# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
**THE HONOURABLE MR.JUSTICE C.S.DIAS**
**FRIDAY, THE 23[RD] DAY OF JULY 2021 / 1ST SRAVANA, 1943**
**MACA NO. 1328 OF 2009**
**AGAINST THE ORDER/JUDGMENT IN OP(MV) 1196/2002 OF PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL,KOZHIKODE DATD 8TH DAY OF JULY, 2008 APPELLANT/PETITIONER IN THE O.P.(MV):**
T.J. DAVID, S/O.JOHN, AGED 42 YEARS, THERIPARAMBIL HOUSE, MALAPPARAMBU POST, KOZHIKODE. BY ADV SRI.K.M.JAMALUDHEEN
## **RESPONDENTS/RESPONDENTS IN THE OP(MV):**
1 SM/S. .V.T.M. CARRIERS, PROP.B.SYAMKUMAR, BUS STAND ROAD, ANOLEPALLI, VISAKAPATNAM. 2 C.K.PACKARKUTTY, S/O.AHAMMED HAJI, CHUNDAKUNNUMMAL HOUSE, THAMARASSERY POST, KOZHIKODE. 3 THE NATIONAL INSURANCE CO.LTD (INSURER OF BOTH VEHICLES), (1)BRANCH OFFICE, G.T.ROAD, CHILONG. (2)DIVISIONAL OFFICE P.B.NO.811, NEAR COMPLEX, MAVOOR ROAD, NR. ARAYIDATHPALAM, KOZHIKODE. BY ADVS. SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR.
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **JUDGMENT**
The appellant was the petitioner in OP(MV) No.1196 of 2002 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The respondents in the appeal were the respondents before the Tribunal.
2. The concise facts, relevant for the determination of the appeal are: on 20.12.2001, while the appellant was travelling on a motorcycle along the Waynad road, a tanker lorry bearing Reg.No.KL-7/AB 6600, filled with ammonia, collided with another lorry bearing Reg.No.KL-C-8604. As a result of the collision, ammonia leaked from the tanker lorry. The appellant inhaled the ammonia and suffered a severe cardiac problem. Both the vehicles were driven by the drivers in a rash and negligent manner. The appellant was taken to the Medical College Hospital, Kozhikode and subsequently shifted to the Baby Memorial Hospital,
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Calicut. Thereafter, he was taken to the Amrita Institute of Medical Science and Research Centre, Elamakkara, where he continued treatment. The injuries sustained by the appellant was due to the omissions on the part of the drivers of the vehicles. The 1[st] respondent was the owner of the tanker lorry and the 2[nd] respondent was the owner of the other lorry and the 3[rd] respondent was the insurer of both the vehicles. The appellant claimed that the respondents were jointly and severally liable to pay him compensation, which he quantified at Rs.5,60,000/-, but limited to Rs.3,00,000/-.
3. The respondents 1 and 2 did not contest the proceedings.
4. The 3[rd] respondent – insurer of both the vehicles filed a written statement, refuting the allegations in the claim petition. It was contended that the appellant had not furnished the registration details of the motorcycle
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on which he was travelling or the time and occurrence of the accident. Even as per the averments in the claim petition, the appellant was only a passerby. Therefore, the 3[rd] respondent is not at all liable to pay compensation to the appellant. The allegation that the appellant sustained cardiac problem due to the inhalation of the ammonia was denied. The 3[rd] respondent prayed that the claim petition be dismissed.
5. The appellant got himself examined as PW1 and marked Exts.A1 to A4 in evidence.
6. The Tribunal, after analysing the pleadings and materials on record, dismissed the claim petition holding that the appellant had failed to prove that he had sustained injuries as a result of the accident as alleged in the claim petition.
7. Aggrieved by the dismissal, the petitioner is in appeal.
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8. Heard, Sri.K.M.Jamaludheen, the learned Counsel appearing for the appellant/petitioner and Sri. Mathew Jacob, the learned Senior Counsel appearing for the 3[rd] respondent.
9. Sri.K.M.Jmaludheen argued that the Tribunal has dismissed the claim petition for the main reason that there was a discrepancy in the timing shown in Ext.A2 wound certificate. The Tribunal has adopted every hyper technical stand in dismissing the claim petition which is erroneous and is liable to be set aside. Even though, the appellant had filed an application to get disability assessed by the medical board, the Tribunal without passing any orders on the same dismissed the application. The Tribunal has arrived at the conclusion that the appellant had not sustained injuries as a result of the accident mainly for the reason that the time shown in Ext.A2 Wound Certificate was 7.45 p.m on 20.12.2001,
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i.e., after about 18 hours after the accident. Therefore, the version of the appellant was disbelieved by the Tribunal. The appellant may be granted one more opportunity to substantiate his case before the Tribunal for which the appeal may be allowed by way of remand.
