IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 4TH NOVEMBER 2010 / 13TH KARTHIKA 1932 MACA.No. 433 of 2009 --------------------------------- OPMV.2275/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/PETITIONERS IN O.P.(MV)2275/05: -------------------------------------------------------------------------- MARTIN, AGED 29, S/O POULOSE, MULAVARICKAL HOUSE, MOOKKANNOOR.PO., ANGAMALY, ERNAKULAM. BY ADV. SRI.V.K.GOPALAKRISHNA PILLAI SRI.GOPAKUMAR G. (ALUVA) RESPONDENTS (RESPONDENTS 1 TO 3 IN O.P.(MV) 2275/05: ----------------------------------------------------------------------------------------------- 1. VINOJ.M.J., MULLEPARAMBIL HOUSE, VATTIPARAMBU PO., KODUSSERY, ANGAMALY, ERNAKULAM DISTRICT 2. JAYAN, S/O.RAMACHANDRAN, MANAPILLY HOUSE MOOKKANNOOR.PO., ANGAMALY, ERNAKULAM. 3. NEW INDIA ASSURANCE CO.LTD., S.M. SHOPPING COMPLEX, ALUVA ROAD, ANGAMALY. ADV. SMT.P.K.SANTHAMMA FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.433 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of November 2010 JUDGMENT Basheer, J. Appellant who sustained fracture to metatarsal on his left foot in a road traffic accident filed a petition before the Motor Accident Claims Tribunal under Section 166 of the Motor vehicles Act seeking compensation. The Tribunal dismissed the application holding that the evidence available on record was not sufficient enough to prove negligence on the part of respondent No.2 who had allegedly driven the offending vehicle at the time of the accident. Hence this appeal. 2. The case of the appellant before the Tribunal was that at about 7 p.m. on August 5, 2005 he was travelling in an autorikshaw bearing registration No.KL-7/AR-4176 which belonged to respondent No.1 and was being driven by respondent No.2 herein. When the vehicle reached near the petrol pump at Aluva, respondent No.2 suddenly took a U-turn in a rash and negligent manner. The autorikshaw capsized and appellant sustained the injuries referred to above. The vehicle was insured with respondent No.3 at the time of the accident. Appellant claimed a total sum of Rs.1,50,000/- as compensation from the owner, driver and insurer of the vehicle. M.A.C.A.No.433 OF 2009 :: 2 :: 3. In the counter statement filed by the insurance company, it was contended that the autorikshaw was not involved in the accident as alleged by the claimant. However, the policy in respect of the said vehicle was admitted. It was further contended that the alleged injuries might have been caused due to some other reason and the claim petition was instituted by the claimant in collusion with respondent Nos.1 and 2. 4. The appellant got himself examined as PW1. A doctor was examined as PW2 to speak about the injuries sustained by him. Exts.A1 to A8 were also marked on his side. Ext.B1 policy, Ext.X1 medical records were also marked in the case. Respondents examined RW1, the doctor who initially treated the appellant. 5. The Tribunal, while considering the issue as to whether the accident took place due to the rash and negligent driving of respondent No.2, found that the evidence adduced by the appellant was not satisfactory or believable. The Tribunal came to the above conclusion primarily on the ground that RW1, who had examined the appellant at MAGJ hospital Mookkannur shortly after the accident, had recorded in the case sheet that the appellant was under the influence of alcohol. The doctor further recorded that the version given by the appellant was unbelievable. The Tribunal further noticed that there was some inconsistency in the evidence of the appellant (PW1) as regards the presence of one Biju along with him. M.A.C.A.No.433 OF 2009 :: 3 :: 6. It appears that the case of the respondents as could be revealed from the cross examination of PW1 was that the appellant himself was driving the autorikshaw and not respondent No.2. But significantly respondent Nos.1 and 2 did not choose to contest the case. More importantly, the police had registered a case against respondent No.2 on the basis of the statement given by the appellant at St.James hospital, Chalakudy. Ext.A1, which is a true photocopy of the First Information Report, will clearly show that the appellant was questioned by the police. Ext.A2 scene mahazar and Ext.A3 charge sheet filed by the police after investigation of the crime will also show that an accident involving the auto referred to above had in fact occurred on August 5, 2005. Further, Ext.A5 report of the Assistant Motor Vehicles Inspector will also corroborate the version given by the appellant that the autorikshaw was involved in the accident. 7. The short question that arises for consideration is whether the Tribunal was justified in disbelieving the case of the appellant in the backdrop of the above facts and circumstances. In our view, the answer has to be in the negative. 8. As has been mentioned earlier, the case of the respondents is that the appellant himself was driving the auto and not respondent No.2. This necessarily means that respondent No.3/insurance company also admits that an accident involving the autorikshaw did in fact take place. If that be so, we M.A.C.A.No.433 OF 2009 :: 4 :: do not find any reason why reliance cannot be placed on the police records and also the report of the Assistant Motor Vehicles Inspector. Still further, the medical records available in the case will also establish that the appellant had sustained some injury in a road traffic accident, which occurred on August 5, 2005. In that view of the matter, we have no hesitation to hold that the appellant was a victim in a road traffic accident. 9. The next question is whether the case should be remitted back to the Tribunal for a fresh consideration. Learned counsel for the appellant submits that the appellant will be satisfied if a reasonable compensation is fixed by this court itself. We have perused the medical records. PW2, the doctor who issued Ext.A7, has assessed the disability of the appellant as 2.5%. The records will reveal that the appellant had sustained minor fracture on his metatarsal region of the left foot. It is further revealed from the records that the appellant had spent about Rs.6,300/- towards medical expenses. 10. We have heard Smt.P.K.Santhamma, learned counsel for the insurance company who submits that the Tribunal had considered the entire aspects of the case in their true perspective and rightly rejected the claim petition. 11. Keeping in view the entire facts and circumstances of the case, we are satisfied that the appellant can be granted a lump sum of Rs.25,000/- as compensation. Respondent No.3 shall pay the said amount of compensation M.A.C.A.No.433 OF 2009 :: 5 :: with 7.5% interest from the date of petition till the date of payment. The insurance company shall deposit the amount before the Tribunal within one month from the date of receipt of a copy of this judgment. On deposit of the amount, the appellant shall be entitled to withdraw the same. Writ appeal is disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes