IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 MACA.No. 1972 of 2005() ----------------------- OPMV.3327/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT: APPELLANT/PETITIONER: ----------------------------------- N.J. JOSEPH, AGED 45 YEARS, SON OF JOB, NADUVILA PARAMBIL HOUSE, CHERANELLOOR P.O. BY ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SMT.NITHYA.K. SMT.MANJUSHA MOHANDAS RESPONDENTS: RESPONDENTS: --------------------------- 1. K.G. JACOB, 18/731, KALLYANA PARAMBIL HOUSE, MUNDAMVELI. 2. ORIENTAL INSURANCE COMPANY LIMITED, MATTANCHERRY. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 1972 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd September, 2011 JUDGMENT Basant J., The claimant is the appellant. He claimed compensation for personal injuries suffered by him in a motor accident, which took place on 7.1.1997 at 11.30 p.m. He, a person aged 37 years, a motor mechanic by avocation was allegedly travelling in a scooter as a pillion rider along with his brother-in-law, who was allegedly riding the scooter. On account of the negligence of his brother-in- law, who was the rider-cum-owner of the scooter, the scooter hit against the median in the middle of the road. The appellant/claimant fell off the vehicle and allegedly suffered grievous injuries. According to the appellant, the accident occurred on account of the rashness and negligence of the rider of the M.A.C.A. No. 1972 of 2005 :2: scooter, who was none other than his own brother-in-law. The accident occurred on 7.1.1997. He was admitted in the hospital on the same day. He continued as inpatient till 13.1.1997. No prompt complaint was filed before the police. After his discharge, he approached the learned Magistrate with a private complaint and that complaint was referred to the police for investigation. Thereafter Ext.A1 F.I.R was registered by the police. The police conducted investigation. Ext.A4 is the scene mahazar prepared after conducting the investigation. The police accepted the case of the appellant and filed Ext.A3 final report/ charge sheet. In that, the first respondent was indicated as an accused alleging offence punishable under Section 279 and 338 of IPC against him. The appellant had allegedly suffered multiple injuries. CT scan showed brain oedema, coronal diastatic fracture and (L) frontoparietal extra dural haematoma. There was an open dislocation of proximal interphalangeal joint of ® little toe. He was discharged from the hospital on 13.1.1997. He continued the treatment. He was earning a monthly income of Rs.3,500/- per month. He was allegedly M.A.C.A. No. 1972 of 2005 :3: unable to pursue his avocation till 12.4.1997. These facts are seen certified in Ext.A7, certificate issued by his employer. 2. Respondent No.1 (owner-cum-rider) did not appear before the Tribunal. The second respondent Insurer alone contested the matter. After obtaining the requisite leave/permission under Section 170 of the Motor Vehicles Act, the Insurance Company contended that the accident did not take place in the manner alleged by the appellant. The accident was admitted. Insurance coverage was admitted. That the appellant had suffered injuries was also admitted. However, the Insurance Company raised a contention that the accident did not take place in the manner alleged by the appellant. They contended that the appellant was riding the scooter and on account of his negligence, he met with the accident. In support of this theory, the Insurance Company relied on the fact that a prompt complaint was not filed and the complaint was filed long later on 31.1.1997, as a private complaint before the Magistrate. The Insurance Company further relied on the circumstance that the first respondent is not proved to have suffered M.A.C.A. No. 1972 of 2005 :4: any injuries. 3. During trial, the appellant was examined as PW1. A witness who had allegedly witnessed the occurrence was also examined as PW2. Exts.A1 to A8 were marked. On the side of Insurance Company only Ext.B1, Policy of Insurance was marked. Ext.A3 charge sheet/final report reveals that the police after investigation had come to the conclusion that the accident had taken place in the manner alleged by the appellant. The charge sheet Ext.A3 at one place shows that the offence was under Section 279 and Section 337 of IPC. But at the place where the allegations are made, it is stated that the charges are under Section 279 and 338 of IPC. 4. The Tribunal on an anxious consideration of all the relevant circumstances was not persuaded to accept and act upon the oral evidence of Pws 1 and 2. The fact that the police after due investigation had filed a final report Ext.A3, confirming the allegations raised by the appellant, was also not reckoned by the Tribunal as a relevant and crucial circumstance. Accordingly the M.A.C.A. No. 1972 of 2005 :5: Tribunal proceeded to dismiss the claim petition. 