IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 MACA.No. 686 of 2009 ---------------------- ( OP(MV).410/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA) APPELLANT/ PETITIONER ------------------------ RAJAN, S/O.NARAYANAN, AGED 42 YEARS, KALLURUMPIL HOUSE, VELLAMTHANAM KARA, UDUMBANNOOR VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.T.V.GEORGE SMT.LINDA GEORGE SRI.JIMMY GEORGE (THADATHIL) SRI.K.N.BALACHANDRA KAIMAL RESPONDENTS/RESPONDENTS: ----------------------------------- 1. JOHN, S/O.MATHAI, PULIYATHOOR PUTHENPURAYIL, VELLAMTHANAM KARA, UDUMPANNOOR VILLAGE, THODUPUZHA TALUK. 2. JOSHY.C.J., S/O.JOHNY, CHETTIYAMPURATHU HOUSE, PANNOOR P.O., THODUPUZHA. 3. STALIN, S/O.GOPI, PAREKKAVIL HOUSE, THATTAKUZHA P.O., THODUPUZHA. 4. M/S.ORIENTAL INSURANCE COMPANY LTD., REPRESENTED BY ITS BRANCH MANAGER, JYOTHI SUPER BAZAR, THODUPUZHA. R4 BY ADV. SRI.V.P.K.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ............................................................................... M.A.C.A. No. 686 OF 2009 ......................................................................... Dated this the 15th December, 2009 J U D G M E N T P.R. Raman, J: Appellant is the claimant in O.P.(MV)NO.410 of 2005 on the file of the M.A.C.T., Thodupuzha. It is claimed that he is a toddy tapper (which is in dispute) with a monthly income of Rs. 5000/-. On 23.10.2004, while he was proceeding, in a motor cycle bearing No. KL-6B/6499, to Vellanthanam through Karimannoor- Thattakkuzha road, another motor cycle bearing registration No. KL I/8482 came from the opposite direction in a rash and negligent manner, hit against the vehicle ridden by the appellant and sustained injuries. He was treated in the Holy Family Hospital, Muthalakkodam and thereafter referred to the Chazhikkattu Hospital, Thodupuzha. Later he had undergone treatment in the Medical Mission Hospital, Kolencherry. Alleging M.A.C.A. No. 686 OF 2009 2 negligence on the rider of the motor cycle, which came from the opposite direction, as referred to above, he claimed an amount of Rs. Four lakhs by way of compensation. The first and second respondents remained ex parties, who are respectively the rider and owner of the motor cycle. The 4th respondent/Insurance Company filed written statement denying insurance policy of the motor cycle bearing registration No. KL I/8482. According to the 4th respondent, the aforesaid vehicle was insured in the name of the third respondent only for the period from 14.07.2004 till 13.07.2005; that the owner of that vehicle was the second respondent/Joshy and that at the relevant time of the accident, the second respondent had no insurance contract with the 4th respondent. The transfer of the ownership of the vehicle was not intimated to them. The act of the owner, permitting another person to ride the motor cycle itself amounted to violation of policy conditions and therefore they were not liable to indemnify him. It is also alleged that due to the negligence on the part of the appellant himself, the accident occurred. The 4th respondent also disputed the M.A.C.A. No. 686 OF 2009 3 quantum. The third respondent, though entered appearance did not file any written statement. 2. Issues were framed by the Tribunal and it found that the accident was due to the negligence on the part of the first respondent. The Tribunal then proceeded to quantify the compensation and awarded an amount of Rs. 1,73,265/- (rounded to Rs.1,73,300/-). In that process though 30% was certified as 'visual disability' by the doctor who issued Ext.A9 certificate, the Tribunal found that the doctor did not opine it to be due to the accident. Medical records, immeditaly after the accident, were not produced. In the circumstances, the Tribunal, based on Ext. A6 discharge summary, which showed that he had suffered head injury, fixed the disability at 15%. The income was taken as Rs.3000/- per month and compensation was worked out taking '13' as the multiplier and thus an amount of Rs.70,200/- was awarded towards 'disability'. Amounts under various other heads ( viz. towards loss of earning, transportation expenses, extra nourishment, by-stander expense, treatment expense, pain and suffering) were also awarded. 8% interest was also M.A.C.A. No. 686 OF 2009 4 awarded on the total amount of compensation. 3. The appellant is dissatisfied with the compensation. According to him, the amount awarded is on the lower side. He also pleads that the he is an illiterate person. He could not produce satisfactory evidence regarding proof of his age. Though an attempt was made to produce some documentary evidence to show his age, only copies of those certificates were produced. The petition to receive the additional documents being defective could not be sent up. However, in the view we are taking, it is not necessary for us to consider those additional documents. 4. According to the appellant, the age was taken as '53'; whereas his actual age at the time of the accident was only '44'. and the correct multiplier would be '15' in the place of '13' (as adopted by the Tribunal). He also submits that the disability percentage, as fixed by the court below is also on the lower side. But no steps were taken to examine the doctor. The appellant did not even choose to mount the box. 5. Therefore, this is a clear case where even in the M.A.C.A. No. 686 OF 2009 5 absence of such evidence, the Tribunal was considerate in awarding compensation. In the above background, the only course available to us is to dismiss the appeal. But the learned Counsel for the appellant sought for an opportunity to adduce better evidence in the case and to condone his conduct of not letting evidence at the appropriate time, when such opportunity was extended to him. It is settled law that an opportunity to adduce evidence could be granted only when it is shown that there was denial of such opportunity to adduce evidence. We find that such a situation is not present in this case. If we accede to the request without imposing any condition, that will certainly prejudice the right of a public authority, since, in case any enhanced compensation is awarded, interest will also be liable to be paid for all the period during which time, the case remained without adequate evidence. Therefore, to strike the balance and to prevent any such injustice to the other side, the proper course open is to give an opportunity to the appellant to adduce evidence, as requested by him, on condition that he will not be entitled for any interest on the enhanced compensation, if M.A.C.A. No. 686 OF 2009 6 any, is awarded pursuant to any order or award that may eventually be passed, based on the remand order from the date of the present award viz. from 29th October, 2008 till today, i.e. 15.12.2009. Subject to the above, we set aside the award in toto. The findings of the Tribunal are vacated and the matter is remitted to the Tribunal for fresh consideration, in accordance with law, with opportunity to both the sides to adduce evidence in support of their respective contentions. The parties shall appear before the court below on 22.02.2010. The appeal is allowed as above, by way of remand. P.R. RAMAN, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk