BABU @ BABURAJ v. Shinekumar and The Divisional Manager, New India Assurance Co. Ltd

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ``` MONDAY, THE 4[TH] DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945 ``` ## **`MACA NO. 1629 OF 2013`** ``` AGAINST THE AWARD DATED 21.02.2013 IN O.P(M.V)NO.439/2005 OF MOTOR ``` ``` ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA ``` ## **`APPELLANT/APPLICANT:`** ``` BABU @ BABURAJ, AGED 43 YEARS, S/O.NESON, ARUN BHAVAN, MITHRANIKETHAN,VELLANADU.P.O. ``` ``` BY ADV SRI.T.RAJASEKHARAN NAIR ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SHINEKUMAR, MELEMUKAL VEEDU, 107/9, KUNNANAKUZHI, PANAVOOR, THIRUVANANTHAPURAM DISTRICT, PIN-695568. 2THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO.LTD, THIRUVANANTHAPURAM -695001. BY ADVS. R2 BY SRI.LAL K.JOSEPH ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR HEARING ON 04.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1629 OF 2013 ``` ``` 2 ``` ## **J U D G M E N T** ## **Dated this the 4[th] day of December, 2023** The appeal on hand is originated from an award passed by Motor Accidents Claims Tribunal, Neyyattinkara (for short ‘the Tribunal’) on 21.02.2013 in O.P(M.V)No.439/2005. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as petitioner and respondents 1 to 3 in accordance with their status in the Original Petition. 3. The appellant is the petitioner before the Tribunal. The grievance of the petitioner is that the Original Petition filed as above seeking for compensation was dismissed by the Tribunal for the reason that the petitioner failed to prove that he had sustained injuries in the motor accident occurred on 21.11.2004. It is contended by the learned counsel that the Tribunal has gone wrong in arriving at such a finding. He has cited several reasons for substantiating his claim. According to him, the motor accident was occurred on ``` MACA NO. 1629 OF 2013 ``` ``` 3 ``` 21.11.2004 and a crime was registered belatedly, after 15 days. A final report was submitted by the police chargesheeting the driver of the autorickshaw allegedly involved in the motor accident. According to him, the injuries were caused to the petitioner when the autorickshaw in which he was travelling was capsized at a place called Kidangummala. According to him, the motor accident was occurred due to the rash and negligent driving of the autorickshaw by its driver. The driver of the autorickshaw was chargesheeted by the police, after the investigation, for rash and negligent driving. It is contended by the learned counsel that when a final report is available chargesheeting the driver of the autorickshaw, the Tribunal ought to have found that the injuries were sustained by the petitioner in a motor accident involving the autorickshaw and due to rash and negligent driving by its driver who was chargesheeted. The learned counsel for the petiitoner also urged on the basis of Exts.A6 and A7, which are treatment certificates, Ext.A8 Causality Card, Ext.A9 referral O.P card, Ext.A11 Audiogram Report and Ext.A12 and A13 which are referral OP Cards, ``` MACA NO. 1629 OF 2013 ``` ``` 4 ``` that the petitioner has established the injuries sustained by him in the motor accident and also the treatment undergone by him. Therefore it was canvassed by the learned counsel that the Tribunal ought to have arrived at a conclusion that the petitioner had sustained injuries in a motor accident that was caused due to the rash and negligent driving by the driver of the autorickshaw bearing Registration No. KL-01-S155 and ought to have granted compensation in his favour. 4. Though the respondents were served with notice, none turned up to argue the matter. 5. The reasoning of the Tribunal, as contained in paragraph No. 8, while dismissing the Original Petition is extracted hereinbelow:- “…….The applicant herein is one Babu @ Baburaj. In the context of the contention that applicant did not sustain injuries out of the alleged accident, by way of abundant caution, satisfactory evidence ought to have been' produced by the applicant to show that applicant named Babu @ Baburaj and the patient named Babu in the medical evidence are one and the same and the injuries were sustained to him in the said road traffic accident. It is to be noted that in Ext. A2 also the name of the injured is shown as Babu @ Baburaj, S/o. Nesan. In Ext. A2, the name of the doctor who had treated the injured was Dr. S. Biju, Lecturer in Ortho, Medical College Hospital Thiruvananthapuram. He ``` MACA NO. 1629 OF 2013 ``` ``` 5 ``` is the CW8 in Ext. A2 cited to prove the treatment. But nothing can be seen in Exts. A6 to A13 that the said Dr. S. Biju (CW8 in Ext. A2) was the Medical Officer who had treated the patient named Babu stated in Exts, A6 to A13. So as the medical evidence is not proving the case of applicant that he had sustained with injuries in the said road traffic accident, it can hold that the applicant is not entitled for compensation as claimed.” 