M.A.C.A. No. 442 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 19TH DAY OF JUNE 2013/29TH JYAISHTA 1935** ## **MACA.NO. 442 OF 2013 ()** **-----------------------------------O.P(MV) NOL975 OF 2005 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THALASSERY** ## **APPELLANT-1ST RESPONDENT:** **-----------------------------------------------** **K. RAJANEESH KUMAR, S/O.CHANDRASEKHARAN KANIYANGANDY HOUSE (SAVITHRI NIVAS), MORAZHA AMSOM KADAMBERI DESOM, P.O.KANOOL, KANNUR DISTRICT.** **BY ADV. SRI.M.V.AMARESAN** ## **RESPONDENT-PETITIONER:** **-----------------------------------------** **M.N. SHAJI, S/O.V.N.RAVEENDRAN, DRIVER, PRASANNALAYAM P.O.KOTTALI, KANNUR DISTRICT, PIN - 670 016.** **RR-R1 BY ADV. SRI.C.P.PEETHAMBARAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== M.A.C.A. No.442 of 2013 ==================================== Dated this the 19[th] day of June, 2013** ## **J U D G M E N T** This appeal arises from the award dated 31.10.2012 in O.P (MV) No.975 of 2005 of the Motor Accidents Claims Tribunal, Thalassery allowing the respondent to recover `29,150/- with interest at the rate of 7.5% per annum from the date of application till realization and proportionate costs. Though the Insurance Company was impleaded in the claim petition, it was conceded that the offending vehicle was not having insurance at the relevant time and hence the Tribunal has exonerated the Insurance Company. 2. According to the respondent, on 18.09.2004 while he was walking along the side of the road the Scooter which belonged to the appellant hit him. He alleged that the accident occurred due to the rashness and negligence of the appellant. He also claimed that he suffered injuries in the accident and claimed compensation on various heads. 3. The appellant denied that there was any accident involving the Scooter which he was riding at the relevant time. He **M.A.C.A No.442 of 2013** -: 2 :- denied the various claims the respondent made in the application. 4. The respondent gave evidence as P.W1 and proved Exts.A1 to A6 series. P.W.2 is the Medical Officer, who issued Ext.A3, certificate. The appellant gave evidence as R.W.1 and denied that there was any accident involving the Scooter which he was riding. He proved Exts.B1 and B2, report of the AMVI and body mahazar of the motor cycle. 5. The learned counsel for the appellant has contended that there was not only no sufficient description regarding the accident in the claim petition but no sufficient evidence to support the plea of accident. It is contended that though the (alleged) accident occurred on 18.09.2004, Ext.A1, FIR was registered only on 04.03.2005 based on a private complaint which the respondent preferred almost six months after the (alleged) date of accident. It is argued that Ext.A3, certificate issued from the AKG Memoriam Hospital on 22.03.2005 being a few months after the alleged date of the accident, cannot be accepted. Learned counsel submitted that the Tribunal has proceeded on the strength of Ext.A4, proceedings of the learned Judicial First Class Magistrate-I, Kannur in STC No.1398 of 2005 **M.A.C.A No.442 of 2013** -: 3 :- revealing that the appellant had pleaded guilty to the charge submitted against him. It is argued that finding of the criminal court is not evidence before the Tribunal. Reliance is placed on the decisions in **Oriential Insurance Co. Ltd. v. Mohammed Hussain and Another** (2009 ACJ 2468) and **Geeta Devi and Another v. Rajesh and Others** (2011 ACJ 279). Learned counsel has also contended that compensation awarded by the Tribunal is exorbitant and calls for interference. 6. The learned counsel for the respondent supported the findings of the Tribunal. It is argued that the fact that appellant has pleaded guilty to the charge made against him by itself is sufficient to prove the accident. It is further argued that having regard to the injuries the appellant suffered, interference is not required with the compensation awarded. 7. Since the accident is denied, it is for the respondent to prove the same. According to the respondent while he was walking along the road he was hit by the motor cycle which the appellant was riding. In the chief affidavit he stated that he was walking along the margin of the road. One argument the learned counsel for the appellant has advanced is that there is no acceptable evidence regarding the exact spot of the accident and **M.A.C.A No.442 of 2013** -: 4 :- Ext.A2, mahazar for scene of accident was prepared only after 04.03.2005. 8. In Ext.A2, the accident spot is stated to be the western tar end. The document states that the accident spot is identified as pointed out by the respondent. Exhibit A2 is not challenged by the appellant by examining the officer who has prepared it. Notwithstanding that the accident (allegedly) occurred on 18.09.2004 and Ext.A2 prepared on 05.03.2005, the spot of accident as shown in Ext.A2 should stand in the absence of the appellant examining the officer who prepared it and disproving the facts stated therein. 9. So far as the accident is concerned, it is true that though it (allegedly) occurred on 18.09.2004, Ext.A1, FIR was registered only on 04.03.005 based on a private complaint filed about six months after 18.09.2004. But Ext.A4 shows that the police after investigation found that the accident occurred on 18.09.2004 due to the negligence of the appellant and charge sheeted him for offences punishable under Sections 279 and 338 of the Indian Penal Code and Sections 134 read with 187 and 146 read with 196 of the Motor Vehicles Act. 10 I must notice that the appellant did not examine the **M.A.C.A No.442 of 2013** -: 5 :- officer who investigated the case and submitted that final report to show that the finding he has made in the final report is not correct. Of course I do not forget that a final report in a criminal case is only an accusation made by the Investigating Officer. But the fact that the police after a thorough investigation found that accident occurred on 18.09.2004 and that was due to the negligence of the appellant is a factor to be taken into account. 