Jula Sebastian (deceased) and Others v. Dr. Pankajakshan, Sudhakaran, and The Oriental Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945 ``` ``` MACA NO. 2612 OF 2009 ``` ``` AGAINST THE AWARD DATED 20.08.2008 IN OP(MV) 503/2002 OF MOTOR ``` ``` ACCIDENTS CLAIMS TRIBUNAL, ALAPPUZHA ``` ## **`APPELLANTS/ADDITIONAL PETITIONERS 2 TO 6 IN OP(MV):`** ``` *1JULA SEBASTIAN (DIED) W/O SEBASTIAN LOVELINA HOUSE, KOMMADY, ALAPPUZHA. [THE 1ST APPELLANT DIED AND APPELLANTS 2 TO 5 ARE IMPLEADED AS THE LEGAL HEIRS OF THE 1ST APPELLANT AS PER ORDER DATED 12.06.2024 IN I.A.NO.1/2024 IN MACA NO.2612/2009] ``` ``` 2SEAN SEBASTIAN,S/O.SEBASTIAN LOVELINA HOUSE, KOMMADY, ALAPPUZHA. 3STEFFI ELIZEBETH,D/O.SEBASTIAN LOVELINA HOUSE, KOMMADY, ALAPPUZHA. 4SAM SEBASTIAN,S/O.SEBASTIAN LOVELINA HOUSE, KOMMADY, ALAPPUZHA. 5ELIZEBETH JOSEPH,W/O.JOSEPH LOVELINA HOUSE, KOMMADY, ALAPPUZHA. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1DR.PANKAJAKSHAN S/O NARAYANAN NIRMALYAM VEEDU, PALACE WARD, KOLLAM. 2SUDHAKARAN MANAGER, FEDERAL BANK, THUMPOLY, ALAPPUZHA. 3THE ORIENTAL INSURANCE CO.LTD. ANNAPOORNI MANDIR, CULLEN ROAD, MULLACKAL, ALAPPUZHA. ``` ``` MACA NO. 2612 OF 2009 ``` ``` 2 ``` ``` BY ADVS. FOR R1 BY SRI.B.MOHANLAL FOR R2 BY S.SANTHOSH KUMAR FOR R3 BY SRI.GEORGE CHERIAN (SR.) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2612 OF 2009 ``` ``` 3 ``` ## **`JUDGMENT`** Appellants are the additional claimants 2 to 6 in O.P.(MV).No.503 of 2002 on the file of the Motor Accidents Claims Tribunal, Alappuzha. The said claim petition was initially submitted by the original claimant, seeking compensation for the injuries sustained to him in a motor accident that occurred on 03.05.2001. 2. According to the original claimant, the accident occurred when he was walking through the side of Alappuzha-Ernakulam National Highway rolling his scooter bearing registration No. KL-04/4391 and when he reached Kalavoor, a car bearing registration No.KL-2/B-6969, driven by the 2nd respondent in a rash and negligent manner, hit the petitioner. Consequently, he sustained very serious injuries. Initially he was taken to Medical College Hospital, Alappuzha and from there he was taken to Ernakulam Medical Centre, Palarivattom. He was treated as in-patient for a period of 15 days. According to him, he was working as a salesman in a spare-parts shop with a monthly income of Rs.5,000/-. He was aged 46 years at the time of the accident. According to him he sustained permanent disablement due to the injuries sustained as well. Claim petition was submitted in such circumstances. ``` MACA NO. 2612 OF 2009 ``` ``` 4 ``` 3. The 1st respondent submitted a written statement, contending that he was not the owner of the said vehicle as he transferred the said vehicle before the date of the accident to one C.P.Panicker. Therefore, he contended that he was not a necessary party. The 2nd respondent filed a written statement denying the accident itself. According to him, the car bearing registration No. KL-2/6969 was not at all involved in the accident as at the time and date of the accident he was at his home preparing certain papers to be presented for a conference on the next day. He contended that the petitioner was falsely implicated in order to obtain compensation from the Insurance Company as the actual vehicle involved in the accident could not be traced out. Subsequently, the 3rd respondent insurer of the vehicle was impleaded and they filed a written statement, disputing the accident as such. According to them, the police, after an investigation, found that the vehicle referred to in the claim petition was not involved in the accident and, with the connivance of some of his friends, a false story was cooked up and a complaint was submitted. It was pointed out that, after investigation the police referred the case having found that the said vehicle was not involved. Therefore, they sought dismissal of the application. 4. During the pendency of the claim petition, the original ``` MACA NO. 2612 OF 2009 ``` ``` 5 ``` claimant died and his legal heirs were impleaded as additional claimants 2 to 6. The evidence in this case consists of oral testimonies of PW1 to PW4 and as documentary evidence, Ext.A1 to A12 were marked. The 2nd respondent got himself examined as RW1 and Exts.B1 to B4 were marked. As court exhibit, Ext.C1, the medical certificate of the original claimant, was produced. After the trial, the Tribunal came to the conclusion that the appellant failed to establish the involvement of the vehicle bearing Registration No. KL 2/ B 6969 in the accident and therefore, the claim petition was dismissed. This appeal is submitted by the appellants challenging the award passed by the Tribunal dismissing the claim petition. 