Salma v. Haneefa s/o Ummer; Ajo Vincent s/o Vincent; National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **WEDNESDAY, THE 27[TH] DAY OF SEPTEMBER 2023 / 5TH ASWINA, 1945** ## **MACA NO. 2937 OF 2014** ## **AGAINST THE AWARD DATED 11.07.2014 IN OPMV NO. 352/2012 ON THE FILE OF THE** ## **ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL-II, THODUPUZHA** ## **APPELLANT (PETITIONER IN O.P.(M.V): 352/2012:** SALMA AGED 50 YEARS D/O. HUSSAIN, CHOORAVELIL HOUSE, PERUMPILLICHIRA P.O., KUMARAMANGALAM VILLAGE. BY ADV SMT.ANUPAMA JOHNY ## **RESPONDENTS (RESPONDENT IN O.P.(M.V): 352/2012** 1 HANEEFA S/O. UMMER, MADHURAPPARA HOUSE, MUTHARAMKUNNU BHAGAM, PERUMPILLICHIRA KARA, KUMARAMANGALAM VILLAGE-685 608. 2 AJO VINCENT S/O. VINCENT, POTHENAMOOZHI HOUSE, AVOLI P.O., AVOLI VILLAGE, MUVATTUPUZHA-686 670. (OWNER) 3 NATIONAL INSURANCE CO. LTD. REPRESENTED BY ITS BRANCH MANAGER, THODUPUZHA-685 584. ## **OTHER PRESENT:** FOR R3 BY SC - SRI.RAJAN P.KALIYATH THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2937 OF 2014 2 ## **JUDGMENT** The appellant is the petitioner in O.P.(M.V) No.352/2012 on the files of the Additional Motor Accident Claims Tribunal-II, Thodupuzha. The said claim petition was submitted by them, seeking compensation for the injuries sustained to her when the motor accident occurred on 26.9.2011. 2. According to her, the accident occurred while she was walking through the road, she was hit by a motorcycle bearing Reg.No.KL-17C-493 driven by the 1[st] respondent in a rash and negligent manner. The said motorcycle was owned by the second respondent and was insured with the 3[rd] respondent. According to her, she sustained serious injuries due to the accident. She claims to be a rubber tapper with a monthly income of Rs.5000/-. The claim petition was submitted in such circumstances. 3. The first respondent did not appear and was set ex-parte. The second respondent even though entered appearance, did not file any written statement. The 3[rd] respondent filed a written statement admitting the coverage of policy in respect of the vehicle but disputed the accident. It was contended that the injuries MACA NO. 2937 OF 2014 3 sustained in the accident did not occur in the manner as contented in the claim petition. According to them, the appellant sustained injuries due to a fall from the motorcycle on which she was a pillion rider. The policy issued in this case was an ‘Act only’ policy, which would not take in the coverage of a pillion rider. Therefore, they sought exoneration from the liability. 4. Evidence in this case consists of Exts.A1 To A9 from the side of the appellant and from the side of the respondent Ext.B1 insurance policy was marked. After examining the materials placed on, the Tribunal passed an award, allowing a total compensation of Rs. 4,38,610/- which was recoverable with interest at the rate of 9% per annum from the date of petition till date of realization. However, the 3[rd] respondent insurance company was exonerated from the liability, as it was found that the accident occurred when the appellant was travelling on the motorcycle as a pillion rider and the vehicle was covered with an ‘Act only’ policy in which the pillion rider was not covered. Thus, the amount awarded by the Tribunal was directed to be deposited by the respondents 1 and 2. This appeal is submitted by the appellant in such circumstances, challenging the findings of the Tribunal exonerating the insurance MACA NO. 2937 OF 2014 4 company from liability and also seeking enhancement of compensation. 5. Heard Smt. Anupama Johny, learned counsel appearing for the appellant and Sri. Rajan Kaliyath, learned counsel, appearing for the 3[rd] respondent insurance company. 6. The first contention raised by the learned counsel for the appellant is regarding the finding of the Tribunal exonerating the insurance company from liability. It is seen from the records award that, for exonerating the insurance company, the Tribunal mainly relied upon the Ext.A5 wound certificate by the Hospital at Kolencherry on 26.9.2011. It is evident therefrom that the petitioner was taken to hospital by one Mohammed Mydeen, and the cause of injury was shown as “ history of road traffic accident (fall from bike) at Thodupuzha at 8.45 a.m. on 26.9.20112”. From the said entry, it was found by the Tribunal that the manner in which the accident occurred was different from what was claimed by the appellant in her claim petition. 