IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 MACA.No. 748 of 2006() ---------------------- OPMV.334/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT(S): APPELLANT/PETITIONER ---------------------------------- MR.JOSE, AGED 37, S/O.MR.YOHANNAN, ECHIKANANDANATH HOUSE, CHEMMANATTUKARA, VARIKOLI P.O. BY ADV. SRI.T.K.RADHAKRISHNAN RESPONDENT(S): RESPONDENTS -------------------------- 1. SMT.JOLLY, W/O.SAJI, KUZHIKANDATHIL HOUSE, THIRUVANIYOOR P.O. 2. SHIBU, S/O.POULOSE, PAPPANALIL HOUSE, THIRUVANIYOOR P.O. 3. THE NEW INDIA ASSURANCE CO.LTD. POOZHIKALA BUILDING, M.C.ROAD, ETTUMANNOOR, PIN-686631. ADV. SRI.P.JAYASANKAR FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPELLANT'S EXHIBITS: CERTIFIED COPY OF THE JUDGMENT IN C.C.NO.1522/05 DATED 29/11/2005 OF THE JFCM COURT, ALUVA. //true copy// P.S. to Judge R. BASANT & N.K. BALAKRISHNAN, JJ. ------------------------------------------------- M.A.C.A. No. 748 of 2006-B ------------------------------------------------- Dated this the 29th day of July, 2011 JUDGMENT Basant,J. The claimant is the appellant. The claim of the claimant- appellant for an amount of Rs.One lakh as compensation for the loss suffered by him as a result of the motor accident which took place on 13.4.2000 was dismissed by the Tribunal. 2. According to the claimant, he was riding motor cycle No.KL 7Z/5595 from west to east through the Aluva-Choondy road on 13.4.2000. At 11 AM when he reached near a place by name Assissi at Aluva, a mini lorry owned by the first respondent, driven by the second respondent and insured with the third respondent came in the opposite direction in a rash and negligent manner. That vehicle was engaged in an attempt to overtake another vehicle. As a result of the rash and negligence act on the part of the 2nd respondent, the two vehicles came into contact and the appellant was thrown off of his vehicle and fell in the drainage M.A.C.A. No. 748 of 2006 -: 2 :- by the side of the road. He was immediately removed to the hospital. He was taken to the Medical Trust Hospital. He was in a semi-conscious condition at that stage. He was treated at the Medical Trust Hospital. He underwent treatment as an inpatient from 13.4.2000 to 24.4.2000. After discharge, he came to know that the police had not taken any action to prosecute the second respondent. He therefore filed a private complaint before the learned Magistrate. The learned Magistrate referred the said complaint to the police under Section 156(3) of the Cr.P.C. The police thereupon registered a crime on 13.6.2001. The crime was registered under Sections 279 and 338 I.P.C. Ext.A1 is the copy of the FIR registered. After completion of investigation, final report/charge sheet was filed before the learned Magistrate by the police. Ext.A2 is the final report/charge sheet filed against the 2nd respondent by the police alleging commission of offences punishable under Sections 279 and 338 I.P.C. The appellant claimed a total amount of Rs.One lakh as compensation. 3. Before the Tribunal respondents 1 and 2, the owner and the driver remained ex parte. The third respondent resisted the claim. Existence of a valid policy of insurance was admitted. But the liability to compensate was disputed. The vehicle insured by M.A.C.A. No. 748 of 2006 -: 3 :- the appellant was not involved in the accident, it was contended. Reliance was placed on the alleged cause narrated to the doctor at the Medical Trust Hospital to which the appellant was rushed immediately after the accident. The alleged cause is seen recorded as “fall into drainage from bike near the Assissi at Aluva at 11.30 AM on 13.4.2000”. The doctor had examined the appellant at 12.45 PM on 13.4.2000. 4. Parties went to trial on those contentions. In the light of the contentions raised by the third respondent-insurer, the appellant examined himself as P.W.1. He spoke about the accident and negligence on the part of the driver of the mini lorry. He examined another witness who had allegedly witnessed the occurrence as P.W.2. This witness has been cited by the police as a witness in the charge sheet filed by them. He was arrayed as C.W.2 in the final report. Only Exts.A1 to A4 were marked. Ext.A1, as already stated earlier, is the copy of the F.I.R. Ext.A2, as already referred to is the final report/charge sheet. Ext.A3 is the wound certificate issued by the doctor at the Medical Trust Hospital to which we have already made reference. Ext.A4 series are bills mainly issued from the Medical Trust Hospital, Ernakulam, which shows that an amount of `30,785.12 M.A.C.A. No. 748 of 2006 -: 4 :- has been spent towards medical expenses. 5. The Tribunal by the impugned award took the view that the accident has not been proved. The Tribunal felt that the alleged cause narrated to the Doctor does not fully support the version of the appellant that he has suffered injuries in a motor accident. The court did not accept the oral evidence of P.Ws.1 and 2. The court did not accept Ext.A2 charge sheet/final report filed by the police. Accordingly, the learned Tribunal proceeded to pass the impugned award. 