5. Heard Sri.A.N. Santhosh, learned counsel appearing for the appellants, Sri.B. Mohanlal, learned counsel appearing for the 1st respondent, Sri.S.Santhosh Kumar, learned counsel appearing for the 2nd respondent and Sri.George Cherian (Thiruvalla), learned Senior Counsel appearing for the 3rd respondent. 6. The main question to be considered is whether the finding of the Tribunal holding that the appellants failed to prove the involvement of the vehicle in the accident is correct or not. To substantiate the contentions, the appellants have examined PWs 1 to 4. PW1 was the claimant himself and PWs 3 to 4 were eye witnesses of the incident. RW1 was the 2nd respondent, ``` MACA NO. 2612 OF 2009 ``` ``` 6 ``` who was allegedly driving the vehicle at the relevant time. On going through the observations made by the Tribunal in the award, it can be seen that, for rejecting the contentions raised by the appellants, the Tribunal mainly relied upon Ext.B4 which is a photocopy of the final report submitted by Mararikulam Police Station in Crime No.109/2001 which was registered in connection with the accident. Exhibit A1 was the FIR registered in the said case. Even though the accident occurred on 03.05.2001, the FIR has been registered only on 11.05.2001 on the basis of a statement given by the deceased claimant. In the FIS, the number of the vehicle was clearly mentioned as KL2/B 6969 and the driver of vehicle was not identified. After conducting the investigation the Police submitted a final report, a copy of which was produced by the 2nd respondent as Ext.B4, wherein it was found that the accident in fact occurred when an Ambassador car hit the original claimant while he was walking through the road, rolling a scooter, and since the said car could not be identified, the original claimant in connivance of CWs 1 and 2 cooked up a false case including the number of the vehicle referred to in the final report with the intention to claim insurance coverage for the said vehicle. The Tribunal accepted this finding in the final report and also the statement of RW1, the 2nd respondent herein. Even though the appellant examined PWs 1 to 4 to ``` MACA NO. 2612 OF 2009 ``` ``` 7 ``` substantiate the manner in which the accident occurred none of the said witnesses were relied on by the Tribunal. 7. As regards the evidence of PW1, one of the main reasons cited by the Tribunal for rejecting his evidence is to the effect that even though accident occurred on 03.05.2001, the statement in this regard was given before the police only on 11.05.2001 and thus, there was a delay of 8 days. However, the crucial aspect to be noticed in this regard is that, immediately after the accident, the appellant was taken to Medical College Hospital, Alappuzha, from there, he was taken to Medical Centre Hospital, Ernakulam, and he continued treatment at an inpatient for 15 days in the said hospital. The medical records also would indicate that the original claimant sustained serious injuries and he was bedridden during the period of his treatment. Evidently, his statement was recorded during the relevant time. Therefore, it is evident that, as he was undergoing treatment at the relevant time in a hospital, which is far away from the place of the accident, the Tribunal should not have given much emphasis on the delay for doubting the genuineness of the claim. Yet another aspect relied on by the Tribunal was that the wound certificate issued by the Medical College Hospital, Alappuzha, where the original claimant was initially taken for treatment, was not produced. Of course it is true that, the said certificate is not ``` MACA NO. 2612 OF 2009 ``` **`8`** produced but, that by itself cannot be a reason to discard the entire evidence. This is particularly because, the fact that the appellant sustained injuries in the motor accident and the date and time of the accident were also not disputed by anyone. The only question is the involvement of the vehicle referred to in the claim petition in the accident. Therefore, I am of the view that, the Tribunal gave undue emphasis to the non-production of the wound certificate, which was not warranted. 