11. Exhibit A4 shows that to the charge as above stated, the appellant pleaded guilty and thereon he was convicted and sentenced. The appellant has an explanation that it was under a wrong advice that he pleaded guilty. But I must bear in mind that the appellant is a Medical Officer and not a layman so that, he was misguided by somebody to plead guilty when according to him, no accident involving his Scooter has occurred. 12. The decisions the learned counsel has relied on have no application to the facts of the case. There, what is held is that findings of the criminal court are not binding in the civil proceedings. Here it is not the finding of the criminal court that is relevant. What is relevant in this proceeding is the fact that the appellant had pleaded guilty to the charge levelled against him. The appellant cannot easily get out of his pleading guilty to the **M.A.C.A No.442 of 2013** ## -: 6 :- charge against him. 13. I must also notice that it is not a total denial of the accident. In paragraph 4 of the chief affidavit of the appellant he stated that on 18.09.2004 he was proceeding towards his clinic riding the Scooter (allegedly) involved in the accident, at a very slow speed, complying with the traffic regulations, along the left side of the road. When he reached near Kottali Post Office (which is made mention in Ext.A2, scene mahazar also) the respondent, without caring for the vehicles going along the road attempted to cross the road, got perplexed by the vehicles coming along the road, lost balance, fell on the road and suffered injuries. That version of the appellant appears to be quite unacceptable. Moreover, there is Ext.A4, where the appellant has pleaded guilty to the charge in the criminal case. In the circumstances the mere fact that immediately after the accident a case was not registered would not stand in the way of the Tribunal finding that the accident occurred involving the vehicle which the appellant was riding. 14. The learned counsel then argued that apart from the evidence of the respondent no independent evidence is adduced. Even in the absence of independent evidence the facts and **M.A.C.A No.442 of 2013** -: 7 :- circumstances which I have stated above are sufficient to conclude that the accident occurred involving the Scooter the appellant was riding. 15. Then the next question is whether the appellant was negligent in riding the motor cycle? I stated from Ext.A2 that the accident spot is the western tar end. May be in the claim petition the respondent has stated that the accident occurred on the road. But slight discrepancy in the pleadings and evidence is not sufficient to discard the version of the respondent. I must also notice that even where there is some doubt regarding the cause of accident, benefit of that doubt must go to the injured having regard to the defect of the legislation. Exhibit A2 shows that tar portion of the road has width of 3.75 metres. That means, had the appellant exercised due care and caution he could have avoided the accident. There is no acceptable evidence to show that there was any negligence on the respondent. In the circumstances finding of the Tribunal that the accident occurred due to the negligence of the appellant should stand. 16. That takes me to the compensation payable to the respondent. Exhibit A5 is the discharge summary issued on 20.09.2004 which states that the appellant was admitted in the **M.A.C.A No.442 of 2013** -: 8 :- hospital on 18.09.2004. Exhibit A3 is the certificate proved through R.W2. Exhibit A3 states that the respondent had suffered multiple abrasions over right side of face, contusion left wrist and right thigh and fracture of scaphoid left. The respondent underwent inpatient treatment for three days. 17. Exhibit A3 also came under heavy challenge at the instance of the appellant. The argument is that the said certificate was issued only on 22.03.2005. But I must notice from Ext.A4 that the police after investigation found that due to rash and negligent conduct of the appellant respondent suffered grievous hurt as is evident from the fact that Sec.338 of the IPC is also incorporated in the final report. I referred to Ext.A5 which shows that respondent was admitted in the hospital on 18.09.2004 and discharged on 20.09.2004. There is no case or evidence that the respondent suffered fracture of scaphoid after the accident on 18.09.2004. Therefore the fracture could be referred to the accident on 18.09.2004. 18. The respondent claimed that he is driver by occupation, aged 38 years at the relevant time. True that he did not produce the driving licence but his claim was only that he was engaged as a driver which the Tribunal has accepted. His **M.A.C.A No.442 of 2013** -: 9 :- monthly income was taken as `3,000/- which having regard to the occupation cannot be said to be excessive. 19. Compensation awarded for loss of earnings is only for three months. Having regard to the injury suffered which included a fracture, it is likely that the respondent who was a driver was not able to do work for three months. The special damages awarded on other heads is quite reasonable having regard to the nature of the injuries the respondent has suffered and the inpatient and outpatient treatment. 20. So far as general damages is concerned, `10,000/- is awarded for pain and suffering and `5,000/- is awarded towards loss of amenities of life. Though a contention is raised that it is excessive, I do not think that the compensation awarded on those counts is excessive as to call for interference. It is settled law that so far as award of compensation is concerned the appellate court need interfere only when compensation awarded is alarmingly low or is exorbitantly high. Having gone through the nature of injuries the respondent has suffered and other relevant facts and circumstances, I find that the compensation awarded is reasonable and requires no interference. **M.A.C.A No.442 of 2013** -: 10 :- 21. No other point arise for consideration. The appeal fails and it is accordingly dismissed. No costs. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv