Geojish John v. Ahammedkutty, Salih and United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 MACA.No. 898 of 2009() ---------------------OPMV.2460/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE .................... APPELLANT(S): PETITIONER ------------------------ GEOJISH JOHN,S/O.LONAPPAN,AGED 23 YEARS, RESIDING AT ATTOKARAN HOUSE, PUTHUPPADI POST,KOZHIKODE. BY ADV. SRI.V.S.CHANDRASEKHARAN SMT.PRAISHEEL PRAKASAM SMT.BEATRICE FERIA RESPONDENT(S): RESPONDENTS -------------------------- 1. AHAMMEDKUTTY,AGED 22 YEARS, S/O.ABOOBACKER,RESIDING AT KIZHAKKAPERUVATTIL HOUSE, KAITHAPOYIL POST,KOZHIKODE. 2. SALIH,AGED 22 YEARS, S/O.AHAMMEDKUTTY, RESIDING AT KIZHAKKAPERUVATTIL HOUSE, ANORAMAL,KAITHAPOYIL POST, PUTHUPPADI,KOZHIKODE. 3. THE UNITED INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE, WHITE LINES BUILDING, KALLAI ROAD,KOZHIKODE. ADV. SRI.PMM.NAJEEB KHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * *** M.A.C.A.No.898 of 2009 ---------------------------------------Dated this the 5[th] day of August 2011 ## **J U D G M E N T** ## **R.BASANT,J** Claimant is the appellant. Before the tribunal, he claimed an amount of Rs.1,00,000/- as compensation for injury suffered by him in a motor accident which took place on 23/08/2004. The tribunal, by the impugned award, came to the conclusion that the accident was occurred on account of 10% contributory negligence on the part of the appellant who was riding a scooter at the relevant time. The tribunal further held that the appellant is entitled only to a total amount of Rs.13,500/- as compensation as per the details available in paragraph 8 which we extract below: Medical treatment and incidental : Rs.2,000/charges Pain and suffering : Rs.6,000/Loss of amenities : Rs.2,000/Loss of notional income : Rs.3,000/Transportation : Rs. 500/------------------ **Total : Rs.13,500/-** 2 M.A.C.A.No.898 of 2009 2. The learned counsel for the appellant/claimant submits that the finding that there was 10% contributory negligence on the part of the appellant is totally unjustified by the materials available on record. The learned counsel further submits that reasonable compensation has not been awarded under various heads. 3. Coming to the question of negligence, it is a collision between two vehicles. Police have conducted investigation and final report has been filed by the police raising an allegation that the driver of the insured vehicle was entirely responsible for the accident. Charge sheet was produced before the tribunal. But according to the tribunal, the non-examination of the investigating officer takes away the effectiveness of the charge sheet. 4. The tribunals must learn to make an optimum use of the judicial time available with them. If ritualistic insistence were made that the investigating officers must be examined in all cases to prove the charge sheet, that would result in a chaotic situation making the queue for justice before the tribunals longer and unending. The tribunals are not, of course, prisoners of the final reports filed by the investigating officers; but in a 3 M.A.C.A.No.898 of 2009 case where such charge sheet/final report was produced raising allegations of culpable negligence against an indictee, it would be unrealistic and improper for the tribunal not to take note of such charge sheet filed. We have already considered this aspect in the unreported decision dated 20/07/2011 in **The New India** **Assurance Co.Ltd. v. Pazhaniammal and others (M.A.C.A.No.1700 of 2008).** The production and marking of the charge sheet must atleast ordinarily be held to shift the burden to the respondent who does not want the court to accept the charge sheet. In this case, even after the charge sheet was produced, no evidence was adduced by the respondents. The tribunal had not come to a conclusion that the charge sheet cannot be accepted for any reason. The tribunal had not conveyed to the parties that it does not propose to act on the charge sheet. Parties were not called upon to adduce evidence on the question of negligence notwithstanding the production of the charge sheet. 5. It follows from the above that negligence has been established satisfactorily before the tribunal by production of the charge sheet. In the total absence of any better evidence, we are satisfied that the tribunal ought to have concluded that the 4 M.A.C.A.No.898 of 2009 driver of the insured vehicle was entirely responsible for the accident as revealed from the charge sheet produced. 