IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 AS.No. 496 of 1999(D) --------------------- OS.239/1997 of II ADDL.SUB COURT, KOZHIKODE .................... APPELLANT/DEFENDANT: ---------------- SUSHANTH, AGED 20L; YEARS, S/O.UNNEERIKUTTY, SUDI NIVAS, AYYAPPANKAVU PARAMBA, NADUVATTOM AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT/PLAINTIFF: ------------------- A.B.SIHAB, AGED 8 YEARS (MINOR), BY GUARDIAN BASHA A.B. MOIDEENKOYA, S/O.POKU, AGED 48 YEARS, ITTATTIL PARAMBA, NADUVATTOM AMSOM DESOM, KOZHIKODE. ADV. SRI.AVM.SALAHUDIN THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 08/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.3956/99 IN A.S.496/1999 -------- Dismissed 8/12/2009 Sd/- HARUN-UL-RASHID, JUDGE. HARUN-UL-RASHID,J. -------------------------- A.S.NO.496 OF 1999 -------------------------- DATED THIS THE 8TH DAY OF DECEMBER, 2009 JUDGMENT Defendant in O.S.No.239/97 on the the file of the Sub Court, Kozhikode is the appellant. The suit was filed for compensation. The suit was partly decreed by the trial court allowing the plaintiff to realise a sum of Rs.13,000/- with 12% interest from the defendant and his assets. Aggrieved by the same, the defendant has preferred this appeal. The cause of action alleged is the accident, which occurred on 21/2/1995 at 7.30 p.m. According to the plaintiff, he was walking along the road from east to west. While so, a bicycle on which the defendant was riding, hit on the body of the plaintiff, as a result of which he fell down and sustained fracture injury on the left leg and sustained other injuries. Plaintiff claimed a total compensation of Rs.31,500/-. 2. The defendant denied the plaint allegations. He contended that no such accident as alleged in the plaint occurred on that day and that the injury on the body of the plaintiff was caused as a result of a fall. The defendant totally denied the claim preferred by the plaintiff. 3. In support of the claim for compensation PWs.1 to 4 were examined and Exts.A1 to A3series were marked. On the side of the defendant three witness including the defendant were examined. The suit was filed as an indigent petition by the minor plaintiff. PW-3 is the plaintiff. 4. The trial court, after conducting enquiry, declared that PW3 is a competent witness. He testified before the court below that the bicycle driven by the defendant hit on his back side and due to the hit he fell on the ground and he was over run by the cycle. He also testified that at the time of accident there was a load of one sack full rice on the cycle. Some of the persons, who have gathered at the place of incident lifted him from the ground and took to a local physician on a scooter. PW-2 is the local physician. He dressed plaintiff's wounds by tearing a portion of his pant and advised the bystanders to take him to the Medical College Hospital, where he was admitted as an inpatient. According to PW3, who is minor, the cause of injury noted in the medical record was stated by the defendant and his father. The plaintiff underwent treatment in the Medical College as an inpatient for five days. Plaster applied on his left leg was removed only after six weeks. Plaintiff evidence was corroborated by the evidence of PWs.1, 2 and 4. PW1 is the plaintiff's father. PW2 is the local physician, who had given first aid to the plaintiff. PW2 testified before the court below that the defendant, Sidhique, Prajish and others had taken PW3 to his house, after the accident. PW2 testified that he examined the boy and found that both bones of his left leg below the knee were broken. He also noted some other external wounds. He dressed the external wound and advised the bystanders to take the injured to the Medical College Hospital. The evidence of PWs.1, 2 and 3 was corroborated by the evidence of PW4 Sidhique, who accompanied the plaintiff to PW-2's house. 5. The trial court also examined in detail the contentions raised by the defendant. The defendant denied the allegation that he had taken PW3 to the residence of PW2. According to him, the accident happened not because of the cycle hit. It is a simple fall totally unconnected with the cycle hit. DW2 is a witness examined by the defence side to prove the defence case. Oral evidence was tendered by DW1, who's evidence does not inspire the confidence of the court below. The trial court held that the cross-examination of DWs.1 and 2 would show that they are not telling the truth. The trial court also held that DW2 is a tutored and entrusted witness. On an examination of the oral and documentary evidence tendered by the parties, the trial court held that the plaintiff is entitled to compensation. The trial court also relied on the medical records produced by the plaintiff and observed that it is only reasonable to believe that the cause of injury was as stated by the plaintiff and the plea raised by the defendant and his conduct show that somehow or other he wanted to absolve from the liability. 6. Though the total compensation claimed by the plaintiff is Rs.31,500/-, the trial court fixed the compensation at Rs.13,000/- and passed a decree for realisation of a sum of Rs.13,000/- with interest at 12% from the date of suit till realisation. The oral and documentary adduced by the plaintiff would go to show that the accident as alleged in the plaint had occurred due to the rash and negligent act of the defendant and therefore the defendant is liable to pay the compensation. In the light of the evidence and attendant circumstances, I do not find any reason to interfere with the findings arrived at by the trial court. In the result, the appeal fails and accordingly dismissed with costs. HARUN-UL-RASHID, JUDGE. kcv. HARUN-UL-RASHID,J. -------------------------- A.S.NO.496 OF 1999 -------------------------- JUDGMENT 8th December, 2009