10. The learned counsel appearing for the appellant relied on the decision in _**Shivaji Dayanu Patil and another v. Vatschala Uttam and another (1991 ACJ 777)**_ to drive home his contentions that there is no necessity that the accident need be caused as a use of a motor vehicle; which has a wider connotation and covers accidents which occur when the vehicles are in motion or stationary and further that there only need be a casual connection between the accident and the injury that has occurred.
11. Sri.Mathew Jacob, the learned Senior Counsel appearing for the 3[rd] respondent supported the impugned
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award passed by the Tribunal. He strenuously argued that the Tribunal has analysed the pleadings and materials on record and rightly arrived at the conclusion that the alleged injuries shown in Ext.A2 namely; myocardial infarction (Thrombolysed) was not caused due to inhalation of ammonia as alleged in the claim petition. Moreover, the appellant has not proved that the injuries he sustained was as a result of the accident between the two vehicles. Hence, the appeal is only to be dismissed.
12. The question that arises for consideration in this appeal is whether the impugned award passed by the Tribunal is legally sustainable or not.
13. The Tribunal had formulated two issues for consideration namely; (i) whether the accident was due to the rash and negligent driving of the tanker lorry and
(ii) whether the appellant is entitled to get compensation,
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if so, what was the quantum.
14. The appellant had categorically pleaded in the claim petition that on 20.12.2001, he was travelling in a motorcycle along the Waynad road, a tanker lorry collided with a lorry at Eranhipalam junction, and as a result of which ammonia filled in the tanker lorry leaked out, which he had inhaled and he suffered a severe cardiac problem.
15. The registration number of the motorcycle on which the appellant was travelling, the time at which the appellant passed through the area where the collision took place, who took him to the Medical College Hospital etc. are all conspicuously absent in the claim petition. The appellant had produced Ext.A1 FIR registered by the City Traffic Police, Kozhikode, on the basis of the information given by one Mohammed who had stated to the Police that while the lorry was proceeding to
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Kozhikode from Kalpetta and reached Eranhipalam junction, the tanker lorry loaded with ammonia came in a rash and negligent manner and hit the lorry. The drivers of both the vehicles died in the accident. The informant had no direct knowledge regarding the accident, but had given the information as gathered from the area.
16. The appellant who gave evidence as PW1 deposed that he was taken to the hospital by his brother Martin, which is reflected in Ext.A2 wound certificate. The appellant did not bother to examine Martin, or produce the final report filed by the Police before the jurisdictional Magistrate. Moreover, in Ext.A2 wound certificate, the appellant is seen taken to hospital at 7.45 p.m on 20.12.2001, i.e., nearly after 18 hours after the accident.
17. The learned counsel for the appellant submitted that the time shown in the wound certificate is a mistake
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and it should be read as 7.45 a.m. Even assuming the time is 7.45 am, it is hard to believe that a person who had got suffocated after inhaling ammonia was taken to hospital only after 6 hours after the accident. There is no explanation why the appellant failed to examine his brother, who had allegedly taken him to the hospital, who was the best witness and could have very well explained the reason for the delay in taking the appellant to the hospital.
18. In view of the lack of sufficient materials and specific pleadings in the claim petition, I do not find any error or illegality in the findings arrived at by the Tribunal that the appellant has failed to prove that there was a reasonable nexus between the collision of the vehicles and the consequential injuries suffered by him, i.e., myocardial infarction. The Tribunal has analysed the pleadings and materials on record, particularly the oral
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testimony of PW1 in a threadbare manner and arrived at the conclusion that the appellant has failed to prove that the injury sustained by him was as a result of the collision between the two vehicles. Even going by the oral testimony of appellant (PW1), it is found that there are lot of inconsistencies and contradictory statements given by him from the pleadings. In fact, he has given his age as 75 years in the column containing the details, which has been reiterated by him in his chief examination. Whereas, in the claim petition, he has stated he was only 35 years of age.
19. On an over all analysis of the pleadings and materials on record, and the impugned award, I hold that there is no error or illegality in the Tribunal disbelieving the version put forward by the appellant. The appellant has failed to prove that he had sustained injuries as a result of the accident. It is settled law that unless and
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until the injured proves that he sustained injuries as a result of the negligence on the part of a driver of a vehicle, there is no question of awarding any compensation .
20 **.** The learned counsel for the appellant finally made a fervent plea that the appeal may be allowed by way of remand, to afford the appellant another opportunity to prove his case. In view of the mandate under Order 41 Rule 23A of the Code of Civil Procedure, that an order of remand shall not be permitted on the mere asking of a party unless there are cogent materials warranting a remand. The accident occurred in the year 2001 and it is more than two decades since the matter has been pending consideration. For want of materials, I do not find any reason or ground to allow the appeal by way of remand to afford the appellant another opportunity to contest the case, which would certainly
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cause severe hardship and prejudice to the respondents who have already had to undergo the turmoil of contesting the proceedings for the last two decades.
In the result, I hold that the appeal is devoid of any merits and consequentially dismiss the appeal.
Sd/-
**C.S.DIAS, JUDGE**
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