IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 MACA.No. 277 of 2004(C) ---------------------- OPMV.3881/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT(S): APPELLANT/2ND RESPONDENT: --------------------------------------- NATIONAL INSURANCE COMPANY LIMITED KALAMASSRY NOW REPRESENTED BY ITS DEPUTY MANAGER REGIONAL OFFICE, AJAI VIHAR, KOCHI-16. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE RESPONDENT(S): --------------- 1. THILAKAN @ K.V. THILAKAN THAMPURAN, S/O. NAMBUTHIRPADU, `ARADHANA`, 10/269 P, TRIPUNITHURA, KOCHI-682 301. 2. D.V. KURUP, 50/604 A, LAL BHADUR SASTHRI ROAD, CHUTTUPADU KARA, EDAPPALLY, KOCHI-24. ADV. SRI.SREELAL N.WARRIER FOR R1 SRI. MATHEWS JACOB SRI.A.K.MADHAVANUNNI FOR R1 SMT.SILVI JOSEPH FOR R1 SRI.JIMMY GEORGE FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/08/2009, THE COURT ON 14/08/2009 DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. NO: 277 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th Day of August, 2009. JUDGMENT Joseph Francis J., This appeal is filed by the second respondent Insurance Company in O.P. (M.V.) No: 3881 of 1995 on the file of M.A.C.T., Ernakulam. First respondent herein is the petitioner and second respondent is the first respondent in that O.P., which was filed under Section 166 of Motor Vehicles Act. 2. The allegation is that on 27.10.1994 at about 10.00 p.m., the petitioner was travelling in a moped bearing No: KL-7/E 329 as a pillion rider through Ernakulam - Tripunithura road. The moped was driven by the first respondent. When they reached at Vyttila, an ambassador car came at a high speed from the opposite side and dashed against the moped, as a result of which the petitioner fell M.A.C.A . NO: 277 OF 2004 :2: down and sustained injuries. The petitioner alleges that the accident was due to the rash and negligent driving of the moped by the first respondent who is the owner cum rider. The second respondent is the insurer of the moped. The petitioner claims Rs.4 lakhs as compensation. 3. In the Claims Tribunal the first respondent remained exparte. Second respondent filed a written statement admitting the policy of the moped and disputing the accident on the ground that no police case was registered in connection with the accident. Before the Claims Tribunal PW1 and PW2 were examined and Exts. A1 to A7 were marked. Learned Claims Tribunal on considering the evidence found that the accident was due to the rash and negligent driving of the first respondent and the petition was allowed and the petitioner was allowed to realise a sum of Rs.1,15,000/- as compensation together with interest at the rate of 9% per annum from the date of petition till the date of realisation from the respondents and the second respondent was directed to pay the amount as insurer of the moped. Against that award the second M.A.C.A . NO: 277 OF 2004 :3: respondent filed this appeal. 4. Heard the learned counsel for the appellant and learned counsel for the first respondent. 5. Learned counsel for the appellant submitted that the moped was never involved in the accident as no crime was registered before the City traffic police station. That argument cannot be accepted in view of the fact that merely because the injured did not complain to the police, it cannot be said that no accident at all occurred. It is now settled position of law that while considering the petition, the Tribunal is required to hold an enquiry and is not to act as a criminal court so as to find whether the petitioner has established the occurrence beyond any shadow of doubt. In the enquiry, if there is prima facie evidence of the ocurrence, there is no reason to dis believe such evidence. The petitioner is examined as PW1. PW1 deposed that on 27.10.1994, at about 10 p.m. while he was travelling in a moped bearing no:KL-7 E 329 as a pillion rider alongwith Ernakulam-Tripunithura road and when they reached near Vyttila, an ambassador car came at a high speed from the opposite M.A.C.A . NO: 277 OF 2004 :4: site and dashed against the moped as a result, he fell down and sustained serious injuries. PW1 deposed that the accident was due to the rash and negligent driving of first respondent who was driving the moped. Ext.A1 is the medical certificate issued from St.Joseph's Hospital, Vyttila dated 2.12.1994 stating that the petitioner was admitted in that hospital stating that while petitioner was travelling as a pillion rider in a moped an ambassador car hit on the mopped on 27.10.94 at 10.15 p.m. The first respondent has not gone to the witness box to dispute the accident. In the absence of any contra evidence, the Claims Tribunal is justified in finding that the accident was due to the rash and negligent driving of the first respondent who was riding the moped. Ext. A1 is the treatment certificate issued by St. Joseph Jospital, Vyttila dated 2.12.94 stating that due to the accident the petitioner sustained the following injuries: “1. Laceration with deep injury 10x8 cm on the right leg. 2. Multiple injury right ankle 3. X-ray showed the comminuted fracture on the femur right leg. M.A.C.A . NO: 277 OF 2004 :5: 4. Comminuted fracture on the tibia, fibula 1 inch above the right ankle, right polar fracture.” 6. The petitioner was admitted in the hospital on 27.10.94 and was discharged on 12.11.94. Ext.A2 is the certificate issued from Indira Gandhi Co-operative Hospital, Ernakulam showing that the petitioner is having 10% permanent disability. The petitioner produced Ext.A6 medical bills for Rs.37,099.23. The petitioner was employed as the Manager of Cominco Binani Zinc Ltd., and was drawing a monthly salary of Rs.5,000/-, which is evident from Ext.A7 certificate. The Claims Tribunal awarded Rs.38,000/- towards treatment expenses. Rs.2,000/- for attendant expenses. Rs.1,000/- for extra noursihment expenses and Rs.500/- for damage to clothing and Rs.1,000/- towards transport charges. Rs.15,000/- was awarded towards compensation for pain and suffering. The petitioner was on leave for 6 ½ months from 28.10.1994 to 14.5.1995, which is evident from Ext.A7. Rs.32,500/- was awarded towards compensation for loss of earning for 6 ½ months. PW2 is the Orthopaedic surgeon, who issued Ext.A2, certificate. The petitioner was aged 54 years at the time of accident. Rs.10,000/- was M.A.C.A . NO: 277 OF 2004 :6: awarded towards compensation for loss of earning power. Rs.10,000/- was awarded towards compensation for loss of amenities and enjoyment in life. Rs.5,000/- was awarded towards compensation for loss of future prospects. On considering the evidence on record, we are of the view that the learned Claims Tribunal has awarded just and reasonable compensation. The appellant has no case that the policy does not cover a pillion rider. Therefore we find no reason to interfere with the award of the Claims Tribunal. Accordingly this appeal is dismissed. The award in O.P.(M.V.) 3881 of 1995 on the file of M.A.C.T. Ernakulam is confirmed. Parties are directed to suffer their respective costs in this appeal. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/