8. When coming to the evidence of PW2, the shortcoming noticed by the Tribunal was that he was not having any acquaintance with the appellant but he appeared before the Tribunal on his request without getting any summons. It was also highlighted in the award that despite the fact that PW2 was giving evidence after six years of the incident he remembered the number of the car which hit the original claimant but, he was unable to remember the number of the scooter on which the original claimant was travelling. After carefully going through the deposition of PW2, I am of the view that the reasons mentioned above by the Tribunal for discarding the said evidence were not at all proper. Merely because, a person came to the Tribunal for giving evidence on the request of the party concerned, his evidence cannot be completely discarded as there cannot be any assumption that, such ``` MACA NO. 2612 OF 2009 ``` **`9`** witness would speak only untrue facts. Unless the credibility of the evidence given by him was shattered in the cross-examination there is nothing wrong in accepting the same. In this case despite having a careful scrutiny of the deposition, I am unable to find any such material which would discredit the testimony of PW2. As regards the failure on the part of the PW2 to recall the number of the scooter, it also cannot have much significance in view of the fact that when an accident occurs normally, the person witnessing the same would be more cautious to take note of the number of the offending vehicle and not any other vehicle. Therefore, that could be a natural reaction and therefore, no adverse inference could have been drawn by the Tribunal with respect to the said evidence. 9. When coming to the evidence of PWs 3 and 4, it is to be noted that, their depositions are also in perfect alignment with the evidence given by PWs 1 and 2. However, the Tribunal did not rely upon their evidence on the reasons that they were not summoned witnesses and they could recall the number of the offending vehicle after six years but, they failed to recall the number of the scooter on which the original claimant was travelling. On carefully going through the observations made therein, I do not find any justifiable reason to discard the evidence of PWs 1 to 4 which are consistent in nature and the credibility of the said witnesses could not be ``` MACA NO. 2612 OF 2009 ``` ``` 10 ``` shattered in the cross-examination as well. 10. It is seen from the overall reading of the award passed by the Tribunal that apparently the Tribunal was carried away by the conclusion arrived by the Police in Ext.B4 final report. First of all, the Tribunal failed to notice the fact that Ext.B4 was only a photocopy and the copy of the said document marked in the evidence itself was incomplete and did not contain all the pages. In Ext.B4 final report, the Police arrived at a definite conclusion that the vehicle involved in the accident was an Ambassador car and since the said vehicle could not be traced out, a false story was cooked up by the original claimant with the help of CWs 1 and 2 by including the vehicle bearing KL 2 B 6969. However, the materials based on which such a conclusion was arrived at by the police, could not found in the copy of the said final report. In the final report, seven persons were cited as witnesses by the Police but, in the copy produced as Ext.B4 the statements recorded under Section 161 of Cr.P.C. of the said witnesses were not produced. Therefore, in the absence of their statements, the basis of the conclusion of the Police regarding the falsity of the case advanced by the defacto complainant therein, the original claimant, cannot be established. Of course it is true that RW1, the 2nd respondent herein mounted the box and asserted that his vehicle was not involved in the ``` MACA NO. 2612 OF 2009 ``` ``` 11 ``` accident. Here again, apart from the interested testimony of RW1 and the copy of Ext.B4 report, in respect of which I have already found that the conclusions were not supported by any materials, there are no other evidence. The other materials produced by the 2nd respondent are Exts.B1 and B2, the complaint submitted by the 2nd respondent before the Superintendent of Police, Alappuzha and before the competent officer of the 3rd respondent Insurance Company. Even though the said complaints were produced, there is absolutely nothing to show the acknowledgment evidencing the submission of the said