# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MRS. JUSTICE SOPHY THOMAS WEDNESDAY, THE 31[ST] DAY OF AUGUST 2022 / 9TH BHADRA, 1944 MACA NO.2485 OF 2013**
**AGAINST THE ORDER/JUDGMENT IN OPMV 1539/2005 OF MOTOR**
**ACCIDENT CLAIMS TRIBUNAL, ATTINGAL**
## **APPELLANT/APPLICANT:**
SUNIL S/O.SIVANANDAN, CHARUVILA PUTHEN VEEDU, NEAR U.P.S. VANCHIYOOR, VANCHIYOOR (PO), ALAMCODU. BY ADVS. SRI.C.R.SIVAKUMAR SRI.S.SURESH VAMANAPURAM
## **RESPONDENTS/RESPONDENTS:**
1 A.IRSHAD A.R.MANZIL, PLACHERY, PUNALOOR (PO), PIN:691 332. 2 SHIJUKUMAR S/O.MOHANAN NAIR, ANJUPARAYIL VEEDU, MATHIRA (PO), KUMMIL, MANKODU VILLAGE, KOTTARAKKARA TALUK, PIN:691 506. 3 THE DIVISIONAL MANAGER THE NATIONAL INSURANCE CO.LTD. DIVISIONAL OFIFCE, THIRD PARTY CLAIMS DIVISION, GANDHARI AMMAN KOVIL ROAD, THIRUVANANTHAPURAM DISTRICT, PIN:695 101. BY ADV SMT.DEEPA GEORGE
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 23.08.2022, THE COURT ON 31.08.2022 DELIVERED THE FOLLOWING:
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## **SOPHY THOMAS, J.**
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M.A.C.A No.2485 of 2013
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Dated this the 31[st] day of August, 2022
## **J U D G M E N T**
The appellant herein is the claimant in OP (MV) No.1539 of 2005 on the file of Motor Accidents Claims Tribunal, Attingal. He is challenging the impugned Award dated 29.06.2013 dismissing his claim.
2. According to the appellant, on 21.04.2005 at 3 p.m, he met with a road traffic accident while he was travelling in KL-02/L3325 autorickshaw from Chenkikunnu to Kilimanoor. That autorickshaw was driven by the 2[nd] respondent in a rash and negligent manner. When it reached near Chootayil, due to the overspeed and rashness, it capsized and he fell out of the autorickshaw and sustained serious injuries. He was taken to Multi Speciality Hospital at Attingal and was treated there for fracture of ulna. He was a coolie aged 30 years earning monthly income of Rs.3,000/-. Due to the accident, he lost his earning for four months and he suffered much pain and suffering. He approached
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the Tribunal claiming compensation of Rs.1,25,000/-. But, the Tribunal came to the conclusion that the claimant could not prove that he sustained the injuries in the road traffic accident involving KL-02/L-3325 autorickshaw. The name of the driver stated by the claimant was not correct and there was nothing to show that the accident occurred due to the rash and negligent driving of the autorickshaw by the 2[nd] respondent. Hence the O.P was dismissed. Challenging the same, he has come up with this appeal.
3. Before the Tribunal, no oral evidence was adduced from
either side. Exts.A1 to A7 and B1 were marked.
4. According to the appellant, the accident occurred on 21.04.2005, while he was travelling in KL-02/L-3325 autorickshaw. Immediately after the accident, he was taken to Attingal Multi Speciality Hospital. Ext.A6, copy of the wound certificate, shows that the appellant was examined by the Doctor on the date of accident itself i.e. on 21.04.2005 at 6.10 p.m, and he was brought with the history of 'fall from autorickshaw'. The injuries noted were swelling and tenderness left elbow and forearm, pain left foot, abrasion 5x6 cm on left foot. In X-ray,
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fracture of ulna (left) upper third was also found. According to him, he was under the impression that intimation might have been given to Police from the hospital. Knowing that no such intimation was given and no case was registered, he filed Ext.A2 CMP before the Judicial First Class Magistrate Court-II, Attingal on 07.06.2005. That complaint was forwarded under Section 156(3) Cr.P.C and Ext.A1 FIR was registered against the driver of the autorickshaw. Ext.A3 is the scene mahazar and Ext.A4 is the mahazar of the offending autorickshaw. It is true that, in Ext.A4, no damages were noted on the autorickshaw. Ext.A5 charge sheet was laid before the Judicial First Class Magistrate Court-II, Attingal against Sri.Bijukumar, S/o.Mohanan Nair, Anjuparayil House, Mankodu village.
5. The learned Tribunal found that, regarding the accident, two versions are forthcoming. The first version was that, the appellant had a fall from the autorickshaw when the driver abruptly swerved the vehicle. The other version was that, due to overspeed, the autorickshaw capsized and then the appellant sustained the injuries. The Tribunal opined that, if the autorickshaw capsized, there might have been damages on the autorickshaw. But, Ext.A4 vehicle mahazar will not show any
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damages on the body of the autorickshaw. Moreover, as per the charge sheet, the driver was one Mr.Bijukumar. But, according to the appellant, the driver was Mr.Shijukumar.
6. Because of the above reasons, the Tribunal came to the conclusion that the accident was not proved, identity of the driver was suspicious, and the involvement of KL-02/L-3325 autorickshaw in the alleged accident is doubtful and hence his claim was dismissed.
7. Learned counsel for the appellant contended that, immediately after the accident, the appellant was taken to Multi Speciality Hospital, Attingal where he had stated the history as ‘fall from the autorickshaw’. On coming to know that the Police was not intimated, he filed CMP before the Magistrate Court and the Police registered a crime and investigated the case. On investigation, the Police found that the accident occurred due to the rash and negligent driving of KL-02/L-3325 autorickshaw by the driver Sri.Bijukumar and so, he was charge sheeted for the offences punishable under Sections 279, 337 and 338 of IPC.
8. It is true that, in the charge sheet, the name of the driver was shown as Sri.Bijukumar. In the O.P, the name was mistakenly stated as Sri.Shijukumar and according to the appellant, it was
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only a clerical error. On going through the address of the driver in the charge sheet as well as in the O.P, it could be seen that except the change in name, his address is same. So, there is every reason to think that the name 'Bijukumar' was mistakenly shown as 'Shijukumar' due to a clerical error, and it would have been condoned, as not material.
9. Regarding the fact that no damages were found on the body of the autorickshaw, it is not necessary that the autorickshaw might have sustained damages compulsorily. It depends upon the place where it capsized or the object to which it came into contact when it turned down. Moreover, the accident was on 21.04.2005. But the vehicle was examined on 29.06.2005 i.e after about two months. We do not know whether the owner of that autorickshaw might have made some repair works, even if the autorickshaw had sustained some damages in the accident. Though the owner and driver were served with summons, they did not appear before the Tribunal to refute the accident or the identity of the driver. It is also a circumstance to draw an adverse inference against them. So, the reasons found out by the Tribunal for dismissing the claim petition is not justifiable.
10. Now coming to the compensation part, according to the
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appellant, Ext.A6 wound certificate will show that, he had sustained fracture of left ulna and pain, tenderness and abrasion on left foot. He was hospitalised for three days as seen from Ext.A7 discharge card. According to him, he was a coolie earning monthly income of Rs.3,000/-. Going by the decision **Ramchandrappa** vs. **Manager, Royal Sundaram Alliance Insurance Company Limited** (AIR 2011 SC 2951), he was eligible to get his monthly income fixed at Rs.5,000/- as the accident was in the year 2005. But, his own case is that, his monthly income was Rs.3,000/- per month and so, he is not eligible for monthly income beyond that. From the nature of injuries suffered, he might have lost his earnings for two months. So, towards loss of earning, he is entitled to get Rs.6,000/-.
11. Since the appellant was hospitalised for three days, Rs.600/- is given towards bystander expenses and Rs.300/towards extra nourishment.
12. Towards transportation charges, Rs.500/- is allowed.
13. Towards medical expenses, Rs.1,500/- is allowed even in the absence of any medical bills in support, since the appellant was hospitalised for three days.
14. Towards pain and sufferings, Rs.5,000/- is allowed.
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There is nothing to show that, the appellant suffered any permanent disablement due to the accident. So, he is not eligible to get compensation on any other ground.
|**Head of claim**|**Amount awarded**<br>**in appeal**|
|---|---|
|Loss of earning|Rs.6,000/-|
|Bystander expenses|Rs.600/-|
|Extra nourishment|Rs.300/-|
|Transportation charges|Rs.500/-|
|Medical expenses|Rs.1,500/-|
|Pain and sufferings|Rs.5,000/-|
|**Total**|**Rs.13,900/-**|
15. In the result, the appellant is entitled to get compensation of Rs.13,900/-.
16. Ext.B1 policy certificate shows that KL-02/L-3325 autorickshaw was having an act only policy as on the date of accident. Since the appellant was a passenger in that autorickshaw, the company is liable to indemnify the owner. But, the insurer has got a case that the driver of the autorickshaw had no valid driving licence at the time of accident. The insurer filed I.A No.2511 of 2007 before the Tribunal for directing the driver to produce the driving licence, badge and other documents of the autorickshaw. Though copy was served on respondents 1 and 2,
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they did not produce any such documents. So, adverse inference was drawn against them. If the driver was not having a valid driving licence at the time of accident, the insurer is not liable to indemnify the insured as it amounts to violation of the policy conditions. But since the vehicle was having valid insurance policy, the insurer has to deposit the amount and thereafter they can recover the amount from the insured.
The 3[rd] respondent/insurer is directed to deposit the compensation amount of Rs.13,900/- in the Bank Account of the appellant with interest @ 8% per annum from the date of petition till realisation 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 the appellant towards Tax, balance court fee and legal benefit fund. After deposit, the insurer can recover that amount from the 1[st] respondent-owner and his assets.
This appeal is allowed accordingly. No order as to costs.
Sd/- **SOPHY THOMAS JUDGE**
smp