6. We have heard the learned counsel for the appellant/ claimant and the respondent/insurance company. The learned counsel for the appellant submits that the Tribunal has omitted to take note of the realities of the situation. It cannot possibly be disputed and the Tribunal has, in fact, accepted that the appellant had suffered injuries as alleged by him at about 11.30 a.m. on 13/4/2000. Convincing assurance for this fact is available from Ext.A3 wound certificate. That clearly shows that the appellant was brought to the Medical Trust Hospital at Ernakulam from Aluva at 12.45 p.m. by another person by name A.A. Sunny. The appellant was in a semi conscious condition, it is noted in Ext.A3. It is also very evident that from 13/4/2000 to 25/4/2000 the appellant had continued as an inpatient in that hospital. He had M.A.C.A. No. 748 of 2006 -: 5 :- suffered injury and there was mild cerebral oedema and acute sub dural haematoma on the left side. Fracture frontal bone was confirmed. X-rays right foot, heel and left shoulder showed no bony injury. Left tempero parietal craniotomy and evacuation of extra dural haematoma was done. We have adverted to these to gather an impression about the seriousness of the injuries suffered. The learned counsel for the appellant submits that in such condition while he was an inpatient from 13/4/2000 to 25/4/2000, if he had not taken steps to lodge a complaint before the police, no reasonable mind should have attached any undue significance to his conduct of not rushing to the Police Station and not lodging a complaint. Even if the allegations were true, during the period of hospitalisation the primary yearning of the appellant must have been to get himself treated and cured. We agree with the learned counsel for the appellant that no reasonable person should attach undue significance to the omission of the appellant to lodge a complaint while he was undergoing treatment as an inpatient. 7. The next circumstance that appears to have weighed with the Tribunal is the alleged cause recorded by the Doctor. The alleged cause must evidently have been given to the Doctor not by the appellant who is reported to be in a semi conscious M.A.C.A. No. 748 of 2006 -: 6 :- condition; but by some others. Going by the evidence available what had really happened was that the appellant after the incident had fallen into a drainage from the bike. He was in a semi conscious condition when he reached the hospital also and evidently some others must have picked him up from the drain and rushed him to the hospital. The alleged cause must have been narrated by such person and the alleged cause shows that he had fallen from the bike at the precise place where the incident is alleged to have taken. The absence of a narration to the Doctor that the fall from the bike occurred on account of an impact with a mini lorry cannot, in these circumstances, be given undue importance. Not that it is irrelevant but a prudent mind can attach to such statement only the significance and relevance which such statement can command in the circumstances. 8. Perhaps what convincingly clinches the issue in our mind is the fact that against Column No.10 in the wound certificate, the Doctor has made an entry “Aluva Traffic informed over phone”. The Tribunal's attention, it appears, was not drawn to this crucial entry in Ext.A3. If it was a mere fall from the bike, we find no reason for the Medical Officer to inform the Aluva Traffic Police. The relevant entry under Column No.10 reveals eloquently that at least a road traffic accident had occurred and it was M.A.C.A. No. 748 of 2006 -: 7 :- necessary to inform the police. That undisputed entry, the relevance and significance of which was omitted to be noted by the Tribunal, does go a long way to assure us of the acceptability of the case of the appellant. We must say that scales are tilted in favour of the appellant by that entry to which we attach crucial significance. 9. It is true that the F.I.R. was registered long later on 13/6/2000, the incident having taken place on 13/4/2000. We have already noted that the appellant was an inpatient from 13/4/2000 to 25/4/2000. The need of initiating proceedings could have dawned on the appellant only after he came to know that no crime has been registered by the police. In this context it will not be inapposite to note that normally if the police were informed by the duty Medical Officer, it was upto the police to have taken necessary action to contact the appellant, record his statement and register an F.I.R. if necessary. If the appellant did not feel the need to run to the Police Station immediately after he was discharged from the hospital, no prudent mind can attach undue significance to that omission of the appellant. We are unable to precisely understand the date on which the complaint was filed before the Magistrate by the appellant. That complaint was received by the learned Magistrate and reference was made to M.A.C.A. No. 748 of 2006 -: 8 :- the police under Sec.156(3) of the Cr.P.C. Before the crime was registered, several acts had to be done. The appellant had to contact a lawyer. The fact that no crime has been registered must have been ensured and complaint must thereafter have been prepared and filed before the court. The Magistrate must have referred it to the police and the date 13/6/2000 indicates only the date on which the complaint was received by the police under Sec.156(3) of the Cr.P.C. and a crime was later registered. Much cannot, in these circumstances, be made out of the alleged delay from 13/4/2000 to 13/6/2000. 