complaint. On going through the contents of the said complaint it can be seen that his version is exactly the same as he mentioned in the written statement i.e. his vehicle was falsely included on the basis of a collusion between the original claimants and his friends. In his deposition also, RW1 was placing reliance upon Ext.P4 final report and the conclusions arrived by the Police in the same. 11. As far as the matter of appreciation of evidence in a proceeding under Section 166 of the Motor Vehicles Act, 1988 is concerned, the same is based on preponderance of probabilities and the absolute proof is required. Thus the court has to adjudicate the question of negligence by evaluating the evidence adduced by either side and the attempt to be made is to find out which is the ``` MACA NO. 2612 OF 2009 ``` **`12`** probable case. When the evidence adduced in this case is considered in that perspective, it is to be noted that, in support of the version of the original claimant, PWs 1 to 4 were examined, and they have given a consistent version of the accident. The credibility of any of the said witnesses could not be shattered by the respondents during the cross-examination as well. I have already found that, merely because they were not the summoned witnesses, their depositions cannot be ignored as such, unless there are discrepancies in that evidence which compel the court to discredit their versions. I have already found that there are no such discrepancies in the said evidence. 12. On the other hand, the contra evidence adduced by the respondents against the version of the original claimant was in the form of deposition of RW1 and Exts.B1 to B4. As far as Ext.B4 final report is concerned, I have already found that the conclusions of the Police therein were not seen supported by any of the statements of the witnesses as no such statements were produced on record. Besides the same, Ext.B4 is only a photocopy of the final report. None of the persons who are shown as witnesses in the said final report or the investigation officer were not examined before the tribunal. In the absence of any such evidence, the contents of the same cannot be accepted as such. Thus, when the ``` MACA NO. 2612 OF 2009 ``` **`13`** evidence adduced by both sides are evaluated, from the perspective of preponderance of probabilities, the only conclusion possible is that, the version that was put forward by the original claimant is to be accepted. Therefore, I find that, the finding of the tribunal, holding that the appellants failed to establish the involvement of the vehicle bearing Registration No. KL-2/B -6969 in the accident, is not a legally sustainable finding and therefore it is set aside. It is held that, the involvement of the said vehicle is established from the evidence of PW1 to 3 and since the 3[rd] respondent is admittedly the insurer of the said vehicle, they are liable to pay the compensation. 13. The next question to be considered is with respect to the quantum of compensation. As the tribunal dismissed the application, the quantification was not done. Since this was an accident that occurred in the year 2001, and the claim was submitted in the year 2002, I do not intend to remand the matter to the tribunal for adjudicating the quantum alone, as it will further delay the adjudication process, thereby causing undue prejudice to the appellants. 14. According to the appellants, the deceased was working as a Sales Man of Spare parts with a monthly income of Rs.5,000/-. However, to substantiate the said claim, no evidence was adduced. Therefore, guesswork has to be made to determine the monthly ``` MACA NO. 2612 OF 2009 ``` ``` 14 ``` income of the original appellant. The accident occurred in the year 2001, and he was an able-bodied man aged 46 years at the time of the accident. