The National Insurance Co. Ltd. v. SMT K.S SANTHI

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **WEDNESDAY,THE 13TH DAY OF FEBRUARY 2019 / 24TH MAGHA, 1940** ## **MACA.No. 1162 of 2010** **AGAINST THE AWARD IN OPMV 666/2001 of THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,PATHANAMTHITTA DATED 05-11-2009** ## **APPELLANT/S:** **THE NATIONAL INSURANCE CO LTD PATHANAMTHITTA, REP.BY ITS DEPUTY MANGER,, REGIONAL OFFICE, 2ND FLOOR,, OMANA BUILDING, M.G.ROAD, KOCHI-35.** **BY ADV. SRI.GEORGE CHERIAN (SR.) : 1 SUBHA KALLIDUKINAL HOUSE, MANGARAM, KONNI, 2 ATHIRA LEKSHMI P. KALLIDUKINAL HOUSE,MANGARAM,KONNI. 3 ANJANA LEKSHMI P. KALLIDUKINAL HOUSE,MANGARAM, KONNI,, (RES. 2 & 3 ARE MINORS AND HENCE REP.BY THEIR, MOTHER 1 ST RESPONDENT. 4 SHAJI T.S. S/O T.E.ABDUL KHADAR, THUNDIPARAMBIL HOUSE,, MANGARAM,KONNI. 5 M.A.REJI MAMMOOTTIL HOUSE, MUTHUPEZHUMKAL, VAKAYAR, KONNI. BY ADVS. SRI.R.KRISHNAKUMAR (CHERTHALA) SRI.S.MUHAMMED HANEEFF SRI.T.K.KOSHY** ## **RESPONDENT/S:** ## **SMT K.S SANTHI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13.02.2019, ALONG WITH CO.157/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA 1162/2010 ,CO.157/2018** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY,THE 13TH DAY OF FEBRUARY 2019 / 24TH MAGHA, 1940 CO.No. 157 of 2018 IN MACA. 1162/2010** **AGAINST THE ORDER/JUDGMENT IN MACA 1162/2010 of HIGHCOURT** ## **PETITIONER/S:** |**1**||**SUBHA, KALLIDUKINAL HOUSE,**| |---|---|---| |||**MANGARAM,KONNI.**| |**2**||**ATHIRA LEKSHMI. P,**| |||**KALLIDUKINAL HOUSE, MANGARAM ,KONNI.**| |**3**||**ANJANA LEKSHMI P,**| |||**KALLIDUKINAL HOUSE, MANGARAM ,KONNI.**| |||**BY ADV. SRI.T.K.KOSHY**| |**RESPONDENT/S**<br>**:**||| |**1**||**THE NATIONAL INSURANCE CO. LTD.,**| |||**PATHANAMTHITTA, REPRESENTED BY ITS DEPUTY MANAGER,**| |||**REGIONAL OFFICE, 2ND FLOOR, OMANA BUILDING,**| |||**M.G.ROAD, KOCHI-35.**| |**2**||**SHAJI.T.S,**| |||**S/O. T.E.ABDUL KHADAR, THUNDIPARAMBIL HOUSE,**| |||**MANGARAM ,KONNI.**| |**3**||**M.A. REJI,MAMMOOTTIL HOUSE, MUTHUPEZHUMKAL,**| |||**VAKAYAR, KONNI.**| **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 13.02.2019, ALONG WITH MACA.1162/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA 1162/2010 ,CO.157/2018** **3** ## **JUDGMENT** The appeal is filed by the Insurance Company alleging that the accident did not occur as has been stated before the Tribunal. The Insurance Company relies on the discrepancies in the wound certificate as also the evidence of PW1. 2. An accident, involving an autorickshaw occurred on 21.11.2000, in which one Pradeep suffered injuries; quite serious rendering him a paraplegic. He was completely bed ridden for 7 years and expired on 27.09.2007; obviously, due to the injuries suffered in the road traffic accident. The petitioners, who were the injured and his wife and after the death of the first petitioner, the minor children; contented that, the injured was travelling **MACA 1162/2010 ,CO.157/2018** **4** in the autorickshaw and the 1[st] respondent was driving the same. The Insurance Company alleged that Ext.A5 wound certificate produced by the claimants were not complete. The Insurance Company also produced Exts.B1 and B1(a). 3. Ext.B1(a) is a copy of Ext.A5. However, Ext.A5, in item No.10, where the details of injuries are recorded shows history of RTA, which is absent in Ext.B1(a). The specific contention of the Insurance Company was that Ext.B1(a) is the wound certificate, which clearly indicates that the patient (the 1[st] claimant) was driving the autorickshaw when the road traffic accident occurred. 