6. We now come to the quantum of compensation. The appellant did not examine himself before the tribunal. The award shows that he did not appear before the tribunal even though specifically directed to do so. The learned counsel for the appellant submits that the appellant is employed at Bangalore and he could not, because of the compulsions of his employment, make himself available before the tribunal on the appointed dates. We take it that we cannot accept the alleged plea that he had suffered any disability; but that does not mean that the tribunal can ignore other evidence and not award amounts which are otherwise found to be payable legally. The accident took place on 23/08/2004. The appellant was admitted to the Calicut Medical College Hospital on that date. Surgery was done on 24/8/2004. He was discharged on 27/8/2004. He had suffered closed Trimalleolar Fracture on the right ankle. ORIF with 1/3[rd] tubular plate was the procedure undergone. Screws were placed. He continued treatment even after discharge. These are the materials on which the claim for compensation has to be quantified. 5 M.A.C.A.No.898 of 2009 7. The learned counsel for the appellant first of all submits that the nature of injuries, period of treatment, nature of surgical procedures undergone etc. must have conveyed to the court that the appellant must have incurred medical and miscellaneous expenses. He was an in-patient for four days. He had undergone a surgery. We note that medical bills of Rs.7,577/- were produced but the tribunal did not accept and act upon the same as they were not strictly proved. We can ignore actual documents produced; but realistically the tribunal must have noted that the appellant was an in-patient for 4 days at the Calicut Medical College hospital and that surgical procedure was done on him which included the introduction of 1/3[rd] tubular plate and fixation of screws for treatment of the closed Trimalleolar fracture of the right ankle. We are satisfied that even in the absence of any better evidence, the above details are sufficient to direct payment of an amount of Rs.9,000/- as compensation for medical and miscellaneous expenses including bystanders expenses, extra nourishment, damage to clothing etc. 8. For pain and suffering, only an amount of Rs.6,000/has been awarded. The details available in the case definitely persuade us to hold that the appellant is entitled to an amount of 6 M.A.C.A.No.898 of 2009 atleast Rs.12,000/- as compensation for pain and suffering endured by him. 9. It is easy to come to the conclusion on the basis of the materials available that the appellant must have been involuntarily unemployed for a period of 30-40 days as a result of the accident. Only an amount of Rs.3,000/- has been awarded under the head of loss of earnings. We are satisfied that an amount of Rs.5,000/- can be awarded. There is no evidence of any disability produced before the tribunal or before us. We take it that there is no disability suffered. 10. The above discussions lead us to the conclusion that the appellant is entitled to a further amount of Rs.15,000/- as compensation in addition to the amount awarded by the tribunal as per the details shown below: i) Medical and Miscellaneous : Rs.7,000/expenses (Rs.9,000/- minus Rs.2,000/-) ii) Pain and suffering : Rs.6,000/(Rs.12,000/- minus Rs.6,000/-) iii) Loss of notional income : Rs.2,000/(Rs.5,000/- minus Rs.3,000/-) **Total Rs.15,000/-** 7 M.A.C.A.No.898 of 2009 11 **.** On the basis of the above discussion, we come to the conclusion that the appellant is entitled to a total amount of Rs.28,500/- (Rs.13,500/- + Rs.15,000/-) as compensation. 12. In the result, a) This appeal is allowed in part. b) The appellant is found entitled to a total amount of **Rs.28,500/- (** Rupees twenty eight thousand and five hundred only) as compensation. c) Interest shall be payable on the entire amount of compensation at the rate and for the period as directed by the tribunal. d) All other directions of the tribunal are upheld. **(R.BASANT, JUDGE)** **(M.C.HARI RANI, JUDGE)** jsr // True Copy// PA to Judge M.A.C.A.No.898 of 2009 8 9 M.A.C.A.No.898 of 2009 **K.M.JOSEPH & M.C.HARI RANI, JJ.** .No. of 200 ORDER/JUDGMENT 30/082010