6. It is noticed that the crime with reference to the motor accident was registered as per Ext.A1 on 05.12.2004 i.e., 15 days after the alleged motor accident on 21.11.2004. The registration of the crime was based on a private complaint lodged by the petitioner before the Police as CMP No.10807/2004, filed before Judicial First Class Magistrate Court-I, Nedumangad under Section 156 (3) of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’). Crime No. 473/2004 was registered for the offences punishable under Sections 279, 337 and 338 of the Indian Penal Code, 1860 (for short ‘the IPC’). Thereafter, investigation was conducted and a final report was submitted which is marked in evidence as Ext.A2. A perusal of the final report would reveal that the driver of the autorickshaw, allegedly involved in the motor accident was chargesheeted by the police for the offences ``` MACA NO. 1629 OF 2013 ``` ``` 6 ``` aforementioned. No contra evidence was adduced by the respondents to establish against the final report marked in evidence as Ext.A2. No evidence was also adduced by the respondents that Ext.A2 is the outcome of a collusion among the petitioner and the police. It is true that the FIR was registered after 15 days from the date of occurrence. As explanation for that delay, cogent reason was not furnished while lodging the FIS. But the police after investigation has come to a conclusion that a motor accident was occurred on 21.11.2004 and that was resulted from the rash and negligent driving of the autorickshaw bearing Registration No.KL-01-S-155 by its driver who was arrayed as the 3[rd] respondent in the Original Petition, seeking compensation. 7. It is found stated in paragraph 14 of the written statement filed by the 2[nd] respondent/insurer as follows:- “14. The averments and allegations in column No. 28 of the application are not correct and hence denied. The applicant has not sustained injury out of the alleged Auto Rickshaw No.KL-01-S-155 and out of the alleged accident on 21.11.2004. The place, date and time of the alleged accident is denied. This respondent humbly submits that the crime has been registered by the police through a private complaint filed by the applicant before the Judicial first class magistrate court, Nedumangadu and the same has been sent to the police under 156(3) CrPC. The crime has been registered ``` MACA NO. 1629 OF 2013 ``` ``` 7 ``` after a period of 15 days. No reason has been stated for the delay in registering the crime. The applicant may be directed to produce the wound certificate to the effect that he sustained injuries out of the alleged accident on 21-11-2004. If he fails to produce the same an adverse inference may be drawn against him. The applicant may be put to strict documentary proof that he sustained injuries out of the alleged accident on 21-11-2004. This respondent humbly submits that the Auto Rickshaw No.KL-01-S-155 has not involved in the alleged accident and has not sustained the injuries. The averments and allegations in column No. 28 of the application are to be proved by the applicant by documentary evidence.” 8. It was contended by the 2[nd] respondent that the motor accident was occurred on 21.11.2004 and the petitioner claimed to have sustained injuries in the said accident and that there is no proof regarding the place and time of the alleged accident. It is also stated that crime was got registered by filing a private complaint before Judicial First Class Magistrate Court -I, Nedumangad and forwarding of that to the Police under Section 156(3)Cr.P.C. It is further stated that no reasonable explanation was furnished for the delay of 15 days occurred in filing the private complaint. It is also stated that a wound certificate bearing the alleged cause of the injuries was not produced. It is further stated that the petitioner has to adduce documentary evidence to establish the above factums. ``` MACA NO. 1629 OF 2013 ``` ``` 8 ``` 9. Apart from the above, no contention was raised with reference to Ext.A2 laid by the Police after concluding the investigation in the crime registered with reference to the motor accident in question, that the motor accident was occurred due to rash and negligent driving of the autorickshaw by its driver. No allegation was raised in the written statement that Ext.A2 was the outcome of collusion among the petitioner and the police. 