Monisha vs Sajeev Kumar S/O. Damodharan Nair

T.R.Ravi, J

The daughter of the 2nd respondent has preferred this appeal. The appellant was injured in a motor accident, which occurred on 13.05.2012 while she was travelling in a car. The driver of the car lost control and the car capsized, resulting in injuries to the appellant. She was taken to the Medical College Hospital, Kozhikode, where she was treated as inpatient for 6 days. It is claimed the she had to continue treatment for a long period and had to suffer severe pain and hardships due to the accident and the treatment. The appellant's mother Smt.Vijayakumari was a co-passenger in the car and she had also suffered injuries. Smt.Vijayakumari had preferred O.P.(MV) No.590/2013 and the appellant had preferred O.P.(MV) No.949/2013.

The grievance of the appellant is that the Tribunal has by its award dated 25.11.2015 found that the appellant has failed to prove the accident and thus found her not entitled for any compensation. The reason stated in the award of the Tribunal is that in Ext.A3 charge sheet the name of the accused is seen to have been altered to that of the 2nd respondent, her father, instead of the driver Suresh and that the appellant did not adduce any evidence to clarify the change in the name of the driver Suresh to Radhakrishnan. Apart from that, there is no other reason stated for concluding that the appellant had not proved the accident.

Heard Sri A.V.M.Salahuddeen, learned counsel for the appellant and Sri R.Ajith Kumar, learned counsel for the 3rd respondent insurer.

In the appeal, the appellant has filed I.A.No.2/2021 seeking to produce the award dated 28.04.2016 in O.P.(MV) No.950/2013 preferred by her mother, in which the very same Tribunal has found that the accident had occurred and granted compensation to the appellant's mother. It is admitted by either side that the judgment in O.P.(MV) No.950/2013 has become final and the insurance company has not filed any appeal. In the above circumstances, the appellant prays that the award in O.P.(MV) No.949/2013 may be set aside and the appellant be compensated for the injuries suffered by her due to the accident.

I find considerable force in the arguments on behalf of the appellant. This is a case where no evidence had been let in by the 3rd respondent disputing the accident and the 3rd respondent has accepted the award in favour of the appellant's mother who was also injured in the very same accident. Ext.A3 final report clearly shows that the 2nd respondent is the accused and going by the dictum in New India Assurance Co.Ltd. v. Pazhaniammal reported in [(2011) 1 K.L.T 648] there is no requirement to go into the aspect of negligence any further.

In the above circumstances, this appeal is allowed. The award dated 25.11.2015 in O.P.(MV) No.949/2013 of the Principal Motor Accidents Claims Tribunal, Kozhikode is set aside. The case is remanded back to the Tribunal for fresh consideration of the claim petition. The Tribunal need not go into the question whether the accident has taken place, since the said aspect is already found in favour of the appellant. The remand is solely for the purpose of fixing the amount of compensation to be paid to the appellant. The Registry shall return the file to the Tribunal immediately. The parties shall appear before the Tribunal on 06.12.2021. The Tribunal shall pass fresh award within six months from 06.12.2021.