Ameer Puthuppallikunnam v. Reghuvaran Kaithackal; P. P. Mathai Puthenpurackal House Pazhoor, Piravam; United India Assurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 8[TH] DAY OF APRIL 2022 / 18TH CHAITHRA, 1944** **MACA NO. 189 OF 2010** **AGAINST THE AWARD IN OPMV 1842/1999 OF ADDITIONAL MOTOR** **ACCIDENTS CLAIMS TRIBUNAL, MAVELIKKARA** ## **APPELLANT/PETITIONER:** AMEER PUTHUPPALLIKUNNAM, CHARUMOODU P.O.,, MAVELIKKARA, ALAPUZHA DISTRICT. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.SURYA SASI ## **RESPONDENTS/RESPONDENTS:** 1 REGHUVARAN KAITHACKAL, PALLICKAL. 2 P.P.MATHAI PUTHENPURACKAL HOUSE PAZHOOR, PIRAVAM, ERNAKULAM. 3 UNITED INDIA ASSURANCE CO.LTD. REP. BY THE DIVISIONAL MANAGER,, KOTTAYAM. BY ADV SRI.V.JAYAPRADEEP FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2022, THE COURT ON 08.04.2022 DELIVERED THE FOLLOWING: M.A.C.A.No.189/2010 2 ## **M.R.ANITHA, J** ****************** M.A.C.A.No.189 of 2010 ------------------------------------------Dated this the 8[th] day of April, 2022 ## **JUDGMENT** This appeal has been filed against the award passed in O.P. (MV) No.1842 of 1999 on the file of Motor Accidents Claims Tribunal, Mavelikkara. The claim petition has been filed under Section 166 of the Motor Vehicles Act, 1988 for the injuries sustained by the appellant in a motor accident occurred on 03.12.1998 at4.30 p.m. while travelling in a stage carriage private bus bearing Reg.No.KL-7S/5052 at Kozhamathu Mukku. It is alleged that the accident occurred due to the rash and negligent driving of the first respondent, the driver of the bus. 2[nd] respondent is the owner of the bus and third respondent is the insurer. M.A.C.A.No.189/2010 3 2. Before the Tribunal respondents 1 and 2 remained ex parte. Third respondent filed written statement admitting the policy coverage with respect to the offending vehicle but denying the accident and injuries sustained to the appellant/claimant out of the alleged incident. The above case was tried along with O.P. (MV) No.1593/1999 and 1594/1999 and a common award was passed dismissing the above claim petition. 3. Aggrieved by the award passed by the Tribunal, appellant/claimant (hereinafter be referred as 'claimant') came up in appeal for the various grounds stated in the Memorandum of Appeal. 4. Service is complete against the 2[nd] respondent. Notice against the 1[st] respondent is dispensed with at the risk of the appellant.Third respondent appeared through Adv.V.Jayapradeep. Heard learned counsel for the appellant as well as the learned Standing Counsel for the third respondent/insurer. Lower court records were called for and perused. M.A.C.A.No.189/2010 4 5. It is not in dispute that Reg.No.KL-7S/5052 driven by the 1[st] respondent involved in an accident at Kozhamathu Mukku on 03.12.1998 at about 4.30 p.m. But, according to the 3[rd] respondent, the claimant has not sustained any injury out of the incident and he could not prove that he sustained injury out of that incident. It is also the contention of the respondent that all the victims who have sustained injury have been made as witnesses in the chargesheet which is produced as Ext.A4 but the name of the claimant is not there as injured in Ext.A4. So, this is a fake claim made by the claimant for grabbing money from the insurer. 6. Claimant in this case was examined as PW1. Exts.A1 to A14 marked altogether. 7. Tribunal, on evaluating the evidence and the rival contentions, found that there are only some medical records to prove the case of the claimants that they have sustained injuries out of this accident. Relying on medical records alone, it is not safe to enter into a finding that the claimant was also a M.A.C.A.No.189/2010 5 passenger in the bus involved in the accident and he sustained injury as a result of the accident. It is also found that no wound certificate has been produced and no explanation has been offered for the same. So, the Tribunal came to the conclusion that the claimant herein and claimants in other cases failed to prove that they have travelled in the bus and sustained injuries when the bus involved in the accident. Accordingly, their claim petition was dismissed assessing the total compensation due to the claimant in this case as Rs.5,200/- in total. 8. The fact that vehicle bearing Reg.No.KL-7S/5052 was involved in an accident on 03.12.1998 at 4.30 p.m at Kozhamathu Mukku is not in dispute. The only dispute of the third respondent is that the claimant has not sustained injury in the accident and that no wound certificate has been produced and the discharge summary produced also does not reveal the injury sustained. Further, the medical bills produced do not pertain to the relevant period to prove that those were issued in connection with the treatment undergone by the claimant for the M.A.C.A.No.189/2010 6 injury sustained in the accident. 9. It is true that claimant did not produce wound certificate but he was examined as PW1 and deposed about the injury sustained by him and produced copy of Ext.A1 F.I.R and F.I.S in connection with the crime registered with respect to the accident. Ext.A2 is the copy of the scene mahazar. Ext.A3 is the copy of AMVI report. Ext.A4 is the copy of the chargesheet. 10. As pointed out earlier, the accident is not in dispute. Whether the claimant sustained injury out of that accident is the crucial question for determination. Ext.A5 discharge certificate, Ext.A6 medical certificate and Ext.A8 series O.P tickets are also produced. Ext.A8 series O.P tickets were totally discarded by the Tribunal. It is true that none of the O.P tickets relates to the date of incident. Item No.4 is the O.P ticket dated 28.12.1998 which would show that he had consulted the Doctor at the Primary Health Centre, Venmani on complaint of body ache and head ache. Ext.A5 discharge card issued from Government Hospital, Mavelikara would go to show that he had been under treatment M.A.C.A.No.189/2010 7 in the hospital from 04.12.1998 to 12.12.1998 with an alleged history of RTA and certain details regarding medicines prescribed are described therein and Ext.A7 is a certificate issued by Orthopaedic Surgeon, Government Hospital, Mavelikara dated 30.09.1999 certifying that the petitioner had been undergoing treatment as in-patient from 04.12.1998 to 12.12.1998 following an RTA and it is certified that he has traumatic myalgia and he was undergoing treatment at the local hospital. 