Shaji.K.P v. Harish H and The Branch Manager, National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 27TH DAY OF JUNE 2013/6TH ASHADHA, 1935** ## **MACA.NO. 376 OF 2012 ()** ## **----------------------------------O.P(MV) NO.45 OF 2005 ON THE ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA** **APPELLANT(S)/APPELLANT: -----------------------------------------** ## **SHAJI.K.P S/O.PEERUMOIDEEN, ALANKARETH THEKKUM MURI VEEDU KULASEKHARAPATHY, PATHANAMTHITTA.** **BY ADVS.SRI.T.K.KOSHY SRI.N.BABU VARGHESE SMT.V.V.RISANI** ## **RESPONDENTS/RESPONDENTS:** **-----------------------------------------------** ## **1. HARISH.H** **S/O.HALEEL, KAKKARETHU HOUSE, ANAPPARA PATHANAMTHITTA.** ## **2. THE BRANCH MANAGER NATIONAL INSURANCE CO.LTD., PATHANAMTHITTA.** **R2 BY ADV. SMT.RAJI T.BHASKAR BY SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== M.A.C.A. No.376 of 2012 ==================================== Dated this the 27[th] day of June, 2013** ## **J U D G M E N T** The 1[st] respondent is served. The 2[nd] respondent appears through counsel. 2. The appeal arises from the award dated 17.06.2011 in O.P(MV) No.45 of 2005 of the Additional Motor Accidents Claims Tribunal, Pathanamthitta (for short, “the Tribunal”) The appellant, a police constable at the relevant time claimed that on 29.09.2004 at about 2.30 a.m. while he was returning home riding his motor cycle after duty, the motor cycle belonging to and ridden by the 1[st] respondent hit him. He fell down and suffered injuries. He claimed compensation from respondents 1 and 2. 3. The 1[st] respondent remained absent in the Tribunal. The 2[nd] respondent-insurer of the motor cycle belonging to the 1[st] respondent denied that there was any accident as pleaded by the appellant. The Tribunal fixed compensation payable to the appellant at Rs.88,500/- but dismissed the application on the finding that the accident pleaded by the appellant is not proved. That award is under challenge in this appeal. **M.A.C.A No.376 of 2012** -: 2 :- 4. The learned counsel for the appellant has contended that the Tribunal has taken a hypertechnical approach while assessing evidence let in by the parties. Realities of the situation was not taken into account. There was no reason to disbelieve the evidence of P.Ws.1 and 2. It is submitted that the Tribunal has started with an initial distrust of P.Ws.1 and 2. At any rate even if there was some doubt regarding the cause of accident, its benefit should have been gone to the appellant. Reliance is placed on the decision in **N.K.V. Bros. (P) Ltd. v. M. Karumal Ammal and Others** ([1980] 3 SCC 457). 5. The learned counsel for the 2[nd] respondent contended that there are discrepancies and improbabilities in the case and evidence of the appellant which is not explained satisfactorily and hence dismissal of the claim petition is justified. 6. It is the case of the appellant as pleaded in the claim petition and his evidence as P.W1 that he was riding a motor cycle from West to East at the relevant time. When he reached the accident spot, a Maruti Car came from his opposite side. The motor cycle belonging to and ridden by the 1[st] respondent which came from behind the Maruti Car overtook that Car and hit the motor cycle the appellant was riding. Thereon he fell down and **M.A.C.A No.376 of 2012** -: 3 :- sustained injuries. He was first taken to the Muthoot Hospital at Pathanamthitta where he was given first aid and from there, he was taken to the Pushpagiri Hospital, Thiruvalla for better treatment. He remained in that hospital for 8 days. P.W.2 is the driver of the Maruti Car and supported version of the appellant. He claimed that immediately after the accident the offending motor cycle sped away. He chased that motor cyclist but could not apprehend him. Thereafter he came back to the accident spot. By that time the appellant was removed to the hospital. 7. Exhibit A1 is the copy of first information statement and first information report in crime No.742 of 2004 of the Pathanamthitta Police Station. First information was given by father of the appellant on 01.10.2004 and following that, the case was registered. Exhibit A2 is the copy of mahazar for scene of occurrence. Exhibits A3 and A4 are the mahazars for the vehicles (allegedly involved in the accident). Exhibit A5 is the copy of report of the AMVI and Ext.A6 is the copy of the final report in crime No.742 of 2004 where the 1[st] respondent was charge sheeted for causing accident by rash and negligent driving of the motor cycle belonging to him. It is said that the 1[st] **M.A.C.A No.376 of 2012** -: 4 :- respondent appeared in the criminal court and pleaded guilty and thereon he was convicted and sentenced as evidenced by Ext.A11, judgment dated 02.03.2005 in C.C. No.74 of 2005. 