MACA 51 of 2012

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMRS.JUSTICESOPHYTHOMAS FRIDAY,THE16[TH]DAYOFJUNE2023/26THJYAISHTA,1945 ``` ``` MACANO.51OF2012 ``` ``` OPMV8/2007OFMOTORACCIDENTsCLAIMSTRIBUNAL,TIRUR ``` ``` APPELLANT/PETITIONER: ``` ``` RATHEESH,S/O.KANAKARAYAIN,THOTTUPURATHHOUSE,CHERUKUNNU, POSTOTHUKUNGAL,TIRUR,MALAPPURAMDISTRICT.PIN-676528. ``` ``` BYADVSRI.K.P.SUDHEER ``` ## **`RESPONDENTS/RESPONDENTS:`** - **`1 M.ABDUL NISAM, S/O. SAIDHALAVI, MOOZHIKKAL HOUSE, P.O.OTHUKKUNGAL-676528, MALAPPURAM DISTRICT.`** - **`*2 HASKAR, S/O. MOIDEEN, POOLAKUNDEN HOUSE, P.O.OTHUKKUNGAL-676528, MALAPPURAM DISTRICT. (DELETED).`** - **`3 THE ORIENTAL INSURANCE CO.LTD., JASEELA COMPLEX, NILAMBUR ROAD, MANJERI-676121, MALAPPURAM DISTRICT.`** - **`THE 2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 21.05.2019 IN I.A.NO.1 OF 2019`** ``` BYADVS. ``` ``` SRI.GEORGECHERIAN(BYORDER) SMT.K.S.SANTHI ``` ``` THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEENFINALLY HEARDON07.06.2023,THECOURTON16.06.2023DELIVEREDTHE FOLLOWING: ``` MACA 51 of 2012 2 ## **J U D G M E N T** This appeal has been preferred by the claimant in OP(MV) No.8 of 2007 on the file of Motor Accidents Claims Tribunal, Tirur, impugning the award, by which his claim for compensation was dismissed. 2. On 20.05.2006 at about 9.30 p.m., while the appellant was standing by the roadside waiting for a bus, KL-10/X-567 motorcycle ridden by the 1[st] respondent in a rash and negligent manner, dashed against the rear side of an auto rickshaw, which was proceeding in front, and then dashed against the appellant. The appellant as well as the pillion rider of the motorcycle sustained injuries in that accident. He was hospitalised with head injury. He was a 20 year old Coolie, earning monthly income of Rs.7,000/-. He approached the Tribunal claiming compensation of Rs.1,60,000/-. But the Tribunal dismissed his claim with costs, finding that there was delay in registering the crime, and there was discrepancy with respect to the place of incident, and the appellant failed to prove that the MACA 51 of 2012 3 accident occurred due to the rash and negligent driving of the motorcycle by the 1[st] respondent. 3. The evidence before the Tribunal consists of the oral testimony of PW1 and Exts. A1 to A13, C1 and C2. 4. Now let us see whether any interference is warranted in the impugned award dismissing the claim of the appellant. 5. Heard learned counsel for the appellant and learned counsel appearing for the 3[rd] respondent-Insurer. 6. According to the appellant, he was hospitalised with head injury and he regained his conscience only after 7 days of the accident. So he cannot be blamed for the delay in registering the FIR. Since he suffered head injury in the accident which occurred due to the rash and negligent riding of the offending motorcycle by the 1[st] respondent, and expended huge amounts for treatment, the 3[rd] respondent- Insurance Company is liable to compensate him. 7. The accident occurred on 20.05.2006 at 9.30 p.m. The case of the appellant is that the incident occurred at KG Padi, Trikkandiyoor Amsom, under the limits of Tirur Police Station. He MACA 51 of 2012 4 was standing by the roadside waiting for a bus. The motorcycle dashed against the rear side of an auto rickshaw, which was proceeding in front, and thereafter, the motorcycle knocked down the appellant. Ext.A3, the Wound Certificate, shows that he had suffered head injury with brain edema. He was conscious but drowsy with vomiting. The history stated in Ext.A3 is that while travelling pillion in a motorcycle, knocked down by an auto rickshaw. That history pertains to the other injured who was travelling pillion in the motorcycle ridden by the 1[st] respondent. Since the appellant was vomiting with head injury, probably the history stated by the other injured