IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA No. 617 of 2003()
1. RADHAKRISHNAN K.M., AGED 32 YEARS,
... Petitioner
Vs
1. T.G.DINESH S/O. GOPI, THRIPPEKULATH
... Respondent
2. THE BRANCH MANAGER, NATIONAL INSURANCE
For Petitioner :SRI.M.A.ABDUL HAKHIM
For Respondent :SMT.SARAH SALVY
The Hon'ble MR. Justice K.PADMANABHAN NAIR
Dated :25/10/2007
O R D E R
K. PADMANABHAN NAIR ,J.
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M.A.C.A.No.617 of 2003
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Dated, this the 25th day of October, 2007
JUDGMENT
The claimant in O.P.(MV) No.1137/1995 on the file of the Motor Accidents
Claims Tribunal, Irinjalakuda is the appellant. Appellant filed the Original
Petition alleging that on 5.2.1995 at about 9.15 p.m. he sustained injuries in a
motor vehicle accident. In the Original Petition it was averred that he was walking
along the road which lies in front of Chalakudy KSRTC bus stand from east to
west and when he reached in front of Kallarakkal Auto Service a motor cycle
bearing registration No.KL-8/D 2177 in which first respondent was riding came
from behind and hit against his person causing serious injuries. Immediately after
the accident the appellant was taken to the hospital by the first respondent rider
and his friends. Appellant regained consciousness took conscious on the next day
and informed his brother that he sustained the injuries in a motor vehicle accident.
Information was given to the Chalakkudy Police by the brother and the Police had
registered a case against the first respondent. It was averred that the accident
occurred due to the negligence of the first respondent. Vehicle was covered with
a valid policy of insurance issued by the second respondent. Appellant initially
claimed an amount of Rs.60,000/- as compensation and subsequently it was
enhanced to Rs.1,00,000/-.
2. First respondent filed a written statement admitting the accident. It
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was contended that on 5.2.1995 at about 9.15 p.m. while first respondent was
riding motor cycle bearing registration No.KL-8/D 2177 very slowly and
observing traffic rules and when the vehicle reached in front of Kallarakkal Auto
Service the alleged accident occurred. First respondent paid an amount of
Rs.1,000/- to the appellant by way of compensation. It was also contended that
the vehicle was covered with a valid policy of insurance. Quantum of
compensation claimed was disputed and negligence alleged was denied.
3. Second respondent insurer also filed a written statement admitting
that the vehicle was covered with a valid policy of insurance. It was contended
that there was violation of policy conditions. It was contended that the rider was
not holding driving licence. Age,income, etc. of the appellant were denied. It was
contended that no accident-cum-wound certificate was produced to prove that
appellant sustained injuries in a motor vehicle accident. Quantum of compensation
claimed was disputed. It was also contended that the appellant did not sustain any
injury in a motor vehicle accident. Hence the insurer is not liable to indemnify the
compensation.
4. Before the Tribunal the appellant gave evidence as PW1. He
examined a Doctor attached to Thrissur Medical College and produced Exts.A1 to
A13. First respondent owner-cum-rider produced a copy of the driving licence.
The Tribunal found that in the normal course the appellant is entitled to get
Rs.48,300/- as compensation; but dismissed the application holding that the
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appellant failed to establish that he sustained injuries in a motor vehicle accident.
Challenging that award this appeal is filed.
5. Learned counsel appearing for the appellant has argued that the
Tribunal failed to note that the first respondent who is the owner-cum-rider of the
vehicle had admitted the accident and as such the insurer cannot be allowed to
contend that no such accident took place. It is averred that since the owner-cum-
rider admitted the accident there was no need to prove a fact which was admitted
and that is why the appellant did not adduce any evidence regarding the accident.
In column No.28 of the Original Petition it was averred that the appellant was
walking along the road which lies in front of Chalakkudy K.S.R.T.C. Bus stand.
When he reached in front of the Kallarakkal Auto Service a motor cycle bearing
registration No.KL-8/D 2177 came from the rear side and hit against his person .
According to the appellant immediately after the accident he became unconscious.
He was taken to hospital by the first respondent rider and his friends. They tole the
Doctor that the appellant sustained injuries due to a fall in the bathroom. Such an
intimation was given to the Doctor by the first respondent to escape from the
criminal liability. According to the appellant he regained consciousness only on
the next day and immediately thereafter he informed his brother about the motor
vehicle accident and thereafter only the Doctor prepared the accident-cum-wound
certificate. As already stated the first respondent owner-cum-rider had admitted
the accident. It is also to be noted that there is nothing on record to show that the
MACA No.617/2003 -: 4 :-
insurer had obtained permission to contest the matter on merits. The case put
forward by the appellant was that he sustained injuries at about 9.15 p.m. on
5.2.1995; immediately after the accident he became unconscious; he was taken to
the hospital by the first respondent and his friends and after admitting him there
they gave the wrong information as regards the cause of injury. Ext.A6 is the
accident-cum-wound certificate in which it was recorded that the Doctor examined
the patient at 5 p.m. on 6.2.1995. But in the column provided for showing the
cause of injury it was stated that he was admitted with the history of a fall in the
bathroom and now the patient says that fall from a bike at 9 p.m. on 5.2.1995. In
the details a number was written as 97955 and one more number was written as
39547. The appellant was referred to Ortho. Ext.A9 is the discharge summary. A
reading of Ext.A9 shows that the appellant was admitted on 5.2.1995 and
discharged on 1.3.1995. That shows that the O.P.Number was 97955 and that was
converted as I.P.Number as 39547. Appellant has produced a treatment-cum-
discharge certificate also. That also shows the date of admission as 5.2.1995 and
he was discharged on 1.3.1995. But in that document the O.P.Number was written
as 39547 and I.P.Number was written as 97955. Appellant was admitted by Dr.
Prasad Varkey. Ext.A9 was also issued by that Doctor. There is some confusion
regarding date of admission, treatment, etc. in this matter. As I have already
stated before the Tribunal the owner-cum-rider of the vehicle admitted the
accident. That being the position there is much force in the argument advanced by
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the counsel for the appellant that the appellant never thought of proving an
admitted fact. There was variance between O.P. and I.P. Numbers and further it
is seen that the first history given was that it was a fall in bathroom and secondly it
was written as fall from bike. In view of the unsatisfactory evidence given by the
appellant it is not possible to accept his argument that since the owner-cum-rider
had admitted the accident compensation is to be paid by the insurer. Considering
all aspects of the matter I am of the view that the appellant be given another
opportunity to clear the doubts in the mind of the Tribunal and adduce further
evidence, if any. It is open to the appellant to file petitions to adduce further
evidence, if so advised.
In the result, appeal is allowed. Award passed by the Tribunal in O.P.(MV)
No.1137/1995 is hereby set aside in toto. Case is remanded to the Tribunal for
fresh disposal in accordance with law. Both sides will be given an opportunity to
adduce evidence, if so advised. Parties shall appear before the Tribunal on
10.12.2007.
K. PADMANABHAN NAIR,
JUDGE.
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