11. Ext.A6 is medical certificate issued by Orthopaedic Surgeon, Government Hospital, Mavelikara certifying that, the patient was suffering from traumatic myalgia and a period of absence from duty of 9 days from 04.12.1998 is necessary. Accident in this case was on 03.12.1998. From the immediate next day onwards claimant had been undergoing treatment for traumatic Myalgia. The fact that he did not go to the hospital on the same day itself or that wound certificate has not been produced etc. are alone not sufficient to conclude that he has not sustained injuries out of accident or to discard Exts.A7 and A6 M.A.C.A.No.189/2010 8 certificates of Orthopedic Surgeon. In **N.K.V.Brothers (P) Ltd. V.M.Karunamayi Ammal and others : AIR 1980 SC 1354** Apex Court while dealing with Section 110B and 110C of the Motor Vehicles Act, 1939 it was held that Motor Accidents Claims Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability only because of some doubt here or some obscurity there. It is also held that court should not succumb to niceties, technicalities and maybes. 12. In this case, PW1, the claimant has been examined and has deposed about the accident and injury sustained by him. But, the Tribunal was of the view that only the petitioner in O.P.(MV) No.1842/1999 was examined and inspite of the fact that third respondent denied the accident, no attempt was made by the petitioner to examine any independent witnesses. But, the Tribunal has not appreciated the fact as to whether the evidence of PW1/the claimant is acceptable or not. On going through the evidence of PW1, it M.A.C.A.No.189/2010 9 can be seen that he categorically deposed about the accident and injuries sustained and produced the medical records. The fact that wound certificate has not been produced will not suggest that the petitioner has not sustained any injury out of the accident, especially in view of the medical records Exts.A5, A6 and A7 produced from the side of claimant. I also find no reason why these Doctors attached to Government Hospital should manipulate these documents and issue discharge card and treatment certificate as well as medical certificate certifying that the claimant has undergone in-patient treatment from 04.12.1998 to 12.12.1998 for traumatic myalgia. Since the injury sustained is only traumatic myalgia, when pain started on the immediate next day of the accident he might have gone to the hospital for treatment but the fact that he did not consulted the Doctor on the same day itself is not material since the injury sustained is also very minor. So, the oral evidence of PW1 and Exts.A5, A6 and A7 would establish the case of the claimant that he sustained injury out of the road traffic accident occurred on M.A.C.A.No.189/2010 10 03.12.1998. The fact that his name was not there in the police chargesheet as an injured or as a witness by itself is also not sufficient to discard the oral evidence of PW1 and the documents produced by him to show that he sustained injury out of the incident. 13. Ext.A1 F.I.R and F.I.S, Ext.A2 scene mahazar, Ext.A3 A.M.V.I report and Ext.A4 copy of the chargesheet would prima facie prove the accident occurred on 03.12.1998. Moreover, the fact that the accident happened on 03.12.1998 is not in dispute and the rash and negligent driving of the second respondent is also not disputed but the only challenge was about the injury sustained by the claimant in this accident. Since there is no challenge as such with respect to the rashness and negligence on the part of the first respondent, no finding as such has been entered into by the Tribunal in this regard. However, as stated earlier, the police chargesheet and other records would prima facie prove that the first respondent is responsible for the accident ( **Puttamma & Others v. K.l. Narayana Reddy &** M.A.C.A.No.189/2010 11 **Another (2013 (15) SCC 45)** . So, the second respondent being the owner of the vehicle is vicariously liable for the act of the 1[st] respondent and the third respondent insurer is liable to indemnify the second respondent as per the contract of insurance. 14. With respect to the quantum of compensation awarded, there is no serious challenge. The amount awarded is only Rs.4,000/- towards pain and suffering, Rs.100/- towards purchase of medicines, Rs.400/- towards extra nourishment, Rs.400/- towards transport to hospital and Rs.300/- towards damage to clothing. So, the amount of Rs.5,200/- arrived at by the Tribunal towards total compensation is quite reasonable and no interference is called for in that regard. 15. In the result, the appeal allowed setting aside the award passed in O.P.(MV) No.1842/1999 and the claimant is allowed to realise Rs.5,200/- with interest @ 7.5% from the date of petition i.e. 23.12.1999 till realisation. The third respondent/insurer is directed to pay the compensation granted 12 M.A.C.A.No.189/2010 in this appeal, together with interest, within a period of two months from the date of receipt of certified copy of this judgment. Appellant/claimant shall provide his Bank Account details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, within one month from the date of receipt of a certified copy of this judgment. (sd/-) ## **M.R.ANITHA, JUDGE** jsr True Copy ## P.S. To Judge