5. Before us, the learned counsel for the appellant/ claimant and learned counsel for the respondent/ Insurance company advanced their arguments. The important question to be decided is whether the oral evidence of PWs 1 and 2 can be accepted and acted upon. If on that question we would disagree with the learned Tribunal, the further question will have to be considered, as to what is the compensation payable. 6. We have anxiously considered all the relevant circumstances. PW1 is the injured/appellant and PW2 is the person who claims to have witnessed the occurrence. First respondent is none other than the brother-in-law of the claimant. The Tribunal was guided by two crucial circumstances, i.e., that there was no prompt complaint and that the first respondent is not proved to have suffered any injuries. 7. We have rendered our anxious consideration to all the relevant inputs. The oral evidence of PWs 1 and 2 do support the case of the claimant. Ext.A3 final report submitted by the police M.A.C.A. No. 1972 of 2005 :6: after due investigation offers support and corroboration for the version of PWs 1 and 2. 8. We must remind ourselves that the police is also part of the criminal justice delivery system. The investigation officer had filed the charge sheet after due investigation. Normally and ordinarily the presumption of prudence permitted under Section 114 of the Evidence Act that ought to be drawn is that an appropriate and correct investigation must have been conducted. It is only a rebuttable presumption. Courts do entertain doubts and reservations about the truth and honesty of the investigation on several occasions. But that is no the reason for a Court to approach the conduct of the police under all circumstances with any amount of suspicion. In the instant case even after Ext.A3 was marked, no attempt was made by the respondent in any way to challenge the veracity and acceptability of the investigation conducted by the police. We need only mention that the oral evidence of PW1 is supported by the oral evidence of PW2 and together their evidence is supported by the assurance from Ext.A3 final report filed by the M.A.C.A. No. 1972 of 2005 :7: police. 9. It is of course true that there is a delay in filing the complaint. We have gone through the crucial inputs. The appellant/ injured was none other than the brother-in-law of the first respondent. Normally in such an accident, no reasonable person would expect the appellant to run to nearest police station and lodge a complaint. He had suffered serious injuries also. Even otherwise, ordinarily and normally it is a very crucial decision for a pillion rider to lodge a complaint against the rider who was carrying him on the motor cycle. In the instant case the first respondent is none other than the brother-in-law of the claimant. Even if the entire allegations were true, some reluctance on the part of the appellant to make a formal police complaint against the first respondent, his brother-in- law is understandable. Broad probabilities have to be taken note of. It would be totally incorrect to approach the claim of the appellant with distressed and suspicion solely on the basis of such delay in filing the complaint. Road traffic accident was reported to the Medical officer and an injured is justified in M.A.C.A. No. 1972 of 2005 :8: expecting that necessary report shall be made by the Doctor to the police officer. To sum up, we do not think that it would be prudent to draw any adverse inference against the present version of the appellant, solely on the basis of the delay in lodging the complaint. 10. We have looked into the nature of the allegations raised to the doctor in Ext.A4 would certificate, 'fall from motor cycle' is the allegation. PW1 was not pointedly cross examined with reference to this prior statement. The matter was discussed at the bar. If the rider and pillion rider of the motor cycle were there on the motor cycle and motor cycle hits against the median, it is possible that the pillion rider may fall off the motor cycle and may suffer injuries. That statement is not incongruent to the claim of the claimant. In these circumstances, the statement in Ext.A4 to the Doctor that the appellant had suffered injuries on account of a 'fall from the motor cycle' does not also clinch the issue. 