IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 MACA.No. 915 of 2004() ---------------------- OPMV.1064/2000 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR .................... APPELLANT:(PETITIONER) ---------------------------------- SASEENDRAN, AGED 47 YEARS, S/O.CHATHUNNI, JAWAHAR ROAD, PALISSERY VILLAGE, PALAKKAL, THRISSUR DISTRICT. BY ADV. SRI.K.A.SREEJITH RESPONDENTS/RESPONDENTS -------------------------- 1. K.SIVASANKARAN NAIR, S/O. VELAYUDHAN NAIR, VADAKKEDATH HOUSE, MEKKATTUKARA, NEDUMBASSERY, ALUVA, ERNAKULAM DISTRICT. 2. THE ORIENTAL INSURANCE COMPANY, PATTAMANA, BUILDING, R.S.ROAD, ALUVA. R2 BY ADV. SMT.A.SREEKALA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RKC R. BASANT & N.K.BALAKRISHNAN, JJ. ---------------------------------------------------- C.M.Appl.No.1342 of 2004 & M.A.C.A.No.915 of 2004 ---------------------------------------------------- Dated this the 5th day of July, 2011 ORDER/JUDGMENT This petition to condone the delay of 222 days in filing an appeal. We have heard the counsel. We have gone through the averments in the affidavit in support of the petition for condonation of delay. We are not satisfied that the delay deserves to be condoned. 2. However, in our anxiety to ensure that the rejection of the prayer for condonation of delay does not result in any miscarriage of justice. We requested the learned counsel for the appellant to explain the nature of challenge in the impugned award. 3. The learned counsel for the appellants submits that though the doctor have certified 18% to be the disability suffered, the Tribunal had only reckoned 8% as the reduction in earning capacity. This is the only ground of challenge raised. 4. The evidence available in the case suggests that the appellant has suffered fracture of the left shaft of the humerus, radial nerve palsy left side and dislocation of proximal IP joint of left index finger. M.A.C.A.No.915 of 2004 2 The doctor who issued Ext.A8 disability certificate had certified the physical disability to be 18%. The document was marked subject to proof. It was not proved proper link. Notwithstanding the absence of proof, the Tribunal taking into account the relevant records including nature of injuries and period of treatment and his employment, took the view that the disability can safely be reckoned at 8%. 5. It is argued that the said view taken by the Tribunal is incorrect. On the basis of the value of material, we find absolutely no reason to disagree with the Tribunal. The disability certificate Ext.A8 was marked subject to proof in spite of that the doctor who issued the same was not examined. We are, in these circumstances, satisfied that the impugned award does not warrant any interference and that the rejection of the prayer for condonation of delay will not result in any miscarriage of justice. 6. The learned counsel for the respondents submits that the matter may be remanded back to the court below, so that the appellant/claimant shall get an opportunity to examine the said doctor. Remand cannot be a matter of course. Sufficient reason must be shown M.A.C.A.No.915 of 2004 3 to exist to justify such a prayer for remand. When the document was marked subject to proof and claimant did not take steps to examine the doctor, such a claimant cannot be heard to claim a remand as a matter of course. We are not persuaded to agree that this matter deserves to be remanded. 7. This petition for condonation of delay is in these circumstances dismissed. The appeal shall also consequently stand dismissed. R.BASANT, JUDGE. N.K.BALAKRISHNAN, JUDGE. mns