Kerala High Court
Sunil vs A.Irshad on 31 August, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
WEDNESDAY, THE 31ST 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:
MACA No.2485 of 2013 2
SOPHY THOMAS, J.
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M.A.C.A No.2485 of 2013
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Dated this the 31st day of August, 2022
JUDGMENT
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/L-
3325 autorickshaw from Chenkikunnu to Kilimanoor. That
autorickshaw was driven by the 2nd 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
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 2nd 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,
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
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
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
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.
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
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,
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 3rd 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
