Joseph Francis D' Cruz v Baby T.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 24TH DAY OF JULY 2015/2ND SRAVANA, 1937 MACA.No. 821 of 2015 () -----------------------AGAINST THE AWARD IN OPMV 766/2005 of I ADDL MOTOR ACCIDENTS CLAIMS TRIBUNAL, THIRUVANANTHAPURAM DATED 24-05-2014 ## APPELLANT/APPELLANT/1ST RESPONDENT: ------------------------------------------------ JOSEPH FRANCIS D' CRUZ T.C 13/112, KANNAMMOOLA, PETTAH THIRUVANANTHAPURAM-24 BY ADVS.SRI.M.R.ANANDAKUTTAN SMT.M.A.ZOHRA SRI.MAHESH ANANDAKUTTAN ## RESPONDENT(S)/RESPONDENT/APPLICANT: ---------------------------------------------------------------------- BABY T. W/O.LATE KUMARESAN, T.C 78/5181, BALA NAGAR COLONY VETTUCAUD, TITANIUM P.O, THIRUVANANTHAPURAM 695 021 R1 BY ADV. SRI.NAGARAJ NARAYANAN R1 BY ADV. SRI.SAIJO HASSAN R1 BY ADV. SRI.BENOJ C AUGUSTIN R1 BY ADV. SRI.SEBIN THOMAS R1 BY ADV. SRI.VIVEK V. KANNANKERI R1 BY ADV. SMT.J.KASTHURI R1 BY ADV. SRI.P.K.JAYAKRISHNAN R1 BY ADV. SRI.VISHNU BHUVANENDRAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N.RAVINDRAN & ANU SIVARAMAN, JJ.** ## **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= M.A.C.A.No.821 of 2015** ## **=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 24[th] day of July, 2015** ## **JUDGMENT** ## _**P.N.Ravindran, J.**_ The appellant is the first respondent in O.P.(M.V.)No.766 of 2005 on the file of the Motor Accidents Claims Tribunal, Thiruvananthapuram. The sole respondent is the claimant therein. The respondent instituted O.P.(M.V.)No.766 of 2005 joining the appellant herein and another as the respondents, claiming compensation for the injuries sustained by her in a motor accident. The claimant contended that the accident took place on account of the rash and negligent driving of an autorickshaw owned by the appellant by Mohanan, S/o.Velayudhan, who was sought to be impleaded as the additional second respondent by filing I.A.No.603 of 2007 which was filed on 3.2.2007. The driver of the autorickshaw who was sought to be impleaded as the additional second respondent was not however impleaded for the reason that he passed away even before notice of I.A.No.603 of 2007 was served on him. 2. Upon receipt of summons, the appellant, the sole respondent in the Motor Accidents Claims Tribunal, entered appearance and filed a written statement. He denied the allegation that his autorickshaw was M.A.C.A.No.821 of 2015 2 involved in the accident. Referring to Ext.A4 wound certificate it was contended that while the wound certificate mentions the date of the incident as 21.4.2004, in the claim petition it is stated that the accident took place at 9.30 p.m. on 22.4.2004 and that it runs counter to the narration of the accident in the wound certificate. It was also contended that in Ext.A4 wound certificate it is stated that the accident took place when two autorickshaws collided at about 11 p.m. on 21.4.2004. The appellant also contended that the claimant has influenced the Police to file a charge sheet setting out a different version of the incident. He further contended that while in the claim petition it is stated that the accident took place at about 9.30 pm on 22.04.2004, in the charge sheet it is stated that the accident took place at about 11 pm on 21.04.2004 while the claimant was travelling in an unidentified autorickshaw and therefore, no reliance can be placed on the charge sheet. The appellant also contended that the compensation claimed is exorbitant and excessive. 3. Before the Motor Accidents Claims Tribunal no oral evidence was adduced on either side. However on the side of the claimants Exts.A1 to A10 were produced and marked. The Motor Accidents Claims Tribunal, after considering the rival contentions held that the accident took place on account of the rash and negligent driving of the auto rickshaw by the person sought to be impleaded as the additional M.A.C.A.No.821 of 2015 3 second respondent. In coming to the said conclusion, the Motor Accidents Claims Tribunal placed reliance on Ext.A1 FIR and Ext.A5 final report. Ext.A5 final report discloses that the accident took place at 11 pm on 21.04.2004. The version of the police is that accident took place when an unidentified auto rickshaw collided with the appellant's auto rickshaw and in that accident the claimant sustained grievous injuries. Though the appellant contended relying on the aforesaid charge sheet that the accident took place when two auto rickshaws collided, the Motor Accidents Claims Tribunal held that in the absence of any evidence to discredit the case pleaded by the claimant and in the First Information Statement given by the claimant she had stated that she sustained injuries when the auto rickshaw owned and driven by the appellant hit her, none other than the second respondent who was sought to be impleaded was responsible for the accident. The Tribunal thereafter proceeded to award the sum of Rs.70,830/- as compensation under various heads, as against the claim for Rs.2,00,000/- and directed the appellant to deposit the said amount together with interest at 9% per annum from 18.5.2004 till realisation with proportionate costs. The appellant has aggrieved thereby, filed this appeal. 4. We heard Smt.M.A.Zohra, learned counsel appearing for the appellant and Sri.Vishnu Bhuvanendran, learned counsel appearing for M.A.C.A.No.821 of 2015 4 the respondent. We have also gone through the pleadings and the materials on record. Smt.M.A.Zohra, learned counsel appearing for the appellant submitted relying on Ext.A4 wound certificate and Ext.A5 final report the claimant's case that she sustained injuries when she was hit by the auto rickshaw driven by additional second respondent sought to be impleaded cannot be believed in view of the statement in the wound certificate and the final report that the accident took place on account of the collision of two auto rickshaws, namely the one in which the claimant was travelling and the auto rickshaw driven by the additional second respondent who was sought to be impleaded, that the details of the auto rickshaws are not forthcoming and as there is no material to hold that the auto rickshaw driven by the additional second respondent who was sought to be impleaded had caused the accident, the Tribunal erred in awarding compensation to the claimant and directing the appellant to satisfy the award. Learned counsel contended that in such circumstances, the impugned award is liable to be set aside and the claim petition dismissed. It was submitted that the entry in Ext.A4 medical certificate is to the effect that the accident took place at about 11 pm on 21.04.2004 and therefore, for that reason also, the impugned award is liable to be set aside. 