7. However, after examining the materials on record, I find that such a finding of the tribunal is not sustainable. The crucial aspect to be noticed is that, even as per Ext. A5 wound certificate, the MACA NO. 2937 OF 2014 5 appellant was unconscious when she was brought to the hospital. Therefore, the cause of the injury must have been recorded in the wound certificate based on information furnished by the person who brought the appellant to the hospital. Therefore, without examining such a person or understanding the circumstances under which such an endorsement happened to be made in Ext.A5 wound certificate, the entry made therein could not have been relied upon to arrive at the conclusion that the accident occurred while the appellant was travelling on the motorcycle. 8. On the other hand, in Ext. A2 final report submitted in Crime No. 1667/2011 by Thodupuzha Police Station, the specific conclusion is that the accident occurred while she was walking through the road, she was hit by the motorcycle driven by the 1[st] respondent. Even though the learned counsel for the insurance company would contend that the finding in the said report cannot be accepted, as there was a delay of 15 days in registering the FIR, I am of the view that that by itself cannot be a ground to discard the contents of the same. This is mainly because despite raising such a contention, no steps have been taken by the insurance company to adduce any contra evidence by examining any of the eyewitnesses MACA NO. 2937 OF 2014 6 or the investigating officer of the crime. Therefore, as held by this Court in **New India Assurance Company Ltd v. Pazhaniammal ( 2011 (3) KLT 648)** , in the absence of any contra evidence, the conclusion arrived at by the police after conducting an investigation of the crime registered in connection with the accident, can be treated as a valid document for deciding the question of negligence. Therefore, as the 3[rd] respondent failed to adduce any contra evidence, the contents of the Ext.A2 Final Report, which is in tune with the case advanced by the appellant, can be accepted. Thus, the natural consequence of the same is that the finding entered by the Tribunal in this regard is to be set aside, and I do so. 9. When moving on to the quantum of compensation, it is seen from the records that the monthly income taken by the Tribunal is only Rs.4500/-. As per the claim of the appellant, it was Rs.5000/-. Considering the fact that the accident occurred in the year 2011, I am of the view that Rs. 5000/- is a reasonable amount and the same can be taken. The consequences of such revision would be reflected in the compensation awarded under loss of earnings, and the additional amount under this head would come to Rs.4500/-. 10. Another head which requires reconsideration is the loss of MACA NO. 2937 OF 2014 7 earning capacity consequent to the physical disability. The Tribunal had calculated the loss of earning capacity by taking the physical disability as 3%. While reassessing the compensation for loss of earning capacity with the revised monthly income, the amount under the said head would come to Rs.23,400/- ( twenty three thousand four hundred ). After deducting Rs.21,060/-, the additional amount would come to Rs.2,340/- (Rs. two thousand three hundred and forty only). Thus, the additional compensation receivable by the appellant would be Rs.6,840/- (Rs.six thousand eight hundred and forty only). Thus the total amount of compensation receivable by the appellant is re-fixed as Rs.4,45,452/- (Rs. four lakh forty five thousand four hundred and fifty two). In such circumstances, this appeal is allowed, the award dated 11.07.2018 in O.P.(M.V) 352/2012 on the files of Additional Motor Accident Claims Tribunal to Thodupuzha is hereby modified by setting aside the finding of the Tribunal exonerating the 3[rd] respondent insurance company from liability and also re-fixing the quantum of compensation as Rs.4,45,452/- (Rs. four lakh forty five thousand four hundred and fifty two). The said amount shall be deposited by the 3[rd] respondent insurance company along with MACA NO. 2937 OF 2014 8 interest at the rate as ordered by the Tribunal with proportionate costs within a period of three months from the date of receipt of the copy of this judgment. **Sd/ZIYAD RAHMAN A.A. JUDGE** ## **mus**