IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 MACA.No. 89 of 2004(C) --------------------- OPMV.217/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT(S): APPELLANT/3RD RESPONDENT -------------------------------------- THE ORIENTAL INSURANCE CO. LTD., KOTHAMANGALAM, REPRESENTED BY ITS ASST. MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) ALEXY AUGUSTINE RESPONDENT(S): CLAIMANT/2ND RESPONDENT -------------------------------------- 1. KURIAKOSES/O. KURUVILLA PAULOSE, KOMBATH HOUSE, PUNNEKKADU, KEERAMPARA, KOTHAMANGALAM. 2. K.P.GHEEVARGHESE (VIDYAN), KALARICKAL, KOTHAMANGALAM. ADV. SRI.SOORAJ ELANJICKAL FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON 11/08/2009 PASSED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. NO. 89 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of August, 2009. JUDGMENT Joseph Francis, J. This appeal is filed by the third respondent in O.P.(M.V.) No. 217 of 1999 on the file of the Motor Accidents Claims Tribunal, Muvattupuzha. Respondents 1 and 2 herein are the petitioner and the second respondent in that original petition, which was filed under Section 166 of the Motor Vehicles Act. 2. The allegation is that on 25.10.98, at about 11 p.m., the petitioner was traveling as a pillion rider in a motor cycle bearing no:KL7/C-8111 driven by the 1st respondent from Munnar town to Chokkanad estate. When that vehicle reached at Arulmani palam, due to rash and negligent driving of the first respondent, the motor cycle overturned and the petitioner sustained serious injuries. The second respondent was the owner and the third respondent was the insurer of the motor cycle. The petitioner claimed Rs.2,00,000/- as compensation. The first respondent was removed from the party array as per order in I.A. No:960/2000, as notice to the first respondent could M.A.C.A. N0: 89 OF 2004 : 2 : not be served from the Claims Tribunal. The second respondent remained ex parte. The third respondent filed written statement admitting the policy of the motor cycle and contends that the petitioner himself was driving the motor cycle and as such the third respondent is not liable to pay the compensation. 3. In the Claims Tribunal PWs. 1 and 2 and RWs. 1 and 2 were examined. Exts. A 1 to A9, B1, X1, X1(a) and X2 were marked. The Claims Tribunal, on considering the evidence, found that the accident was due to the negligence of the first respondent and awarded compensation of Rs.90,800/- together with interest at the rate of 9% per annum from the date of the petition till the date of realisation from the third respondent. Against that award, the third respondent filed this appeal. 4. Heard the learned counsel for the appellant and the learned counsel for the first respondent. 5. The learned counsel for the appellant submitted that the Claims Tribunal ought to have found that the petitioner himself was riding the motor cycle and therefore the petitioner is not entitled to get any compensation. It is well settled position of law that while considering the claim applications, the Tribunal is required to hold an M.A.C.A. N0: 89 OF 2004 : 3 : enquiry and it is not to act as a criminal court so as to find whether the claimants have established the occurrence beyond any shadow of doubt. In the enquiry, if there is prima facie evidence of occurrence, there is no reason to disbelieve such evidence. 6. Ext.X1 is the case diary relating to Crime No.196 of 1998 of Munnar police station. The photocopy of Accident Register cum wound certificate of General Hospital, Munnar is Ext.X1(a). In that wound certificate, it is stated that the alleged cause of the injury is Road Traffic Accident involving a motor bike and autorikshaw. In X1(a), it is written that the petitioner was brought to the General Hospital, Munnar by the driver of the autorikshaw bearing No. KL 6/7855. Ext.X2 is another photocopy of the wound certificate issued from the General Hospital Munnar, in which it is stated that the cause of the injury is road traffic accident involving the motor cycle bearing No. KL 7/A-4181 and autorikshaw bearing No. KL6/7855. The words 'involving motor cycle KL7/A-4181 and autorikshaw KL6/7855' is seen scored off. 7. The doctor who prepared the original of Ext.X1(a) and Ext.X2 was examined before the Tribunal as RW1. He deposed that on 26.10.98, he was working as Chief Medical Officer in Tata General M.A.C.A. N0: 89 OF 2004 : 4 : Hospital, Munnar and that the petitioner was brought to the hospital by the driver of an autorikshaw and the petitioner was not in a position to explain the details of the accident. As he had sustained serious injuries and as the petitioner was brought by the autorikshaw driver, RW1 recorded the alleged cause of injury as road traffic accident involving the motor bike and the autorikshaw. When the autorikshaw driver explained that he tried to help the petitioner, who was lying in the road after sustaining injuries as the autorikshaw is not involved in the accident, the entry in the wound certificate was struck off by him and it was attested by him then and there. There is no reason to disbelive the testimony of the RW1 with regard to this aspect. 