10. Police, after investigation, had come to the conclusion that an accident, as alleged by the appellant, had taken place. Police is also part of the criminal justice administration system. An approach with distrust against the police under all circumstances is certainly not justified. The polity in India may be having sufficient reason historically to adopt such an attitude of distrust against the police. It is the distrust of the imperial police. Even after the imperial police transformed itself to the police force of a democratic country such a distrust appears to continue. Depending on the facts of each case, an attitude with trust or distrust can be adopted by a discerning mind against the conduct of the police. But one cannot start appreciation with any such M.A.C.A. No. 748 of 2006 -: 9 :- inherent doubt or distrust. Are these circumstances to doubt or distrust the police? This must certainly be considered by a prudent mind anxiously. We need only mention that in this case we do not find any such need of an attitude with distrust and suspicion against Ext.A2 final report submitted by the police which shows that the police had come to the conclusion that an accident as alleged by the appellant had in fact taken place. 11. It was not only a case of registration of an FIR. A final report/charge sheet was filed after due investigation. The final report was ultimately filed against the 2nd respondent alleging not only insignificant offences but offences punishable, inter alia, under Sec.338 IPC. It is common knowledge that the offence under Sec.338 IPC is a serious offence which may land the indictee in prison. The Magistrates/courts do not generally take a very lenient attitude in prosecutions under Sec.338 IPC. The allegation was raised in the instant case after due investigation that the 2nd respondent had committed the offence punishable under Sec.338 IPC. That again reveals that a ready inference that Ext.A2 is a result of collusion between the injured, driver of the offending vehicle and the police cannot reasonably and justifiably be drawn instantly. 12. We now have Ext.A5. That shows that the 2nd M.A.C.A. No. 748 of 2006 -: 10 :- respondent did not dispute the allegations in Ext.A2 charge sheet. He went before the court and pleaded guilty. We do immediately remind ourselves that though the learned Magistrate has taken a lenient view and had imposed only a sentence of fine coupled with the default sentence it must have been difficult for any one to anticipate what attitude the Magistrate would take. It would be unreasonable to assume that the 2nd respondent to oblige the petitioner took the ultimate risk of pleading guilty in a prosecution under Sec.338 IPC if as a matter of fact the allegations were untrue. The filing of the charge sheet under Sec.338 IPC read with the subsequent conduct of the 2nd respondent pleading guilty does also go a long way to assure us of the acceptability of the case of the appellant. 13. We must in this context note that the appellant had examined two witnesses including himself in support of the case. P.W.2 is shown to be an eye witness to the occurrence. He did not descend from thin air into the witness stand before the Tribunal. Even the police, in the course of investigation, had identified him as an eye witness to the occurrence. We have gone through the cross-examination of P.Ws.1 and 2. At any rate, we are satisfied that the evidence of P.Ws.1 and 2 deserves due consideration and the same cannot be discarded lightly by M.A.C.A. No. 748 of 2006 -: 11 :- any evaluating and discerning mind. 14. We have adverted to all the relevant circumstances. On the one side indications galore in favour of the case of the appellant. On the other side is the very real possibility that the appellant, 2nd respondent and the police may have colluded to mislead the Tribunal and the superior courts. The entry in Ext.A3 noted by us earlier shows that the Doctor had perceived this to be a proper case to be reported to the traffic police station. This is certainly a very clinching circumstance in the totality of materials available in this case. 100% certainty may not be possible in the domain of human beings. If we should err, we have no hesitation to agree that if we should err on the side of the victim/ appellant who, at any rate, has suffered serious injuries too. In these circumstances in preference to the view taken by the Tribunal we prefer to accept the case of the appellant about the manner in which he had sustained injuries. We therefore hold that a motor traffic accident had taken place and the appellant had suffered injuries in such accident. 15. The learned counsel for the insurance company contends that even proof of the fact that an accident had taken place is insufficient to mulct the respondents with liability to pay compensation. This is a claim under Sec.166 of the M.V. Act and M.A.C.A. No. 748 of 2006 -: 12 :- negligence is even today the foundation of liability to attract an order directing payment, contends counsel. We agree with the learned counsel for the insurance company. Negligence has to be proved. We have the evidence of P.Ws.1 and 2 about the negligence on the part of the driver of the mini lorry. We further have Ext.A2 charge sheet filed by the police after due investigation in support of that theory of negligence. No counter evidence is available. The mere fact that damage on the two vehicles has not been proved does not appear to us to be crucial. At any rate, the bike had fallen and the motorcycle must have been damaged, going by the case of either side. Absence of damage on the heavier vehicle - a mini lorry as a result of the contact with the