11. PW2 was identified and accepted by the police as an eye witness to the occurrence. He was cited as an eye witness in Ext.A3 final report/charge sheet. We have carefully gone through the M.A.C.A. No. 1972 of 2005 :9: evidence of PWs 1 and 2 in detail. We do not find any serious incongruity brought out in the course of cross examination. 12. The other circumstance relied on by the learned counsel for the respondent/Insurance Company is that the rider is not shown to have gone to the hospital to take treatment. We are afraid the said circumstance cannot be given undue importance. In an accident like this, if the rider did not suffer any such serious injuries as to warrant his hospitalization and treatment, the same cannot be reckoned as an inherent and improbability against the case of the claimant/injured. To sum up, we are unable to find any clinching circumstance to discard and throw overboard the case of the appellant. 13. The appellant had suffered serious injuries. This, definitely is not an open and shut case. Probabilities have to be evaluated. If we should err, we would certainly prefer to err in favour of the victim, who had suffered injuries. In that view of the matter, we are satisfied that the version of the appellant which is inherently probably and which is not shown to be un-acceptable can M.A.C.A. No. 1972 of 2005 :10: be accepted. In this view of the matter, we disagree with the conclusion of the Tribunal. We think it reasonable to conclude that the appellant had suffered injuries in the accident while he was riding as a pillion rider on account of the negligence of the first respondent/rider. 14. That takes us to the next question as to what is the compensation payable. The appellant had claimed a total amount of Rs.2,50,000/-(claimed limited to that amount). He is shown to be an auto-mechanic. His employer has certified his income as Rs.3,500/-. The employer had not been examined. The accident had taken place as early on 7.1.1997. In these circumstances, even in the absence of better evidence, we are satisfied that the appellant can be assumed to be earning a monthly income of Rs.2,500/- per mensem. 15. He was an inpatient for a period of 6 days from 7.1.97 to 13.1.97. He had suffered serious injuries including fracture. Craniotomy and evacuation of extradural haematoma was done. He was treated with antibiotics, anticonvulsants and other supportive M.A.C.A. No. 1972 of 2005 :11: measures. Ext.A8 shows that he had incurred expense for medical treatment and bills to the tune of Rs.31,369/- were produced. This includes the inpatient bill for Rs.21,815/- It is safe to assume that the appellant was not able to pursue his employment for two months following the injuries suffered by him. An idea of the pain and suffering rendered can also be drawn from the nature of injuries, period of treatment and the procedures undergone. There is nothing to show that the appellant had suffered any permanent disability or consequent reduction in earning capacity. We are in these circumstance satisfied that the appellant is entitled to a total amount of Rs.52,000/- as compensation as per the details shown below: Loss of earning : Rs.5,000/- (Rs.2,500 x 2) Pain and suffering : Rs.12,000/- ( inpatient for 9 days, craniotomy was done) Medical and } miscellaneous expenses }: Rs.34,000/-(bills of (including transportation } Rs.31,369/- produced) charges, bye-stander } expenses, extra nourish- } ment expenses etc.) } M.A.C.A. No. 1972 of 2005 :12: Damage to clothing : Rs.1000/- ----------------------- Total Rs.52,000.00 ============== (Rupees fifty two thousand only) 16. We are not persuaded to agree that amounts are liable to be granted on any other head. In the absence of any proof of permanent disability, we are satisfied that no amount of compensation is liable to be paid for disability, for reduction of earning capacity and loss of amenities of life. We are further satisfied that the appellant is entitled to interest at the rate of 7.5% from the date of claim to the date of payment/realisation. The appellant is entitled to proportionate costs calculated as per the decision in Jeena V. Satish Babu (2011(3) KLT 943). 17. In the result: (a) This appeal is allowed in part. (b) The appellant is found to be entitled to a total amount of Rs.52,000/- from respondents 1 and 2 as compensation. (c) The second respondent shall satisfy the award by producing a cheque in the name of the appellant for the entire M.A.C.A. No. 1972 of 2005 :13: amount of compensation along with interest at the rate of 7.5% per annum from the date of the claim to the date of payment and proportionate costs. (d) The Tribunal after satisfying that the requisite Court fee has been paid, shall release the cheque to the appellant/claimant. R. BASANT, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/