8. The 2[nd] respondent examined R.Ws.1 and 2. R.W.1 had retired from the Police Department by the time he was examined. He was the Sub Inspector of Pathanamthitta Police Station at the relevant time and registered the case under the head “motor occurrence”. He stated from Ext.A1, first information statement (given by the father of the appellant) that the version given therein is that the motor cycle which the appellant was riding somehow overturned. It is also the version of R.W.1 that the appellant was initially brought to the Muthoot Hospital, Pathanamthitta where he was given first aid and then taken to the Pushpagiri Hospital. According to R.W.1, it is possible that when the accident victim is brought to a hospital, a wound certificate is prepared in that hospital (no such wound certificate from Muthoot Hospital is produced in the case). R.W1 stated that since he obtained certificate from the Pushpagiri Hospital, he did not go for a medical certificate from the Muthoot Hospital. R.W.2 is a police constable of the Pathanamthitta police station. He recorded first information statement of the father of **M.A.C.A No.376 of 2012** -: 5 :- the appellant. He stated that at the time of recording the first information statement the appellant was in unconscious state at Pushpagiri Hospital, Thiruvalla. 9. The Tribunal found suspicious circumstances in the case and evidence of the appellant. The Tribunal opined that if any such accident involving two motor cycles had occurred, there would have been heavy damage on the motor cycles but the offending motor cycle was not having any damage. A further fact the Tribunal took into account is failure to produce document from the Muthoot Hospital to show that the appellant was first admitted in that hospital and what his first version was. P.W2 was disbelieved for the reason that his version that immediately after the accident he chased the motor cyclist (1[st] respondent) rather than attending to the accident victim, failed in apprehending the 1[st] respondent and thereon he returned to the place of accident cannot be believed. The evidence R.Ws1 and 2 was looked with suspicion obviously for the reason that they are police officials and the appellant also is a police constable. 10. I am inclined to think that the approach of the Tribunal to the whole situation is erroneous. It appears that the Tribunal **M.A.C.A No.376 of 2012** -: 6 :- has approached the case of the appellant with an initial distrust. So too, as regards the evidence of P.W2 and R.Ws.1 and 2. There is no reason to think that because the appellant is a police constable, respondents 1 and 2 have not spoken the truth. 11. True that instead of attending the accident victim P.W2 went after the 1[st] respondent. Conduct of different persons placed in same situation would be different. That depends on the situation as well. Possibly, P.W2 had the apprehension that if he remained at the spot, he may be called upon to answer a charge for rash and negligent driving and causing the accident. Though it is public duty to attend the accident victim and report the matter to the police, seldom one finds adherence to that duty. Reasons may be various. The evidence of P.W2 cannot be brushed aside. 12. So far as R.Ws.1 and 2 are concerned, they are not witnesses to the alleged accident. Failure to get a certificate from the Muthoot Hospital is of no consequence. For, it is not even clear whether there was any document in that hospital showing that the appellant was brought there and given first aid. It is also not clear whether the appellant was conscious when he was taken to that hospital. According to the appellant, he was given first **M.A.C.A No.376 of 2012** -: 7 :- aid. Necessarily that has happened in the casualty ward of that hospital. The appellant had sustained serious injuries as revealed by the documentary evidence. In such a situation the medical officer or other staff of Muthoot Hospital may have been concerned with the life of the victim rather than complying with the formalities of preparing a wound certificate. They might have given first aid to the appellant and referred him to a major hospital. 13. Much reliance was placed by the Tribunal on Ext.A1, first information statement and the first information report. That statement was given by the father of the appellant who admittedly was not a witness to the alleged accident. The Tribunal would say that since the first information statement was given on 01.10.2004 (the accident was on 29.09.2004) the first informant would have made some enquiry as to the cause of the accident. 14. It is revealed from the evidence that even on the day the father was giving statement to the police, the appellant was remaining unconscious at the Pushpagiri Hospital. It is clear that the father had not collected information from the appellant as to the cause of accident. There is no evidence to show that the **M.A.C.A No.376 of 2012** ## -: 8 :- father of the appellant had contacted any witness to the accident and got information before giving a statement to the police. The statement of the father in the first information statement that somehow the accident occurred is not fatal and at any rate, not binding on the appellant. 