A. K. Shaji v. Shameer and United India Insurance Company Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA, 1945 ``` ## **`MACA NO. 755 OF 2012`** ``` AGAINST THE AWARD DATED 26.03.2011 IN OP(MV) 3148/2004 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM`** ## **`APPELLANT/PETITIONER:`** ``` A.K.SHAJI AGED 33 YEARS S/O.KUNJU MOHAMMED, PALLIPARAMBIL VEETIL, MARAKKADAVU, MATTANCHERRY, COCHIN-2. ``` ``` BY ADVS. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1M.SHAMEER S/O.MAMMICHA, VII/788, KALLARACKAL VEETTIL, CHAKKAMADOM, MATTANCHERRY, COCHIN-682 002. 2UNITED INDIA INSURANCE COMPANY LTD. “SHARANYA”, HOSPITAL ROAD, COCHIN-682 011. BY ADVS. SRI.A.N.PREMLAL SRI.K.SANDESH RAJA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 755 OF 2012 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V.) No.3148/2004 on the files of the Motor Accident Claims Tribunal, Ernakulam. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 10.04.2004. 2. According to the appellant, the accident occurred when the motorcycle on which he was pillion riding had gone through the rubble stored along the side of the road, and it overturned, as a result of which, the appellant fell down, resulting in injuries to him. According to him, he was 25 years old at the time of the accident. He was an employee with a monthly income of Rs.3,500/-. He sustained injuries in the accident and the claim petition was submitted in such circumstances. 3. The respondents in this case remained ex parte. The evidence in this case consists of Exts.A1 to A8 from the side of the appellant. After the trial, the Tribunal came to the conclusion that, the appellant failed to prove that he sustained injuries in the motor accident as claimed in the claim petition. Therefore, the ``` MACA NO. 755 OF 2012 ``` ``` 3 ``` claim petition was dismissed. This appeal is submitted by the appellant, challenging the dismissal of the claim petition. 4. Heard Smt.Manju M., the learned counsel appearing for the appellant and Sri.K.Sandesh Raja, the learned counsel appearing for the 2nd respondent Insurance Company. 5. The main challenge in this case is against the finding of the Tribunal dismissing the application. On going through the observations made in the award, it can be seen that the Tribunal mainly relied upon the delay of five days in registering the FIR and certain discrepancies in the medical records regarding the injuries. However, the crucial aspect to be noticed is that the police, even though belatedly, registered an FIR, which is produced as Ext.A1, by recording Ext.A2 First Information Statement, while the appellant was undergoing treatment in Gautham Hospital, Kochi. In Ext.A2 First Information Statement, the appellant explained the reason for the delay in registering the FIR. According to him, he was under the impression that the hospital authorities had given the intimation of the accident. Ext.A6 is the wound certificate issued by the Gautham Hospital. It is seen that the appellant was ``` MACA NO. 755 OF 2012 ``` ``` 4 ``` brought to the hospital at 1.30 p.m. on 10.04.2004, whereas the accident occurred at 1 p.m. on the same day. Thus, it is evident that the appellant was brought to the hospital immediately after the accident, and the cause of injury recorded in the wound certificate is RTA – fall from a bike at Marakkadavu. After completing the investigation, the police also submitted an Ext.A4 final report against the rider of the motorcycle. In **New India Insurance Company Ltd. v. Pazhaniyammal and others** [2011 (3) KLT 648], a Division Bench of this Court categorically held that, in the absence of any contra evidence, the conclusion arrived by the Police in the investigation conducted in the crime registered in connection with the accident could be accepted as a prima facie evidence. In this case, Ext.A1, A2 and A4 would indicate that the Police have conducted an investigation, and it culminated in filing a charge sheet, implicating the 1st respondent, the rider of the motorcycle, as the accused. The claim was not contested by any of the respondents, and therefore, there was no contra evidence as well. Taking note of the injuries and the cause of such injuries as recorded in Ext.A6 wound certificate, which ``` MACA NO. 755 OF 2012 ``` ``` 5 ``` was prepared immediately after the accident coupled with the Police records, it can be safely concluded that the appellant sustained injuries in the accident. Therefore, the observations made by the Tribunal, were not at all sustainable. Thus, after considering the materials placed on record in the light of the observations made in **Pazhaniyammal’s** case (cited supra), I am of the view that the only conclusion possible is that the accident occurred due to the negligence on the part of the 1st respondent rider. In such circumstances, the finding of the Tribunal, holding that the appellant failed to prove that he sustained injuries in the accident, is set aside. The 1st respondent is held liable to pay the compensation, and being the insurer, the 2nd respondent is liable to indemnify the 1st respondent. 6. As this is a case of dismissal, the quantification of the compensation was not done by the Tribunal. However, since this is a claim of 2004, I do not propose to remand the matter back to the Tribunal for adjudicating the quantum of compensation and instead, I proceed to adjudicate the said claim as well. 7. It is seen from the records that the appellant claimed ``` MACA NO. 755 OF 2012 ``` ``` 6 ``` to be a worker in a printing press with a monthly income of Rs.3,500/-. As the accident occurred in the year 2004, the aforesaid monthly income appears to be reasonable and, therefore, the same is acceptable. From Ext.A7 discharge summary, it can be seen that, he had availed inpatient treatment for a period of five days. The injuries he sustained are mentioned as posterior dislocation of the hip, fracture, and posterior tip of the acetabulum. Considering the nature of the injuries and the possible impact of the same on his avocation as an employee in a printing press, he must have been prevented from pursuing his employment for at least a period of two months. This is particularly because, as hip dislocation is specifically noted in the medical records, he must have taken rest for such a period. Therefore, compensation for loss of earnings is fixed as Rs.7,000/-. The appellant produced Ext.A8 series medical bills for a total amount of Rs.8,940/-. Considering the period of hospitalization, the nature of injuries suffered by him, etc., I find that the said amount is reasonable, and the same is awarded. Considering the nature of the injuries, and the period of inpatient treatment undergone, a ``` MACA NO. 755 OF 2012 ``` ``` 7 ``` sum of Rs.20,000/- is granted towards pain and suffering. Taking note of the impact of the same, a further Rs.10,000/- is granted towards the loss of amenities. Thus, the compensation is worked out in the following manner: |Head|Amount(Rs.)| |---|---| |Loss of income|7,000/-| |Damage to clothing|500/-| |Transportation|1,000/-| |Extra Nourishment|1,000/-| |Attendant Expenses|500/-| |Medical Expenses|8,940/-| |Pain and suffering|20,000/-| |Loss of amenities|10,000/-| |Total|48940/-| Thus, in the light of the aforesaid observations and findings, this appeal is allowed. The award passed by the Motor Accident Claims Tribunal, Ernakulam, in OP(MV) 3148/2004 on 26.03.2011, dismissing the claim petition is set aside. The claim petition is allowed by holding that the accident occurred due to the negligence on the part of the 1st respondent in riding the motorcycle, and being the insurer, the 2nd respondent is held liable to pay the compensation. The quantum of compensation is ``` MACA NO. 755 OF 2012 ``` ``` 8 ``` fixed as Rs.48,490/- and the said amount shall be deposited by the 2nd respondent with interest @ 8% per annum from the date of petition till realization with proportionate costs. The amount shall be deposited within a period of three months from the date of a receipt of a copy of this judgment. It is further clarified that the claimant shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ordered above, within period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the same amount before the Tribunal. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs