IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 MACA.No. 784 of 2009() -------------------------------- OPMV.461/1996 of II ADDL. M.A.C.T., KOZHIKODE .................... APPELLANT(S): APPELLANT/PETITIONER. ------------------------- M.LAKSHMI, AGED 62 YEARS, W/O.SHANMUGHAN, MADAMPARAMBATHU HOUSE, P.O.FEROKE COLLEGE, KOZHIKODE 673632. BY ADV. MR.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENT(S): RESPONDENTS. --------------------------- 1. P.K.GOPALAN NAIR, S/O.KRISHNA KURUP, MANJERIYIL HOUSE, CHERUVANNUR, MEPAYUR, KOILANDY, KOZHIKODE. 2. V.K.MOHAMMED KUTTY, S/O.MOHAMMED, CHEPPILAYITHAZHAM HOUSE, KADAMPUZHA P.O., FEROKE COLLEGE, KOZHIKODE-673 632. 3. THE UNITED INDIA INSURANCE CO LTD, MELE ROAD, VATAKARA. R3 BY ADV. SMT.R.REMA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... M.A.C.A.No.784 OF 2009 ............................................. Dated this the 15th day of December, 2009 J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Kozhikode in OP(MV)No.461/1996. The claimant sustained injuries in a road accident and she has been awarded a compensation of Rs.3,000/=and the insurance company is exonerated from the liability on the ground that respondents 1 and 2 did not produce relevant documents mentioned in para 3 of the written statement. 2. At the outset I find that the finding of the Tribunal that the insurance company is exonerated from the liability cannot stand scrutiny of law. The insurance company as usual in the written statement has contended that the vehiculor document, fitness certificate etc are not produced. Respondents 1 and 2 had chosen to remain ex parte. The Tribunal jumps to the conclusion that as R1 and R2 had not produced any document, the insurance company has to be exonerated from the liability. It is incorrect. The insurance company is claiming exoneration of liability for the reason : 2 : M.A.C.A.No.784 OF 2009 that there is breach of the policy conditions. When it pleads breach of the policy condition, the burden is on the company to prove the same and not on the claimant. The observation of the Tribunal that respondents 1 and 2 did not appear before the court cannot be a ground to negative the claim of the claimant. Nothing is before the Tribunal to prove the absence of driving licence or any breach of policy conditions. So, I have no hesitation to hold that the Tribunal had gone wrong in arriving at such a finding and therefore it is set aside and I hold that the insurance company has failed to prove the breach of the policy conditions and therefore it is liable. 3. Now coming to the question of quantum. The lady was aged 51 years at the time of the accident and she had a contusion on the chest and there was a suspected fracture of the radius. She was treated in the Medical College Hospital and later in the ESI Hospital where she had undergone some treatment from 31.5.1995 to 5.7.1995. The accident had taken place on 24.5.1995. The records of the ESI Hospital would reveal that she did not have any fracture of the ribs. Subsequent document of treatment is seen but : 3 : M.A.C.A.No.784 OF 2009 those documents are not in any way proved to be connected with the injury sustained in the accident. It appears that she had some lungs problem, spine problem etc and the nature of injury sustained in the accident has nothing to do with the same. But the OP ticket issued by the ESI hospital would reveal that she had complained of pain and there was some tenderness subsisting for a long time. So, taking into consideration those aspects, I am inclined to enhance the compensation by Rs.3,000/= more making a total compensation of Rs.6,000/=. 4. In the result, the MACA is allowed and a revised award is passed. The claimant is awarded a compensation of Rs.6,000/= with 7% interest on the said sum from the date of petition till realisation and the respondent insurance company is directed to pay the amount with cost of Rs.250/= incurred in the lower court. The insurance company shall deposit the said amount within a period of 60 days from the date of receipt of a copy of this judgment. Disposed of accordingly M.N. KRISHNAN, JUDGE cl : 4 : M.A.C.A.No.784 OF 2009