might have been copied in his Wound Certificate also. Since he had suffered head injury, and was admitted in hospital for about 13 days, one cannot find fault with him for the delay in registering the FIR. If the hospital authorities, where he was admitted, had given due intimation to the Police, on the date of admission itself, the crime might have been registered immediately after the accident. Since he was hospitalized and bedridden due to severe head injury, he cannot be blamed for the MACA 51 of 2012 5 delay in lodging the FIR. 8. Regarding the discrepancy in the place of incident, in the FIR itself, it is stated that the motorcycle, after hitting the auto rickshaw, knocked down a person, who was standing by the roadside. The FI statement given by the pillion rider of the motorcycle shows that the accident occurred at 9.30 p.m. at KG Padi, and the motorcycle after hitting the auto rickshaw knocked down a person who was standing by the roadside. Ext.A2, the Scene Mahazar, also says that the accident occurred at KG Padi. Ext.A5, the copy of Charge Sheet, also shows that the accident occurred at KG Padi on 20.05.2006 at 9.30 p.m., due to the rash and negligent riding of the offending motorcycle by the 1[st] respondent. So, the 1[st] respondent was charged for offences punishable under Sections 279, 337 & 338 of the IPC. 9. In **New India Assurance Co. Ltd** vs. **Pazhaniammal** (2011 (3) KLT 648)], a Division Bench of this Court held that, ‘ _as a general rule it can be accepted that production of charge sheet is prima facie sufficient evidence of negligence for purpose of a claim_ MACA 51 of 2012 6 _under S.166. If any of the parties do not accept such charge sheet, burden must be on such party to adduce evidence. If Court feels that charge sheet is collusive, Tribunal can record that charge sheet cannot be accepted and call upon the parties, at any stage, to adduce oral evidence of accident and alleged negligence. In such case, issue of negligence must be decided on other evidence, ignoring charge sheet_ ’. Hence, production of Charge Sheet is _prima facie_ evidence of negligence. 10. Learned Tribunal found that in the Wound Certificate, the place of incident was stated as Thazhepalam. But the Police records will show that the incident occurred at KG Padi. The mere discrepancy regarding the place of occurrence seen in the Wound Certificate and in the Final Report could not have been taken as a ground to disbelieve the accident itself, when there is ample evidence after a full-fledged investigation by Police, that the accident occurred at KG Padi. The learned Tribunal came to the conclusion that Thazhepalam in Tirur is away from the place known as KG Padi. The materials to reach that finding will not find a place MACA 51 of 2012 7 in the award. PW1 was not seen confronted with respect to the distance between KG Padi and Thazhepalam. Being so, the Tribunal ought not have jumped into conclusions, for rejecting the claim of the appellant, who suffered serious head injury in a road traffic accident. 11. The appellant was claiming Rs.1,60,000/as compensation for the injuries suffered. Ext.A4, Discharge Summary, will show that he had suffered frontal contusion, brain edema, etc. due to the accident. He was admitted in EMS Memorial Cooperative Hospital from 21.05.2006 till 02.06.2006. Ext.A7, CT Scan Report, also will show that he had suffered bilateral frontobasal hemorrhagic contusion, Interhemispheric bleed, cerebral edema etc. 12. According to him, he was a Coolie earning monthly income of Rs.7,000/-. Since there is nothing to prove his monthly income, relying on the decision **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [AIR 2011** **SC 2951]** , his notional income can be fixed as Rs.5,500/- per month, as the accident was in the year 2006. Considering the MACA 51 of 2012 8 