motorcycle does not appear to be sufficient to clinch the issue in favour of the 3rd respondent. We accept the oral evidence of P.Ws.1 and 2. In the absence of any contra evidence, we are satisfied that the available evidence about the negligence is sufficient to found an award for payment of compensation under Sec.166 of the M.V. Act. 16. We now come to the quantum of compensable payable. We have clear indications about the nature of the injuries suffered. We have already extracted the relevant entries in Ext.A3 above. That gives an idea about the injury suffered and M.A.C.A. No. 748 of 2006 -: 13 :- the nature of treatment that followed. Fracture of the frontal bone had resulted. There was mild cerebral oedema and acute sub dural hematoma. Tempero parietal craniotomy was done and evacuation of extra dural hematoma was performed. He was an inpatient for 12 days from 13/4/2000 to 25/4/2000. We have no better evidence about the earnings or the period of involuntary unemployment. Medical bills to the tune of `30,785.12 has been produced and the Tribunal had observed that the appellant had spent the said amount towards his treatment. The assessment of compensation, it has often been stated, is not a science of exactitude. A fair amount of guesstimation is permitted and will have to be resorted to in the assessment of compensation. It belongs to the mixed realm of art and science. A well informed Tribunal will certainly take note of the primary mandate to it, which is essentially to ensure just and reasonable compensation to the victim. Such a Tribunal cannot afford to throw its hands up for want of precise and specific evidence about the quantum of loss suffered. All relevant inputs will have to be taken into consideration and appropriate conclusions will have to be drawn. It will always have to be remembered that the burden is heavy on the claimant to prove the exact loss suffered. But even in the absence of precise, cogent, specific and detailed evidence, M.A.C.A. No. 748 of 2006 -: 14 :- compensation can be awarded by a court/ tribunal ensuring always that for want of adequate material it is only the claimant who will be put to suffer. But that cannot take away the jurisdiction of the court/Tribunal to award unquestionable minimum amount of loss suffered by the claimant. 17. So reckoned, we come to the conclusion that the appellant is entitled for the following amounts as compensation on the basis of the materials available: 1. Loss of earnings (`2,500/- assumed to be monthly wages. Period of involuntary unemployment assumed to be 2 months) - ` 5,000/- 2. Medical and miscellaneous expenses (including medical bills, transportation, extra nourishment, bystander's expenses, damage to clothing etc. Bill for `30,785.12 produced as A4 series) - `36,000/- 3. Pain and suffering (Fracture of the frontal bone, cerebral oedema and extract sub dural hematoma, crainotomy and evacuation of extra dural hematoma was done. Inpatient for 11 days) - `12,000/- -------------- Total - `53,000/- ====== 18. We are further satisfied that the appellant/claimant is entitled to interest at the rate of 7.5% per annum from the date of M.A.C.A. No. 748 of 2006 -: 15 :- the claim to the date of realisation. Considering the passage of time, we are satisfied that the entire amount can be released to the claimant now. 19. In the result: (a) This appeal is allowed in part. (b) The respondents are found entitled to a total amount of `53,000/- (Rupees fifty three thousand only) along with interest at the rate of 7.5% per annum from the date of the petition to the date of realisation. He is entitled to total costs of `5,000/-. (c) The 3rd respondent/insurer shall produce the cheque for the entire amount in the name of the appellant before the Tribunal within a period of 60 days. The Tribunal shall, after ensuring that the court fee has been paid, release the same to the claimant. Sd/- R. BASANT (Judge) Sd/- N.K. BALAKRISHNAN (Judge) srd/Nan //true copy// P.S. to Judge M.A.C.A. No. 748 of 2006 -: 16 :- R. BASANT & N.K. BALAKRISHNAN, JJ. ------------------------------------------------- I.A.No.2122 of 2011 in M.A.C.A. No. 748 of 2006-B ------------------------------------------------- Dated this the 29th day of July, 2011 ORDER Basant,J. This application is filed by the claimant-appellant to receive a certified copy of the judgment dated 29.11.2005 passed by the Judicial First Class Magistrate Court, Aluva. This document is pressed into service before us in support of the contention of the learned counsel for the appellant that the driver of the vehicle, i.e. the 2nd respondent herein, who faced prosecution for culpable negligence had appeared before the learned Magistrate and pleaded guilty to the charge under Sections 279 and 338 I.P.C. and accepting the plea of guilty, he was convicted and sentenced by the learned Magistrate to pay a fine of Rs.1500/- and in default to undergo simple imprisonment for a period of one month. This document was, of course, not produced before the M.A.C.A. No. 748 of 2006 -: 17 :- Tribunal. But we do reckon this document to be a crucial significance. Notwithstanding the opposition by the learned counsel for the third respondent, we are satisfied that the said document deserves to be taken in evidence. Therefore, we allow this application. We receive the said document in evidence. We direct the Registry to mark the said document as Ext.A5. R. BASANT (Judge) N.K. BALAKRISHNAN (Judge) srd/Nan