4. True, there are two wound certificates issued from the very same hospital on the identical date and time, **MACA 1162/2010 ,CO.157/2018** **5** they are serially numbered as 10036 and 10037. Obviously, there was some confusion with respect to the accident and probably hence the wound certificate was so amended by Ext.B1(a). In any event, the fact remains that the injured was brought to the hospital unconscious and he was rendered a paraplegic. 5. There was also the question of delay in registering the crime, which occurred only by reason of the directions issued by a jurisdictional Magistrate in a private complaint. The FIR was registered on 07.06.2001 with respect to the accident, which occurred on 21.11.2000. 6. The Tribunal, on examination of the attendant circumstances found that the injured was rendered a paraplegic in the accident. The family as is seen from the **MACA 1162/2010 ,CO.157/2018** **6** array of claimants included the wife and the two minor children. The explanation of the family was also that they were under the impression that a crime was registered by the Police. Considering the nature of the injuries suffered and the condition of the only bread winner of the family, it is only probable that the wife and minor children were not aware of the fact that there was no case registered. The Tribunal in the facts and circumstances of the case found that the delay was not unreasonable and that it could be justified. This Court does not find any reason to defer from the view taken by the Tribunal on the question of delay. 7. The next question is with respect to the discrepancies noticed in the wound certificate. The wound certificate first issued showed the vehicle, which was **MACA 1162/2010 ,CO.157/2018** **7** involved in the accident having been driven by the injured himself. In fact, PW1 who is the witness to the accident also stated that the injured was an autorickshaw driver. However, there is nothing to specifically indicate that he was driving the vehicle at the time when the accident occurred. The autorickshaw was alleged to have been driven by the 1[st] respondent, who did not appear before the Tribunal at all. PW1 also had a contention in chief examination that the 1[st] respondent accompanied PW1 and one another to the hospital to which the injured was taken. On the way, it is deposed that the 1[st] respondent assured PW1 that there is no necessity for a criminal case and he would look after the injured. Obviously, the same was not done and hence a crime was registered and there was a claim petition **MACA 1162/2010 ,CO.157/2018** **8** filed before the Tribunal. Considering the facts and circumstances of the accident, this Court is of the opinion that, the version of PW1 is very credible. The driver also had not appeared to contest the same. In this context, it is to be noticed that the Insurance Company also had a case that the driver/1[st] respondent did not have a valid licence. However, the Tribunal clearly found from the records, which were produced before the Police that there was in existence a driving licence. Considering the totality of the circumstances, this Court is of the opinion that the appeal need not be entertained. The appeal would stand rejected. C.O No.157/2018 8. The legal heirs have filed a cross objection for enhancement. **MACA 1162/2010 ,CO.157/2018** **9** 9. The learned Standing Counsel for the Insurance Company points out that there is no challenge to the quantum in the appeal filed by the Insurance Company. In such circumstances, there can be no cross objection maintained for enhancement going by the decision in _**Manoj Kumar**_ v. _**Subramanian [2010(2) KLT 893]**_ . The appeal and cross objection would stand rejected. **Sd/-** **K.VINOD CHANDRAN** **JUDGE** SB/14/02/19