IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 MACA.No. 203 of 2003() ---------------------- OPMV.840/1996 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA APPELLANT(S)/PETITIONER: GOPIKA KRISHNA KUMAR, D/O. K.U.KRISHNAKUMAR, AGED 2 YEARS, RESIDING AT KRISHNAVILAS,VENGALOOR KARA, PURAPUZHA VILLAGE, THODUPUZHA TAKUL(MINOR,REP.BY THE NEXT FRIEND AND GUARDIAN,FATHER K.U.KRISHNAKUMAR,S/O.GOPINATHAN- NAIR,KRISHNAVILAS,VENGALOOR KARA,PURAPUZHA VILLAGE BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S): RESPONDENTS: 1. GEORGE JOSEPH, S/O. JOSEPH, KOCHUPURAYIL HOUSE, PANDAPPILLY KARA, ARAKUZHA VILLAGE. 2. UNITED INDIA INSURANCE CO. LTD., REPRESENTED BY ITS BRANCH MANAGER, MUVATTUPUZHA. 3. SAJIMON, S/O. CHERIAN, VALIYATHEKKUMTHADATHIL HOUSE, PALAKKUZHA KARA, PALAKKUZHA VILLAGE. 4. SCARIA, S/O. PAILY, THATTATHUKUDIYIL HOUSE, VADAKKUM PALAKKUZHA KARA, PALAKKUZHA VILLAGE. 5. NEW INDIA INSURANCE CO. LTD., REPRESENTED BY ITS BRANCH MANAGER, MUVATTUPUZHA. 6. THOMAS, S/O. THOMMAN, URUMBIL (CHERKOTTU) HOUSE, ARAKUZHA KARA, ARAKUZHA VILLAGE, MUVATTUPUZHA TALUK. ADVS. SRI.KKM.SHERIF FOR R5 SRI.MATHEWS JACOB (SR.) FOR R2 SRI.T.ANUP JOACHIM FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2008 ALONG WITH MACA NO. 205 OF 2003, MACA NO. 365 OF 2008 AND MACA NO. 371 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. --------------------------------------------------------- M.A.C.A.NOS. 203 & 205 OF 2003 & 365 & 371 OF 2008 --------------------------------------------------------- Dated this the 19th day of November, 2008 JUDGMENT Ramachandran Nair, J. Connected appeals arise from common awards passed by the Motor Accidents Claims Tribunal, Thodupuzha granting compensation to the appellants in M.A.C.A. Nos. 203 and 205 of 2003 and in another case against which appeal is not filed. Since the vehicle was found to be driven by a person who did not have a driving licence, the Tribunal permitted recovery from the registered owner of the vehicle who has filed M.A.C.A. Nos. 365 and 371 of 2008. We have heard counsel appearing for the appellants and respondents and the Standing Counsel appearing for New India Insurance Co. Ltd. and separate counsel appearing for United India Insurance Co. Ltd. 2. The accident was a result of collision between a jeep and an M.A.C.A. NOS.203 & 205/03 & 365 & 371/08 2 autorickshaw in which the victims were travelling. The first appellant in M.A.C.A. No.205 of 2003 was travelling in the autorickshaw along with his wife and minor child. The wife of the first appellant died in the accident and in the claim petition filed by him and the child, the Tribunal granted a total compensation of Rs.3,15,000/-. The minor child of the first appellant in that case filed M.A.C.A. No.203 of 2003 for enhancement of compensation awarded by the Tribunal which was only Rs.35,740/-. 3. So far as claim for enhancement of compensation is concerned, we do not find any ground in M.A.C.A. No.205 of 2003 for enhancement of compensation for the death of the first appellant's wife because he has remarried after the death of his first wife. Moreover, the victim was drawing a monthly salary of Rs.3,186/- as an employee of the K.S.R.T.C. and compensation awarded for loss of dependency is Rs.2,51,472/-. Compensation is seen granted under other heads also. Since, we do not find any ground to interfere with the award passed by the Tribunal, we dismiss M.A.C.A. No. 205 of 2003. 4. So far as M.A.C.A. No. 203 of 2003 is concerned, we find force in the contention of the appellant that the compensation awarded is M.A.C.A. NOS.203 & 205/03 & 365 & 371/08 3 inadequate. The appellant who was a minor child of 2 years at the time of the accident suffered several injuries including fracture of bones of the leg, grafting of tissues etc. The total compensation awarded is only Rs.35,740/-. Considering the pain and suffering and the scars left on the child affecting her looks, we grant an additional compensation of Rs.15,000/- which will carry interest at the rate of 7.5% per annum from the date of application till date of payment. M.A.C.A. No.203 of 2003 is allowed to the above extent. The Insurance Company shall deposit the amount and recover the same from the registered owner of the offending vehicle. 5. So far as M.A.C.A. Nos. 365 and 371 of 2008 are concerned, the appellant's case is that the second respondent in M.A.C.A. No.365 of 2008 who is the third respondent in M.A.C.A. No.371 was driving the jeep and, therefore, the Insurance Company is bound to pay compensation. However, Standing Counsel for the Insurance Company referred to the fresh police investigation ordered and the final charge filed against the seventh respondent which is at the instance of the first appellant in M.A.C.A. No. 205 of 2003. Initially, the police registered F.I.R. against the second respondent who had valid licence. However, the M.A.C.A. NOS.203 & 205/03 & 365 & 371/08 4 injured (first appellant in M.A.C.A. No.205 of 2003) who was able to identify the driver of the offending vehicle filed a complaint before the higher authorities in the police which led to fresh investigation by Crime Detachment, Idukki and on fresh enquiry they identified the seventh respondent as the person who was driving the vehicle and who had no licence. The case of the appellant is that the claimants had initially mentioned the first respondent in the Original Petition as the driver of the vehicle and later changed the statement and, therefore, the evidence of the complainant should not have been relied on by the Tribunal to arrive at a conclusion that the 7th respondent was the driver of the vehicle. We are unable to accept this contention because there is nothing to doubt the evidence of the injured person who was a victim of the accident. Appellant has no case that the complainant was not in a position to identify the actual person who was driving the vehicle. Admittedly, the injury sustained by him was minor in nature and, therefore, he was able to identify the actual person who drove the vehicle at the time of the accident. Since, the appellant planted another person who had a driving licence in order to save him from the liability to pay compensation, complaint was filed before the higher authorities which led to fresh investigation. The effort of the first appellant in M.A.C.A. No.205 of 2003 to get the correct M.A.C.A. NOS.203 & 205/03 & 365 & 371/08 5 man prosecuted is only to be appreciated. By doing so, he acted against his own interest. Therefore, we are of the view that the Tribunal rightly relied on the evidence of the complainant at whose instance the driver of the vehicle was prosecuted even though he was later acquitted of the charge levelled against him. The Insurance Company is rightly absolved from liability as the 7th respondent who was found to have driven the vehicle at the time of the accident did not have a driving licence. Accordingly, M.A.C.A. Nos. 365 and 371 of 2008 are dismissed upholding the award passed by the Tribunal and directing the Insurance Company to proceed against the registered owner of the vehicle. (C.N. RAMACHANDRAN NAIR) JUDGE (HARUN-UL-RASHID) JUDGE sp/ M.A.C.A. NOS.203 & 205/03 & 365 & 371/08 6 C.N. RAMACHANDRAN NAIR & HAURN-UL-RASHID, JJ. M.A.C.A. NOS.203 &205/03 & 365 & 371/08 JUDGMENT 19th November, 2008 M.A.C.A. NOS.203 & 205/03 & 365 & 371/08 7