8. The petitioner was examined as PW1. He swears that the accident occurred on 25.10.98 at 11.15 pm while he was travelling in a motor bike as pillion rider, which was driven by the first respondent. PW1 deposed that the accident was due to the rash and negligent driving of the first respondent, who was driving the motor cycle. Ext.A1 is the copy of the F.I.R. in Crime No.196 of 1998 of Munnar police station registered against the first respondent with regard to the accident involving the motor cycle bearing No:KL7/C-8111. Ext.A2 is M.A.C.A. N0: 89 OF 2004 : 5 : the copy of the scene mahazar and Ext.A3 is the copy of AMVI report in respect of vehicle KL7/C-8111. Ext.A4 is the charge sheet in C.C No.344 of 1998 on the file of J.F.C.M., Devikolam. In that case, the first respondent was implicated as the accused for the offences punishable under Sections 279 and 338 I.P.C. 9. In the decision reported in Machindranath Kernath Kasar Vs. D. S. Mylarappa and others (2008 A.C.J. 1964 SC), it was held that “however driver is not a necessary party and in his absence the entire proceedings shall not be vitiated as the owner is there as joint tortfeaser. Therefore, the non - impleadment of driver in this appeal is not fatal. “ 10. Since the testimony of PW1 with regard to the accident is corroborated by records, we are of the view that the Tribunal is perfectly justified in finding that the accident was due to the rash and negligent driving of the first respondent, who was driving the motor cycle. 11. The appellant does not challenge the quantum of compensation awarded by the Tribunal. Ext.A5 is the Accident Register cum wound certificate issued from the General Hospital, M.A.C.A. N0: 89 OF 2004 : 6 : Munnar stating that due to the accident, the petitioner sustained the following injuries. “abrasion forehead (L) side and left cheek, abrasion (L) 2nd and 3rd toe, fracture ( R) femur, (shortening of (R ) lower limb with swelling of (R) thigh. Ext.A6 is the discharge certificate issued from St.Joseph's Hospital, Kothamangalam. It shows that the petitioner was admitted to that hospital on 26.10.1998 and treated for comminuted fracture femur middle 3rd and that he was advised rest from 20.10.1998 to 26.3.1999. Ext.A7 is the discharge card issued from St.Joseph's Hospital, Kothamangalam. It shows that the injured was referred from Tata Tea Hospital, Munnar with the alleged history of road traffic accident that he was treated with open reduction and inter locking nailing that he was admitted on 26.10.1998 and was discharged on 21.11.1998. Ext.A8 is the disability certificate issued by an Orthopaedic Surgeon of St.George Hospital, Muvattupuzha. The certificate is to the effect that the injured has sustained permanent disability estimated at 10%. The doctor, who issued the Ext.A8 was examined as PW2. He deposed that the injured has limbing on right side that he has difficulty for squatting and that there was waisting of muscles. Ext.A9 series are bills relating to the treatment for a total sum of Rs.22,800/-” 12. PW1 deposed that he was employed as a Supervisor and was getting Rs.3,000/- per month. Since no document was produced by the M.A.C.A. N0: 89 OF 2004 : 7 : petitioner, his monthly income was taken as Rs.1,500/- by the Tribunal. The petitioner was aged 32 years. Rs.7,500/- was awarded towards loss of earnings for five months. The Tribunal awarded Rs.22,000/- towards medical expenses based on Ext.A9 series of medical bills. Rs.15,000/- was awarded towards compensation for pain and sufferings. Rs.10,000/- was awarded towards compensation for loss of amenities in life. Rs.30,000/- was awarded towards compensation for permanent disability. The 1st respondent has no case that the compensation awarded is on the lower side. Since the Tribunal awarded reasonable compensation, we find no reason to interfere with the compensation awarded by the Claims Tribunal. The result is that this appeal has to be dismissed as it is without any merit. Accordingly this appeal is dismissed. The award in OP(MV) 217 of 1999 on the file of M.A..CT., Muvattupuzha is confirmed. The parties are directed to suffer their respective cost in this appeal. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/