IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 6TH OCTOBER 2008 / 14TH ASWINA 1930 MACA.No. 504 of 2006(Y) ---------------------------------------- OPMV.997/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PUNALUR .................... APPELLANT/3RD RESPONDENT: THE ORIENTAL INSURANCE CO.LTD., REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS/CLAIMANT & RESPONDENTS 1 & 2: 1. C.V.KRISHNANKUTTY, VATTAPPALLIL VEEDU, INCHAKKADU, KALAYAPURAM, KOTTARAKKARA. 2. VIJAYAKUMAR, S/O.RAMACHANDRAN, VATTAPPALLIL THAZHATHIL, INCHAKKADU, MYLOMN, KALAYAPURAM, KOTTARAKARA 3. PRADEEPKUMAR, S/O.RAGHAVAN, PARATHIPARA VEEDU, INCHAKKADU, MYLOM, KALAYAPURAM, KOTTARAKKARA. ADV. SRI.K.SASIKUMAR FOR R1 SRI.SURIN GEORGE IPE FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.A.C.A.No.504 of 2006 --------------------------------- JUDGMENT Balachandran, J. The third respondent Insurance Company in O.P. (MV)No.997/02 on the file of the Motor Accidents Claims Tribunal, Punalur is the appellant. They assail the award passed by the Tribunal, awarding an amount of Rs.1,12,017/- as compensation for the injuries sustained by the first respondent/ petitioner. 2. The first respondent filed the original petition aforesaid claiming compensation, alleging that he was injured in a motor accident that occurred on 28.4.2002. According to him, he was travelling as a pillion rider on the scooter bearing Reg.No.KL-2/H 8844, ridden by his son, along the Kollam-Chenkota Public Road and then an autorickshaw bearing Reg.No.KL-2/M 4052, driven by the third respondent, which was coming from behind, MACA 504/06 2 hit against the rear right side of the scooter, as a result of which he was thrown down to the road and sustained injuries. It is also alleged that he was immediately taken to Vijaya Hospital, Kottarakkara and from there to S.S.M. Hospital, Kollam, where he was admitted and treated as an inpatient for 13 days and thereafter he was treated as an inpatient for 8 days in S.P. Fort Hospital, Thiruvananthapuram; that he was aged 60 and that he was a 'C' Class Government Contractor, earning a monthly income of Rs.6,000/-. He claimed in all an amount of Rupees Two lakhs by way of damages. 3. Respondents 2 and 3 herein filed written statements admitting that the third respondent was the driver of the autorickshaw as also the taking place of the accident and contending that the vehicle is insured with the appellant. 4. Appellant/third respondent filed written statement contending that the said autorickshaw was not involved in the accident as alleged; that the MACA 504/06 3 first respondent sustained injuries while he himself was riding his scooter in a rash and negligent manner and that he is not entitled to get any amount by way of compensation as claimed, though the autorickshaw was duly insured by them. 5. The Tribunal found that the accident alleged is genuine and consequently, made an assessment of the damages sustained to the first respondent/claimant at Rs.1,12,017/- and directed the amount to be paid by the appellant/third respondent, who was the insurer of the autorickshaw. 6. It is vehemently contended before us by the learned standing counsel for the appellant Insurance Company that their contention was that no accident has taken place as alleged; that they had filed I.A.No.2416/03 seeking permission under Section 170 of the motor Vehicles Act to contest the claim on all grounds, but that was dismissed by the Tribunal; that the approach of the Tribunal was MACA 504/06 4 perverse and that the award as against the appellant, without giving them an opportunity to contest the case, especially in view of the contentions raised by them, is illegal, unjust and deserves to be set aside. 7. In the written statement, the contention raised by the appellant was disputing the accident as alleged and contending further that the first respondent, who was the registered owner of the scooter, sustained certain injuries while he himself was riding his scooter; that no other vehicle was involved in the accident; that autorickshaw, bearing Reg.No.KL-2/M 4052 insured by them, never hit on the scooter on 28.4.2002 as alleged; that it is false to say that the rider of the scooter was the son of the first respondent/ petitioner and he was a pillion rider and that the first respondent/petitioner and respondents 2 and 3 are colluding with an intention to gain unlawful benefits from them. They also disputed the MACA 504/06 5 compensation claimed. 8. The contention of the learned counsel for the appellant is that the documents produced by them should have been marked and they should have been allowed to adduce evidence to substantiate their contentions. The documents so produced by the appellant in the court below are the FIR with the F.I. Statement and the vehicle inspection reports of the scooter and the autorickshaw alleged to have been involved in the accident. The vehicle inspection report of the autorickshaw, alleged to have been involved in the accident, has already been marked as Exhibit A2 in the case and the final report in the said crime is marked as Exhibit A3. However, in view of the grievance of the appellant's counsel that the FIR with the F.I. Statement produced as Japta No.I and the vehicle inspection reports produced as Japta Nos.II and III should have been allowed to be marked, we allow the said documents to be marked as Exhibits B1 to B3. MACA 504/06 6 9. Exhibit B1 FIR was registered at 5.30 p.m. on 12.5.2002 on the basis of the F.I. Statement given on that day by the first respondent, who was the injured. The F.I. Statement shows that the case of the first respondent was that on 28.4.2002, while he was travelling on the scooter, ridden by his son Jayakrishnan, an autorickshaw coming from behind hit on the left side of the scooter and thereby himself and the rider of the scooter were thrown down to the road and the autorickshaw driver as also the people, who assembled there, took him in the said autorickshaw to Vijaya Hospital, Kottarakkara and that being a Sunday, doctors were not there and therefore, he was taken to S.S.M. Hospital, Kollam; that the rider of the scooter, however, did not sustain any injury; that he sustained fracture on shoulder and few other places as also injuries on several parts of his body and that he did not give information to the police as he was under the impression that information would MACA 504/06 7 have been furnished from the hospital itself. 