IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 2ND SEPTEMBER 2008 / 11TH BHADRA 1930 MACA.No. 1838 of 2007(A) ------------------------------ OPMV.2325/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/PETITIONER: ---------------------------------- THOMAS, S/O. KURIYAN, AGED 47 YEARS, AREEKKAL HOUSE, MEKKAD P.O., ATHANI (VIA), ERNAKULAM DISTRICT. BY ADV. SMT.M.R.SREELATHA SMT.K.M.BEENA RESPONDENTS: RESPONDENTS IN OP(MV): ---------------------------------------------- 1. P.K. VIJAYALAKSHMI, W/O. PANKAJAKSHAN, THOTTOTH HOUSE, IRANIKULAM P.O., NEAR IRANIKULAM TEMPLE, MALA-680 307. 2. MANOJ, S/O. PANKAJAKSHAN, THOTTOTH HOUSE, IRANIKULAM P.O., NEAR IRANIKULAM TEMPLE, MALA-680 307. 3. UNITED INDIA INSURANCE CO. LTD., SREEKUMAR BUILDING, P.B.NO1, SOUTH JUNCTION, CHALAKUDY. BY ADV. SRI.S.ARUN RAJ FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: J U D G M E N T NO REPRESENTATION FOR THE APPELLANT. APPELLANT ABSENT. COUNSEL ABSENT. APPEAL DISMISSED FOR DEFAULT. 2/9/2008 Sd/-M.N. Krishnan, Judge. ul/- // true copy // P.A. TO JUDGE. M.N.KRISHNAN, J. -------------------------- M.A.C.A No. 1838 OF 2007 --------------------- Dated this the 16th day of October, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, Perumbavoor, in OP(MV) 2325/02. The claimant would contend that while he was standing on the side of the road near the petrol bunk an autorickshaw driven by the 2nd respondent came in a rash and negligent manner ran over his leg resulting in injuries to him. The 3rd respondent Insurance Company has disputed the accident as well as the quantum of compensation. The Tribunal on appreciation of the materials, dismissed the application. It is against that decision, the claimant has come up in appeal. 2. Heard the counsel appearing for both sides. According to the learned counsel for the appellant, the Tribunal was not realistic in appreciating the matter and had been technical in dismissing the application. It is true that the accident had taken place in the evening of 1.10.2002. The claimant did not go to the hospital on the very same day. He would contend that he went to an Ayurvedic physician on the same day and purchased some oil for superficial use. On the MACA No. 1838/07 2 next day when he found swelling on his leg, with the help of his friends, he visited the Little Flower Hospital which on diagnosis found that he had sustained a fracture on the 4th metatarsal. Then a complaint has been preferred on 3.10.02 and the seen mahazar was prepared on 4.10.02. The police after due investigation charge sheeted the driver of the autorickshaw who received summons in the calendar case 3253/02. He appeared before the court, pleaded guilty and the criminal court has convicted him and sentenced him to pay a fine of Rs.2,750/-and in default to undergo imprisonment for 60 days. The learned Tribunal was suspicious because the claimant did not go to the hospital immediately after the accident. The accident had taken place in a remote area and that the claimant would have thought that there is no serious injuries involved. But, when he found swelling of his leg on the next day, he visited the hospital on the very same day and had given first information statement. As revealed from the case diary, it is specifically stated that very near the petrol bunk an autorickshaw has come and ran over his leg. Just because a person has gone to the hospital on the next day, one should not jump to the conclusion that everything is wrong with the case. Further, there is no specific averment for the Insurance Company MACA No. 1838/07 3 that there had been any collision between the driver of the autorickshaw and the claimant to raise this claim. In these types of cases, the materials available have to be scrutinised. The police, after due investigation, found that the driver of the autorickshaw was negligent and he had been convicted also. PW1 and PW2 had been examined and they had spoken about the accident and the negligence of the driver. Ext.X1 hospital chart also would show that at the earliest point of time the claimant had stated about the nature of the accident. A mere suspicion shall not defeat the ends of justice when there are authentic records otherwise to show that the accident had taken place. Therefore I set aside the finding of the Tribunal and hold that the claimant had sustained injuries in the accident due to the negligence of the autorickshaw driver. 3. The next question is regarding compensation. It is true that the Tribunal has not decided the compensation. With the help of the learned counsel for the appellant, it is found that the claimant had incurred medical expenses of Rs.1,197/-. He was a 42 year old agriculturist who was hospitalised for a period of 2 days with fracture of the 4th metatarsal. Therefore, I grant the compensation to the claimant as follows: MACA No. 1838/07 4 4. He would have been prevented from doing any work for a period of one month. I award him Rs.1,500/- under that head. Towards medical expenses, I grant a sum of Rs.1,200/-. Towards bystanders expenses, extra nourishment and transport expenses a sum of Rs.500/- is awarded. Towards pain and suffering, a compensation of Rs.5,000/- is awarded. Certainly for a 42 year old man with a fracture of the 4th metatarsal there would have been some loss of amenities, disability and enjoyment in life. Therefore, I grant Rs.3,000/- under that head. Therefore, the claimant will be entitled to a compensation of Rs.11,200/-. In the result, the MACA is partly allowed and the claimant is entitled to an additional compensation of Rs.11,200/- with 7 % interest on the said sum from the date of petition till realisation. The Insurance company is directed to deposit the amount within a period of 60 days from the date of receipt of a copy of this judgment. M.N.KRISHNAN, JUDGE vps MACA No. 1838/07 5