BY AD v. SRI.JOHN JOSEPH VETTIKAD

also challenged by them. MACA No.857 OF 2011 3

3. The evidence in this case consists of Ext.A1 to A11 and from the side of the 2nd respondent the copy of the policy was marked as Ext.B1. After the trial, the Tribunal came to the conclusion that the appellant failed to prove that the accident occurred due to the negligence on the part of the 1st respondent, and accordingly, the claim petition was dismissed. A finding was also entered into the effect that, the accident occurred due to the negligence of the appellant himself. However, the Tribunal found that, the appellant sustained injuries in an accident arose out of use of motor vehicle. Challenging the said finding this appeal is filed.

4. Heard Smt.Aney Paul, learned counsel appearing for the appellant, Sri.S.Sachithananda Pai, the learned counsel for the 1st respondent and Sri.John Joseph Vettikad, learned counsel appearing for the 2nd respondent/insurer.

5. The first question to be considered is with regard to negligence. The Tribunal after placing reliance upon the scene mahazar found that, as there is no indication of any damage being sustained to the jeep or the concrete post at which the vehicle hit, the appellant failed to prove the negligence on the part of the 1st respondent. However, the MACA No.857 OF 2011 4 crucial aspect to be notice is that, the manner in which the accident occurred has been clearly mentioned in Ext.A6 wound certificate prepared at the time when he was admitted to Lakeshore Hospital, Ernakulam. In the said certificate, the history and alleged cause of injury was mentioned as follows: “Patient was sitting back of a jeep, which when reversed hit a post at around 4.15 pm on 18.08.2004 at Nedumkandom. “

6. The said wound certificate was prepared at 12.10 am on 19.08.2004. The accident occurred on 18.08.2004 at

4.30 pm. Initially the appellant was taken to Karuna Hospital, Nedumkandam and from there he was taken to Indo American Hospital, Vaikom. From there, he was referred to Lakeshore Hospital, as observed from Ext.A6. As it is evident that Ext.A6 wound certificate, which was prepared after the accident, the reason of the accident was shown and the said reason is in tune with the version of the appellant as to the accident as narrated in the claim petition. Moreover, the Nedumkandam Police registered Crime No.198 of 2004 in connection with the accident and Ext.A1 is the FIR and FIS. After conducting the investigation the Police submitted Ext.A3 final MACA No.857 OF 2011 5 report implicating the 1st respondent herein as the accused for the offences punishable under Sections 279 and 337 IPC.

7. From the observations made by the Tribunal, the important aspect to be noticed in this regard is that, appellant was a boy aged 11 years at the time of the accident and therefore, negligence on his part could not have been attributed under any circumstances. Moreover, the fact that he was travelling on the back side of the jeep while the same was being driven in the reverse direction is very much evident from the records, including the wound certificate. Apparently, the Tribunal rejected the case advanced by the appellant mainly on the reason that, in the records no damages were recorded for the electric post and the jeep. However, the said reason by itself cannot be a ground to discard the other available pieces of evidence in the form of medical records and the relevant entries as to the accident contained in the contemporaneous documents including the wound certificate. Moreover, an investigation has been conducted by the Police in respect of the accident, and Ext.A3 final report has been filed implicating the 1st respondent as the accused therein. It is a well settled position of law as per New India Assurance MACA No.857 OF 2011 6 Co.Ltd v, Pazhaniammal [2011 (3) KLT 648], wherein a Division Bench of this Court categorically observed that in the absence of any contra evidence, the conclusion arrived by the Police after conducting investigation in connection with the accident can be accepted as the prima facie proof for determining the question of negligence in a proceedings under Section 166 of the Motor Vehicles Act. In this case, Ext.A3 is already on record, filed against the 1st respondent but yet no contra evidence was adduced by any of the respondents. Moreover, I am of the view that the finding of the Tribunal holding the minor boy aged 11 years negligent for the accident is also erroneous.

8. In such circumstances, I do not find any justifiable reason for upholding the finding of the Tribunal and accordingly it is set aside. It is held that the accident occurred due to the negligence on the part of the 1st respondent.

9. The next question that arises is whether the 2nd respondent can be held liable to pay the compensation. Specific contention raised by the 2nd respondent in this regard was that the policy issued in this case is only an “Act Only” MACA No.857 OF 2011 7 policy, which does not extend to provide coverage to the passenger carried in the said vehicle. Ext.P1 is a copy of the policy, and the terms and conditions of the policy were also produced along with the same. The said document would fortify the contention raised by the appellant as the coverage provided therein was applicable only to third-party damages, and it does not extend to the passenger carried in the vehicle. Therefore, no liability can be fastened upon the 2nd respondent in the absence of any coverage provided to the passenger carried in the said vehicle and it is held accordingly.