nature of injuries and period of hospitalisation, loss of earning for 3 months as claimed by the appellant seems to be reasonable. So, towards loss of earning, he is eligible to get Rs.16,500/- (5,500X3). Towards transportation to hospital, Rs.1,000/- can be allowed and for extra nourishment Rs.1,000/- can be allowed as prayed for. For damages to clothing, Rs.500/- can be allowed and for bystander expenses @ Rs.150/- per day for 12 days of hospitalisation, he is eligible to get Rs.1,800/-. Towards treatment expenses, as per Ext.A8 Medical Bills, he is eligible to get Rs.16,861/-. 13. Towards pain and suffering, he is eligible to get Rs.15,000/-, considering the injuries suffered and period of hospitalisation. The appellant produced Ext.C1, Disability Certificate, issued by the District Medical Board of District Hospital, Manjeri, which says that the appellant was getting recurrent headache with loss of smell. Features of post traumatic headache with anosmia were there and so the disability was assessed as 3%. Since Ext.C1 was issued by the Medical Board, this Court is inclined to accept the disability reported as such. Since he was aged only 20 at the time of MACA 51 of 2012 9 accident, the multiplier applicable is 18. We have fixed his notional income as Rs.5,500/-. So the compensation for 3% disability can be assessed as Rs.35,640/- (5,500X12X18X3/100). 14. Since the Medical Board has reported that the appellant is having recurrent headache with loss of smell and features of post traumatic headache with anosmia, towards loss of amenities, this Court is inclined to Rs.3,000/- though there is no such claim from the part of the appellant. |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to<br>be drawn as<br>enhanced<br>compensation| |---|---|---|---| |Loss of earning|…|Rs.16,500/-|Rs.16,500/-| |Transportation to<br>hospital|…|Rs.1,000/-|Rs.1,000/-| |Extra<br>Nourishment|…|Rs.1,000/-|Rs.1,000/-| |Damages to<br>clothing|…|Rs.500/-|Rs.500/-| |Bystander<br>expenses|…|Rs.1,800/-|Rs.1,800/-| |Treatment<br>expenses|…|Rs.16,861/-|Rs.16,861/-| MACA 51 of 2012 10 |Pain and suffering|…|Rs.15,000/-|Rs.15,000/-| |---|---|---|---| |Compensation for<br>disability|...|Rs.35,640/-|Rs.35,640/-| |Loss of amenities|…|Rs.3,000/-|Rs.3,000/-| |Total|||Rs.**91,301**/-| |Enhanced compensation is rounded to Rs.**91,300**/-|||| 15. In the result, the appellant is entitled to get compensation of Rs.91,300/- (16,500 + 1,000 + 1,000 + 500 + 1,800 + 16,861 + 15,000 + 35,640 + 3,000). 16. The 1[st] respondent was the rider of the offending motorcycle, 2[nd] respondent was its owner and the 3[rd] respondent was the Insurer. In the appeal, the 2[nd] respondent owner was removed from the party array on the request made from the part of the appellant. The 3[rd] respondent-Insurer is admitting the Policy of the offending motorcycle during the period of accident. Since the accident occurred due to the rash and negligent riding of the motorcycle by the 1[st] respondent, its owner is vicariously liable, and since that vehicle was validly insured with the 3[rd] respondent, the Company is liable to indemnify the insured. No violation of any of MACA 51 of 2012 11 the conditions of the Policy is being proved by the Insurance Company. So the 3[rd] respondent is liable to compensate the appellant. 17. In the result, the 3[rd] respondent-Insurer is directed to deposit compensation of Rs.91,300/- (Rupees Ninety One Thousand and Three Hundred only) in the Bank Account of the appellant with interest @ 8% per annum from the date of petition till the date of deposit (except 369 days of delay in filing the appeal) within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of appellant towards Tax, balance court fee and legal benefit fund. Accordingly the appeal is allowed. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/14.06.2023.