed a written statement raising various contentions including the contention that the accident occurred since the claimant suddenly crossed the road without obeying the rules and that he had consumed alcohol at the relevant time. 2. The claim petition was filed in the month of September, 2010. Shortly thereafter on 1.1.2011, the petitioner filed I.A.No.573 of 2011 under rule 387 of the Kerala Motor Vehicle Rules for an order directing his examination by a medical board for the purpose of assessing his disability. By Ext.P6 order passed on 25.2.2011, the O.P.(MAC) No.839 of 2011 2 Motor Accidents Claims Tribunal dismissed the application on the ground that in the wound certificate issued by the Doctor who had treated the petitioner it is stated that there was smell of alcohol present continuously in his breath. Hence this writ petition challenging Ext.P6 and seeking the following reliefs:- i) Issue an order or direction to call for the records leading to Ext.P6 order. ii) Issue an order to set aside Ext.P6 order of the M.A.C.T. Kozhikode in O.P.(M.V.) 1402/2010. iii) Issue appropriate order allowing Ext.P5 petition thereby referring the petitioner to Medical Board Or in the alternative iv) Issue appropriate direction to M.A.C.T., Kozhikode to consider and pass orders in I.A.573/2011 in O.P.(MV) 1402 of 2010 afresh untrammeled by any finding to the contrary. 3. The main contention raised by the petitioner is that the contention raised by the third respondent in written statement that the petitioner had consumed alcohol at the time of the accident is a matter which has to be proved in evidence and that examination of the claimant by the medical board for the purpose of assessing his disability should not have been declined merely for that reason. 4. I heard Smt.Latha Prabhakaran, learned counsel appearing for the petitioner and Sri.Vinod Vallikappan, learned counsel appearing for the first respondent. Though respondents 2 O.P.(MAC) No.839 of 2011 3 and 3 have been served, they have not chosen to enter appearance through counsel. The order impugned in the writ petition reads as follows:- Petitioner is present. It is found that in his wound certificate the doctor remarked that smell of alcohol was present in his breath at the time of his examination. The learned counsel for R3 disputed that the accident was an outcome of the latches due to the intoxication. In the said circumstances, I am not inclined to refer the case under 387 of M.V.Act. So dismissed. Post on 1-3-2011 for evidence. Ext.P3 produced along with the writ petition is a copy of the Accident Register cum Wound Certificate referred to and relied on by the Motor Accidents Claims Tribunal. In Column 10 thereof, it is stated that there was smell of alcohol continuously present in breath. It was relying on the said entry in the medical certificate and the contention raised by the learned counsel for the insurer that the Motor Accidents Claims Tribunal dismissed the application filed by the petitioner for his examination by a medical board. The purpose of examination of the claimant by the medical board in terms of rule 387 of the Kerala Motor Vehicles Rules is assessing the degree and extent of the disability, if any, sustained by the claimant as a result of the accident. The question whether the accident took place as a result of the negligence O.P.(MAC) No.839 of 2011 4 of the claimant himself is a matter to be decided based on the evidence on record. If there is clinching evidence to prove the fact that the claimant himself was negligent, then notwithstanding the fact that he sustained injuries in the accident and was consequently disabled will not stand in the way of the Tribunal from rejecting the claim petition on the merits. I am therefore satisfied that the reason given by the Tribunal for dismissing I.A.No.573 of 2011 cannot be sustained. I accordingly allow the writ petition, set aside Ext.P6 and direct the Motor Accidents Claims Tribunal, Kozhikode to consider I.A.No.573 of 2011 afresh and pass orders thereon expeditiously and in any event within two months from the date of production of a certified copy of this judgment. P.N. RAVINDRAN, JUDGE. nj.