IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 MACA.No. 436 of 2007(C) ---------------------- OPMV.1758/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/PETITIONER ------------------------------------- MURALI, S/O.BHASKARAN, KOROTTUPARAMBIL HOUSE, U.C.COLLEGE P.O. ALUVA. BY ADV. SRI.V.K.VEERAVUNNY SRI.K.Y.TOMY SRI.P.B.SUNEER SRI.K.S.ARUN BABU RESPONDENT(S)RESPONDENTS: ------------------------------------ 1. SRI.ABHILASH JOY, S/O.JOY NJANAKKAL HOUSE, PATTERIPURAM, THAIKKATTUKARA P.O. ALUVA. 2. M/S.NEW INDIA ASSURANCE CO.LTD BRANCH OFFICE, P.B.NO.108, KODAVATH SHOPPING COMPLEX, SUB JAIL ROAD, ALUVA. ADV. SMT.P.K.SANTHAMMA FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 436 OF 2007 = = = = = = = = = = = = = = = Dated this the 25th day of September, 2008. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Perumbavoor in O.P.(MV)1758/02. The claimant sustained injuries on the meta carpel bone alleged to be as a result of the accident. The Tribunal did not find in favour of the claimant and dismissed the case. It is against that decision the claimant has come up in appeal. 2. Heard the counsel for both sides. It is the case of the claimant that while he was returning back after seeing a drama on 18.4.02 midnight an auto rickshaw driven by the first respondent came in a rash and negligent manner and hit on his bicycle resulting in injuries to him. The documents produced would reveal that he visited the hospital first only on 20.4.02 and after X-ray examination he was found to have sustained a fracture on the base of the 5th meta carpel bone. The Tribunal disallowed his claim on the ground that he did not go to the hospital after the accident and when he M.A.C.A. 436 OF 2007 -:2:- visited the hospital on 20.4.02 though he stated about the cause of accident as a result of the hit by an auto rickshaw he did not want the police to be intimated and therefore the Tribunal felt there are suspicious circumstances to hold against him. 3. On the other hand the learned counsel for the appellant very strongly contends before me that as there was no serious complications he did not go to the hospital immediately after the accident and on 20.4.02 as he did not know about the seriousness of the injury including the fracture, the police was not informed and only on 22.4.02 when X-ray revealed the fracture of 5th meta carpel bone he preferred a private complaint on 27.4.02. It was referred to u/s 156(3) for investigation and ultimately accused entered appearance before Court, pleaded guilty and was convicted u/Ss. 279 and 338 IPC and sentenced to pay a fine of Rs.1,500/-. It is true that the claimant has not been very vigilant. I had also read the entire evidence of him which would show that he is not uttering falsehood. He appears to M.A.C.A. 436 OF 2007 -:3:- be a rustic person and as he did not feel anything serious after the accident he never complaint to the police. But immediately he realised about the seriousness he visited hospital on 20.4.02 and had mentioned to the Doctor about the cause of the accident as a road traffic accident, i.e. hit by an auto rickshaw. He cannot be blamed for the delay. The police after due investigation also filed a charge sheet against the auto rickshaw driver who pleaded guilty later. So the materials supplied in the form of evidence of PW1 and investigation as well as the final judgment of the criminal Court all would indicate that there is every probability that an accident had taken place as spoken to by PW1, the claimant. There is no contra evidence to hold it otherwise and it is a settled principle that the preponderance of probabilities have to be weighed in a case of this nature. I find that in spite of a searching cross-examination the evidence of PW1 does not suffer from any serious infirmity which appears to be intrinsically reliable evidence. Therefore I set aside the finding of the Tribunal and hold that the M.A.C.A. 436 OF 2007 -:4:- claimant had sustained injuries in a road accident caused by the first respondent. 4. The next question is the compensation. The claimant was a mason by profession. A perusal of the records made available before me by the learned counsel for the claimant would show that the radiological examination confirm the fracture and he was given below elbow plaster cast on 24.2.02. Documents would reveal that he had fracture on the base of the 5th meta carpel on the right hand. So considering these aspects I am inclined to award the compensation as follows. 5. For a mason by profession it is certain he would have been deprived from doing any work for a period of six to eight weeks for which I award him a sum of Rs.4,000/-. Towards treatment expenses I award him a sum of Rs.1,000/-, towards incidental expenses such as damages to clothing, extra nourishment etc. I award Rs.500/-, for pain and sufferings, a sum of Rs.5,000/- is granted. Certainly this fracture would have caused him at least temporary disability M.A.C.A. 436 OF 2007 -:5:- and loss of amenities for which I award a sum of Rs.2,000/-. Therefore the claimant will be entitled to a compensation of Rs.12,500/-. In the result the MACA is allowed and the claimant is awarded a compensation of Rs.12,500/- with 6% interest on the said sum from the date of petition till realisation and the insurance company is directed to deposit the same within a period of sixty days from the date of receipt of a copy of the judgment. M.N. KRISHNAN, JUDGE. ul/-