10. The next aspect relates to the quantum of compensation. Since the Tribunal dismissed the claim petition, the quantification of the compensation was not done. However, considering the fact that the accident in this case occurred in the year 2004, I do not find it appropriate to remand the matter to the Tribunal for adjudicating the question of quantum, to the Tribunal as it would cause serious prejudice to the appellant, since it would result in a further delay in the matter. Therefore, I am inclined to determine the quantum of compensation on the basis of the materials placed on record. MACA No.857 OF 2011 8

11. Ext.A6 is the wound certificate and Exts.A7 and A8 are the discharge summary issued by Lakeshore hospital and MOSC Medical College Hospital, Kolenchery. Details of the injuries noted in A6 are as follows: “Conscious, disoriented, restless history of vomiting present. Black eye left side, signs of bleeding from right ear and nose. Abrasion right temporal area, endotracheal tube insitu. CT Scan of head-fracture right temporal bone, pneumo cephalus + no intra cranial haematoma or contusion. X-ray L spine, chest and pelvis within normal limits. He was admitted under department of neurology and diagnosed to have CSF rhinorrhea and developed pyogenic meningitis. The patient also had partial 6th nerve palsy (right), partial left third nerve palsy, light LMN facial palsy and bilateral 9th and 10th nerve palsy.”

12. The records would also indicate that he continued treatment as in-patient for a period of 35 days in Lakeshore hospital and thereafter, for a further period of 29 days in MOSC Medical College Hospital, Kolenchery. However, no disability certificate was produced before the Tribunal. During the pendency of this appeal, the appellant was referred to the Medical Board for assessment of disability as per order dated

24.01.2020. Even though the appellant was directed to MACA No.857 OF 2011 9 appear before the Medical Board, for subjecting himself for assessment of permanent disability, he did not appear and no assessment of physical disability could be made. In such circumstances, in the absence of materials showing the physical disability, no compensation can be granted for the said purpose. However, the available documents would clearly indicate that he sustained very serious head injury and consequent to the same, he availed in-patient treatment for a period of about 65 days. In such circumstances, a reasonable compensation has to be granted for pain and suffering and loss of amenities as well. In the facts and circumstances of the case, I deem it appropriate to grant an amount of Rs.25,000/- towards pain and sufferings and Rs.20,000/- towards loss of amenities. Ext.A10 is the medical bills produced. Total amount covered as per the bills is Rs.1,68,591/-. On scrutinizing the bills it is seen that all the said bills are original bills issued by the hospital where the appellant availed treatment. Therefore, the said bills can be accepted and accordingly an amount of Rs.1,68,591/- is awarded. MACA No.857 OF 2011 10

13. Ext.A11 series are the taxi receipts submitted by the appellant for a total amount of Rs.1,964/-. The said bills can be accepted in view of the fact that the appellant who is a native of Nedumkandom was brought to Ernakulam for treatment purpose. Thus, an amount of Rs.2,000/- is awarded under the said head. Considering the records available and the nature of injuries and other relevant circumstances, the total compensation is worked out in the following manner. HEAD AMOUNT(Rs.) Transportation Damage to Clothing Extra nourishment Medical Expenses 2,000/- 500/- 1,000/- 1,68,591/- Bystander Expenses 6,500/- (65 x 100) Pain and suffering Loss of amenities TOTAL 25,000/- 20,000/- 2,23,591/- In the result, this appeal is allowed setting aside the award passed by the Tribunal in O.P.(MV).No.68 of 2005 dismissing the claim petition. The claim petition is allowed, by holding that the accident occurred due to the negligence on the part of the 1st respondent. As it is found that the policy issued by the 2nd respondent for the vehicle was only an “Act MACA No.857 OF 2011 11 only” policy, no coverage was available for the risk of the passenger carried therein and hence the 2nd respondent is exonerated from the liability. The quantum of compensation is fixed as Rs.2,23,591/- [Rupees two lakhs twenty three thousan five hundred and ninety one only]. The said amount shall be recoverable by the appellant from the 1st respondent herein with interest @ of 7.5% from the date of petition till realization with proportionate costs. scs/DG/19.1.24 Sd/- ZIYAD RAHMAN A.A. JUDGE