10. The only question to be considered is as to whether the crime was foisted, giving a F.I. Statement on 12.5.2002 when the accident has taken place on 28.4.2002. 11. It is worthy to note that Exhibits A4 to A6 are documents in relation to the treatment of the first respondent. Exhibit A4 is dated 28.4.2002, namely, on the date of occurrence itself. It is issued by the Duty Medical Officer of Vijaya Hospital, Kottarakkara to the Causality Medical Officer, S.S.M. Hospital, Kollam making a reference of the patient for better management. The contents of the letter shows that the first respondent was brought over to Vijaya Hospital with alleged RTA injuries and giving him only the initial first aid, he was referred for higher centre for want of minimum expert management and no intimation or wound assessment was done there. Exhibit A5 discharge certificate shows that the MACA 504/06 8 first respondent was admitted in S.S.M. Hospital, Kollam on 28.4.2002 as a case of RTA injuries, referred from Vijaya Hospital, Kottarakkara; that on X-ray investigation fracture with dislocation of left shoulder, fracture left humerus and fracture of both public ramus left were detected and that the patient was discharged on request from that hospital. The discharge certificate is dated 8.6.2002, though the date of discharge was on 10.5.2002. From Exhibit A6, it is seen that he was again admitted for treatment at S.P. Fort Hospital, Thiruvananthapuram on 13.5.2002 and was discharged on 20.5.2002. These records show that immediately on the accident taking place, the first respondent was taken to the hospital, where he disclosed that it is a case of road traffic accident and received treatment there. Exhibit A3 shows that after due investigation, the police also have charge sheeted the driver of the autorickshaw involved in the accident insured by the appellant. MACA 504/06 9 12. The vehement argument that is advanced by the learned counsel for the appellant is that in the F.I. Statement he stated that he was a pillion rider on the scooter ridden by his son, whereas, in his statement before the Tribunal, when examined as PW1, his case was that the scooter was being ridden by his brother's son. It is worthy to note that what he stated before the Tribunal as PW1 is that he was travelling as a pillion rider on the scooter bearing Reg.No.KL-2/H 8844, ridden by the son, clarifying that it was being ridden by his elder brother's son. The injured was aged 60 at the time of the accident and his referring to his elder brother's son as son cannot be taken as reference to his son and not his elder brother's son, as it is common for such aged persons to refer to children of their own brothers and sisters as sons and daughters. Thus, prima facie, it is not possible to make out any inconsistency in the case of the first respondent or absence of truth in the MACA 504/06 10 case alleged. 13. It is further contended by the learned counsel for the appellant that inasmuch as collusion had been alleged in the written statement filed by the appellant, the appellant should have been granted permission under Section 170 of the Motor Vehicles Act to contest the case on merits. Section 170 of the Motor Vehicles Act enables for reasons to be recorded in writing to direct the insurer to be impleaded as a party and that on such impleadment, the insurer shall have the right to contest the claim on all or any of the grounds available to the person against whom the claim has been made without prejudice the provisions contained in sub-section (2) of Section 149 of the Motor Vehicles Act. That is, in cases where the Tribunal is satisfied that there is collusion between the person making the claim and the person against whom the claim is made or when the person against whom the claim is made has failed to MACA 504/06 11 contest the claim. In the instant case, the person against whom the claim is made has not failed to contest the case and the Tribunal was, however, not satisfied also that there is collusion between the first respondent and respondents 2 and 3 herein. The attempt of the learned counsel for the Insurance Company seeking a remand of the case, in our view, is only to protract the payment of the amounts due to the first respondent in the original petition filed by him as early as in 2002 and that there is no genuineness or merit in the contention advanced that the appellant should have been granted permission under Section 170 of the Motor Vehicles Act to contest the case. 14. It is further contended by the counsel for the appellant that the Tribunal has adopted 8 as the multiplier, when, as on the date of the alleged accident, the first respondent was aged 60. The contention advanced, no doubt, is with force. As per the II schedule, the multiplier that could have MACA 504/06 12 been adopted for a person aged above 60 is only 5 and not 8. Consequently, therefore, the disability compensation to which the first respondent was entitled was only Rs.25,200/- and not Rs.40,320/- as fixed by the Tribunal. Apart from the said deduction, we see no ground to reduce the compensation awarded by the Tribunal on any other count. In the result, we allow this appeal in part reducing the total amount of compensation awarded to the first respondent by Rs.15,120/-. In all other respects, this appeal stands dismissed. (J.B.Koshy, Judge) 6th October, 2008 (K.P.Balachandran, Judge) tkv