5. Per contra, the learned counsel appearing for the respondents claimants would contend that though the accident took place at about M.A.C.A.No.821 of 2015 5 11.30 pm on 21.04.2004 and the claimant was taken to the Medical College Hospital on the very same day, initially she was treated only as an outpatient and was admitted as an inpatient only on 22.04.2004 and that is the reason why in the FIR which was belatedly filed and in the claim petition, the date of the accident is mentioned as 22.04.2004 Learned counsel contended that in the absence of any challenge to the authenticity and genuineness of Ext.A4 wound certificate, this court can safely proceed on the basis that the claimant sustained injuries in a motor accident that took place in 21.04.2004 and therefore, nothing turns on the statement in the claim petition that the accident took place on 22.04.2004. As regards the statement in Ext.A4 wound certificate and in Ext.A5 final report to the effect that the accident took place when two auto rickshaws collided, learned counsel contended that the police have not been able to trace out the auto rickshaw which is said to be collided with the auto rickshaw in which the claimant was travelling, that the details of the auto rickshaw in which the claimant was travelling are also not forthcoming and therefore, no reliance can be placed on the final report to hold that the accident took place when the auto rickshaw in which the claimant was travelling (the unidentified auto rickshaw) collided with the auto rickshaw owned by the appellant. Learned counsel contended relying on the decision of a Division Bench of this court in **State of Kerala v. Kilikkathaparambu Sasi** (2004 6 M.A.C.A.No.821 of 2015 (2) KLJ 606) that the duty of the doctor is to save the life of the person brought to him and to inform the police and that he is not all concerned as to who committed the offence and if they start examining informants they are likely to become witnesses which is not permissible and therefore, no reliance can be placed on Ext.A4 wound certificate to hold that the accident took place when the auto rickshaw in which the claimant was travelling collided with another. 6. We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record. The case set out by the claimant in the claim petition is that she sustained injuries when she was hit by the auto rickshaw owned by the appellant. She had however stated in the claim petition that the accident took place at about 9.30 pm on 22.04.2004. The records, more particularly Ext.A4, the authenticity and genuineness of which is not disputed by the appellant discloses that the claimant was taken to the Medical College Hospital, Thiruvananthapuram at about 11.45 pm on 21.04.2004. It is not in dispute that she was admitted as inpatient only on the next day. The First Information Statement was given on 27.05.2004 more than a month thereafter. In the First Information Statement, the date of the accident is mentioned as 22.04.2004. In the said First Information Statement also, the case set out by the claimant is that she was hit by M.A.C.A.No.821 of 2015 7 the auto rickshaw belonging to the appellant. She had no case in the First Information Statement that she sustained injuries when the auto rickshaw in which she was travelling collided with the auto rickshaw belonging to the appellant. However, for reasons which are not discernible, the police have in Ext.P5 charge sheet alleged that accident took place when an unidentifiable auto rickshaw in which the claimant was travelling collided with the auto rickshaw owned by the appellant. In our opinion, having regard to the recitals in Ext.A3 mahazar and the attendant circumstances the only conclusion possible in the instant case is that the accident took place as alleged by the claimant. It is evident from the description of the auto rickshaw contained in Ext.A3 mahazar that it was involved in an accident and that thereupon it was taken to a workshop. 7. In such circumstances, we are not persuaded to hold, relying on Ext.A4 wound certificate or Ext.A5 charge sheet that a motor accident involving the appellant's auto rickshaw had not taken place in the night on 21.04.2004 or that another motor vehicle was involved in the accident. The finding entered by the Motor Accidents Claims Tribunal that the claimant sustained injuries in a motor accident and that the additional second respondent who was sought to be impleaded was responsible for the accident does not therefore merit interference. The quantum of compensation awarded by the Tribunal is also, in our M.A.C.A.No.821 of 2015 8 opinion, not exorbitant or excessive. The claimant had in the accident sustained fracture of both bones of the right forearm and other injuries. She had undergone treatment at Medical College Hospital, Thiruvananthapuram as an in patient for a period of 21 days. Though the doctor, who had issued Ext.A9 disability certificate, had assessed the percentage of disability as 8%, the Tribunal awarded compensation for permanent disability taking the percentage of disability as only 4%. In such circumstances by no stretch of imagination can it be said that the sum of Rs.26,880/- awarded as compensation for permanent disability is exorbitant or excessive. The compensation awarded by the Tribunal under the other heads also cannot, in our opinion, be said to be exorbitant or excessive. We accordingly hold that there is no merit in the instant appeal. The appeal fails and it is dismissed. No costs. ## **P.N.Ravindran, Judge** ## **Anu Sivaraman, Judge** sj