10. In the above circumstances, the ratio in **New India Assurance Co. Ltd Vs Pazhaniammal [2011 (3) KLT 648]** will be applicable in the case on hand. When the petitioner claims that he had sustained injuries in a motor accident and marks Exts.A1 and A2 in evidence, those would establish that the motor accident averred by the petitioner was resulted from the rash and negligent driving of a vehicle (an autorickshaw) bearing Registration No. KL-01-S-155 by its driver and the contention of the 2[nd] respondent that it being the outcome of a belated lodging of a private complaint is liable only to be discarded, will not sustain. So it is for the 2[nd] respondent to adduce evidence to show that Ext.A2 final ``` MACA NO. 1629 OF 2013 ``` ``` 9 ``` report is the outcome of collusion among the petitioner and the police. Apart from taking such a contention, the 2[nd] respondent failed to adduce any evidence in the matter. Therefore, this Court is inclined to reverse the finding of the Tribunal that the petitioner failed to establish that injuries were sustained by him in a motor accident occurred due to rash and negligent driving of an Autorickshaw bearing Registration No. KL-01-S-155 by its driver. 11. A contention was also raised by the 2[nd] respondent that the name of the petitioner differs in the medical documents marked in evidence and relied on by him. This Court could see from the medical documents that the name of the petitioner was reflected from all those documents as Mr.Babu. It is true that in the referral causality card dated 21.11.2004, the primary medical document, the name was shown as Sundaraj and it was striken off and re-written as Babu. In all other medical documents the name of petitioner is found stated as Babu. Therefore, the argument of the 2[nd] respondent that the petitioner failed to establish that he had ``` MACA NO. 1629 OF 2013 ``` ``` 10 ``` sustained injuries in the motor accident in question is only to be discarded as untenable. 12. The Tribunal has gone wrong in dismissing the Original Petition filed by the petitioner citing the reasons shown in the extract above. Therefore, this Court is justified to reverse the award under challenge and to hold that the Original Petition is maintainable under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) and the petitioner is entitled to get compensation. 13. As already noted the Tribunal has answered the first point in favour of the petitioner. The tribunal has found that the motor accident was occurred due to the rash and negligent driving of the autoriskhaw by its driver. Therefore the award to the extent the Tribunal answered issue No.1 is maintained and the rest of the award is set aside. 14. It is found from the medical documents marked in evidence before the Tribunal that the petitioner sustained fracture of lateral end of radius, POP cast was applied as procedure of treatment and it was removed on 22.12.2004. ``` MACA NO. 1629 OF 2013 ``` ``` 11 ``` Therefore the petitioner undoubtedly is entitled to get compensation. 15. Petitioner claimed to be a coolie worker having `6,000/- as monthly income. Petitioner failed to adduce evidence to establish the monthly income earned by him. Being a coolie worker, he may not be able to establish that also. The Apex court in **Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited** **[(2011) 13 SCC 236]** has fixed the monthly income of a coolie worker who sustained injuries in a motor accident occurred in the year 2004 as `4,500/-. Therefore, this Court is inclined to fix `4,500/- as the monthly income of the petitioner. Since POP cast was applied for two months, the petitioner may not be able to attend his work at least for five months. Therefore, loss of earning is considered for five months and thus `22,500/-(`4,500/- x 5) is arrived at as the compensation payable for loss of earning. `5,000/- is awarded towards bystander expenses and `4,000/- towards extra nourishment. As compensation towards damages to clothing, this Court is inclined to award `1,000/- and towards ``` MACA NO. 1629 OF 2013 ``` ``` 12 ``` transportation expenses, `2,000/-. Towards pain and suffering and loss of amenities and enjoyments in life, this Court is inclined to award `40,000/- and `30,000/respectively. Petitioner failed to produce a document to establish that he had suffered permanent disability on account of the injuries sustained in the motor accident. Therefore, compensation sought for under the head permanent disability is declined. 16. In the above manner of calculation afresh, petitioner will get `1,04,500/- (`22,500/- + `5,000/- + `4,000/- + `1,000/- + `2,000/- + `40,000/-+ `30,000/-) (Rupees One Lakh Four Thousand and five hundred only) as the total compensation with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. 2[nd] respondent/insurer shall pay the above sum with interest accrued on it at the rate fixed, in favour of the petitioner within a period of two months from the date on which a certified copy of this judgment is received. The disbursal of the amount shall be made in favour of the petitioner as per the guidelines issued by this ``` MACA NO. 1629 OF 2013 ``` ``` 13 ``` Court in Circular No.03/2019 dated 06.09.2019. M.A.C.A stands allowed accordingly. Sd/- **MARY JOSEPH JUDGE** SM