IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1838 of 2007()
1. THOMAS, S/O. KURIYAN,
... Petitioner
Vs
1. P.K. VIJAYALAKSHMI, W/O. PANKAJAKSHAN,
... Respondent
2. MANOJ, S/O. PANKAJAKSHAN,
3. UNITED INDIA INSURANCE CO. LTD.,
For Petitioner :SMT.M.R.SREELATHA
For Respondent :SRI.S.ARUN RAJ
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :16/10/2008
O R D E R
M.N.KRISHNAN, J.
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M.A.C.A No. 1838 OF 2007
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Dated this the 16thday 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
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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
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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:
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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
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