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236],** the Honorable Supreme Court was pleased to take the monthly income of an ordinary employee as Rs.4,500/- for the year 2004 even in the absence of any evidence. Therefore, I am of the view that, the monthly income in this case can be taken as Rs.3,000/- for the purpose of assessing the compensation for disability. Exhibit C1 is the certificate issued by the Medical Board showing the percentage of disability suffered by the original claimant consequent to the injuries sustained in the said accident. The disability certified therein was 20%. Exhibit A3 is the treatment details of the original claimant. The injuries mentioned therein are lacerations on both legs and open fractures of both bones of the legs. It is further mentioned in Ext.A3 that initially wound debridement and bilateral external fixation were done, skin grafting was done on 08.05.2001 and he was treated with antibiotics analgesics and other supportive measures. External fixators were removed, POP slabs were given on 18.05.2001 and he was discharged on 19.05.2001. It is also seen from the records that he was again admitted on three other occasions, and the total days of inpatient treatment come to 72 ``` MACA NO. 2612 OF 2009 ``` **`15`** days. It is also seen that, ilizarov ring system on the right leg was fixed and it was removed only on 26.11.2001. In the disability certificate, it is mentioned that, united fracture left tibia with 1.0 c.m. shortly 5 degree various angulation and prostro matrix with implants in situ, fracture of right tibia united with 5 degree anterior angulation. It was in that circumstances 20% permanent disability for the whole body was certified by the Medical Board. After carefully going through the treatment certificate as evidenced by Ext.A3 and Ext.C1, the percentage of disability as certified in Ext.C1 has to be accepted and hence the compensation has to be calculated by taking the physical disability as 20%. I have already found that the monthly income can be taken as Rs.3,000/-. As he was aged 46 years at the time of the accident, the proper multiplier is 13. Thus, when computing the compensation, for loss of earning capacity owing to permanent disability as referred to above, the amount would come to Rs.93,600/- (3000x12x13x20/100). Considering the nature of the injuries and the period of hospitalization which extends to 72 days in four spells, I am of the view that, he must have been prevented from pursuing his employment at least for a period of six months. Therefore, the loss of earnings has to be calculated for the said period and thus the said amount would come to Rs.18,000/-. The medical bills produced are for Rs.1,86,406/- out of which some ``` MACA NO. 2612 OF 2009 ``` ``` 16 ``` of the bills are in the name of the wife of the original petitioner, and in some of the bills, no names are mentioned. The learned counsel for the appellants specifically identified the said bills and highlighted the said discrepancies therein. On perusal of the records, I find that the said objections have to be accepted. The amount covered as per the bills objected to by the learned counsel for the 3[rd] respondent would come to Rs.2,058/- and thus the amount covered as per the acceptable bills would come to Rs.1,84,348/- In the light of the aforesaid aspects, I deem it appropriate to fix the total compensation in the following manner as follows; |Sl.Nos.|Heads|Amount| |---|---|---| |1|Loss<br>of<br>earning<br>(six months.)|18,000/- (3,000x6)| |2|Transport to hospital|8,000/-(He was brought to<br>hospital at Ernakulam from<br>Alapuzha for treatment on<br>several occasions which includes<br>four<br>spells<br>of<br>inpatient<br>treatment)| |3|Medical Expenses|1,84,348/-| |4|Bystander Expenses|7,200/- (72x100)| |5|Extra nourishment|3,000/-| |6|Pain and suffering|40,000/-| |7|Loss of earning power owing<br>to disability|93,600/-| |8|Loss of Amenities|40,000/-| ||**Total**|**3,94,148/-**| ``` MACA NO. 2612 OF 2009 ``` ``` 17 ``` In the result this appeal is allowed with the following orders: a) The award dated 20.08.2008 in O.P (MV) No. 503/2002 passed by the Motor Accident Claims Tribunal Allapuzha is hereby set aside. b) The claim petition is allowed by holding that the accident occurred due to the negligence on the part of the 2[nd] respondent in driving the car bearing Registration No.KL.2/B 6969. The 1[st] respondent, the owner of the said vehicle is vicariously liable. Thus the respondents 1 to 3 are jointly and severally liable to compensate the original claimant. Being the insurer of the said vehicle, the 3[rd] respondent is held liable to pay the compensation. c) The quantum of compensation is fixed as Rs.3,94,148/[Rupees Three Lakhs Ninety Four thousand One hundred and Forty Eight only] and the 3[rd] respondent is directed to deposit the said amount with interest @ 8% per annum from the date petition till realization. The said amount shall be deposited within a period of three months from the date of receipt of a copy of this judgment. ## **Sd/- ZIYAD RAHMAN A.A. JUDGE** DG/scs/Asw