15. I must also notice that the police conducted a thorough investigation and came with a charge sheet against the 1[st] respondent for rash and negligent driving. It is relevant to note from Ext.A11 that the 1[st] respondent pleaded guilty to the charge against him. Assuming that judgment of the criminal court is not evidence in the Tribunal that the 1[st] respondent pleaded guilty to the charges against him can be relied on by the Tribunal and for that limited purpose, Ext.A11 can be looked into. 16. The learned counsel for the 2[nd] respondent has argued about the possibility of collusion between the appellant and 1[st] respondent. Apart from merely suggesting so, there is no evidence on record to conclude so. A mere plea of collusion is not sufficient. 17. The Tribunal observed that had any collision occurred, there would have been heavy damage on the motor cycles. The evidence revealed that there was damage on the motor cycle **M.A.C.A No.376 of 2012** -: 9 :- which the appellant was riding though not that much heavy. Such damage could not be found on the motor cycle which the 1[st] respondent was riding. But that vehicle was inspected only a month after the accident. Moreover, it is not absolutely necessary that when two motor cycles collide there must be heavy damage on the vehicle. 18. I must notice the trend of the decisions as regards doubt if any concerning the cause of accident. The Supreme Court in the above cited decision says that the Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Except in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. I am inclined to think that what the Tribunal ought not have done as the Supreme Court has said was done by the Tribunal in this case. The Tribunal has gone after mystic maybes, niceties and technicalities and as I stated, has viewed the evidence let in by the appellant with an initial distrust not to say about approaching the evidence of R.Ws.1 and 2 in that way. **M.A.C.A No.376 of 2012** -: 10 :- 19. Having heard the learned counsel on both sides and considered the evidence I find no difficulty in holding that the appellant suffered injuries in the accident on 29.09.2004 involving the motor cycle which he was riding and the motor cycle which the 1[st] respondent was riding. 20. Then the question is whether there is negligence on the part of the 1[st] respondent? In Ext.A2, mahazar for scene of occurrence which should stand (as it is not discredited by evidence) lie of the road is as East-West. The appellant was going from West to East while the 1[st] respondent was riding the motor cycle from East to West overtaking a Maruti Car which was proceeding towards west from the same direction. In Ext.A2, width of the tar portion is given as 5.96 metres. The accident spot is described as 1.88 metres South of the northern tar end. 21. Since the appellant was riding the motor cycle from West to East, the northern half is his correct side. The accident occurred well within the northern half of the tar portion which is the correct side of the appellant. It follows that the motor cycle which the 1[st] respondent was riding had gone to the extreme wrong side and hit the motor cycle which the appellant was riding. The 1[st] respondent has no explanation for that. That is sufficient **M.A.C.A No.376 of 2012** -: 11 :- to hold that the accident occurred due to the negligence of the 1[st] respondent. 22. So far as compensation payable is concerned, the Tribunal fixed it at Rs.88,550/-. Though there is challenge regarding that at the instance of the appellant, having gone through the award I do not find reason to interfere with that. The appellant is entitled to get interest on the said amount which is fixed at 7.5% per annum from the date of application till recovery. The appellant is also entitled to get his proportionate costs in the Tribunal. Resultantly the appeal is allowed as under: (i) Finding of the additional Motor Accidents Claims Tribunal, Pathanamthitta in O.P(MV) No.45 of 2005 that the accident is not proved is set aside. (ii) It is found that the appellant sustained injuries in the accident as pleaded by him and that the accident occurred due to the negligence of the 1[st] respondent. (iii) The appellant is allowed to recover Rs.88,550/(Rupees Eighty eight thousand, five hundred and fifty only) with ## **M.A.C.A No.376 of 2012** -: 12 :- interest at the rate of 7.5% per annum from the date of application till recovery and proportionate costs in the Tribunal from respondents 1 and 2. (iv) The 2[nd] respondent is directed to deposit the amount in the Tribunal within two months from this day. (v) Parties shall suffer their costs in the appeal. ## **THOMAS P. JOSEPH, JUDGE.** vsv