IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 MACA.No. 103 of 2005() ---------------------- OPMV.245/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): APPELLANT/PETITIONER: ----------------------------------- XAVIER, S/O. VARGHESE, MATTATHIL HOUSE, AMBAZHACHAL KARA, VELLATHOOVAL, DEVIKULAM, IDUKKI. BY ADV. SRI.P.V.ELIAS SRI.P.S.SASISHARAN RESPONDENT(S): RESPONDENTS: --------------------------- 1. V.A.BENNY, S/O. VARKEY ALIAS, VALIAKAROTTU HOUSE, KEERAMPARA, KOTHAMANGALAM. 2. P.V.JOSE, S/O. VARKEY, PULICKAYATHU HOUSE, KEERAMPARA, KOTHAMANGALAM. 3. UNITED INDIA INSURANCE COMPANY LTD., MUVATTUPUZHA. ADV. SRI.R.S.KALKURA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & C. K. ABDUL REHIM, JJ. -------------------------------------------- M.A.C.A. No. 103 OF 2005 -------------------------------------------- Dated this the 15th day of July, 2009 JUDGMENT Ramachandran Nair, J. Appellant is the claimant before the Tribunal. The Claim Petition was filed with allegation that on 10.9.1998 at about 3.30 P.M. while he was travelling on the platform of a mini lorry, he sustained injuries when an iron sheet kept on the platform of the vehicle hit against his left leg, due to sudden braking of the vehicle. The appellant sustained fracture on both bones of the left leg. The third respondent-insurance company disputed the claim contending that no accident as alleged in the Claim Petition took place and the allegation that the claimant sustained injuries in the motor vehicle accident was false. Before the Tribunal the claimant was examined as PW1 and Exts. A1 to A22 documents were produced on behalf of him. The Tribunal found that in Ext.A5 certificate issued by the hospital wherein the appellant was treated at first revealed that the cause of injury noted therein is fall of an iron bar on the leg of the claimant. The said document is produced 2 by the claimant and the same is proved in evidence on behalf of him, but there is no explanation forth-coming in evidence with respect to the discrepancy of the medical record against the version put forth in the Claim Petition. The claimant deposed before the Tribunal that after the accident he was taken to the hospital in the same vehicle, but, at the same time it is deposed that he became unconscious immediately on sustaining injury to his leg. Even though it is claimed that there was a co-worker travelling along with the claimant on the platform of the lorry, such a person was not examined as a witness. The doctor who has issued Ext.A5 certificate was also not examined. The entire contention of the appellant is based on the FIR and final report in a case registered by the police. The Tribunal found that the case was registered after a period of more than a month of the alleged date of incident, that too, based on the complaint submitted by the mother of the claimant. On evaluating the entire facts and evidence on record, the Tribunal found that in all probability the claimant had sustained injury when the iron bar fell on his leg, which is the history given to the doctor, at the time of admitting the claimant. We do not find any 3 reason to interfere with the above said finding of the learned Tribunal rendered after considering the entire documentary and oral evidence adduced. Hence the appeal deserves no merit and the same is accordingly dismissed. It is made clear that dismissal of this appeal will not prejudice the right of the appellant if any available under the provisions of the Workmen's Compensation Act, to proceed against his employer. (C.N.RAMACHANDRAN NAIR) Judge. (C. K. ABDUL REHIM) Judge. kk 4