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Judgment
P.V. Asha, J.—The appellant is the claimant in O.P.(MV) No. 699/2000 on the files of the Motor Accidents Claims Tribunal, Ernakulam. The Tribunal dismissed the claim petition on the ground that negligence was on the part of the appellant. This appeal is filed against the finding of the Tribunal regarding negligence and consequential denial of compensation to him.
On 1.1.2009 while the appellant was driving his car bearing Reg. No. KL-5/B-1819 along the National Highway from north to south, at a place called Evoor, a Stage Carriage (K.S.R.T.C.) Bus bearing Reg. No. KL-15/3078, which came in the opposite direction, violently hit the car and caused very severe injuries to him and his wife who was travelling along with him. They were immediately taken to the Medical College Hospital, Alappuzha and thereafter to the Ernakulam Medical Centre. He underwent inpatient treatment there, for the period from 2.1.1999 to 27.1.1999 and from 7.4.99 to 16.4.99. From Ext. A2 treatment certificate issued from Ernakulam Medical Centre, it can be seen that the appellant sustained multiple sutured wounds, fractures of [1] (R) ulna, [2] 2nd/3rd/4th ribs � side, [3] � parasymphysis of mandible with communition, [4] (L) angle of mandible, [5] (L) condyle of mandible, avulsion of +1 tooth, alveolar fracture - lower anterior region and fractures of 2121+2 teeth. Wound debridement was done for � forearm. It is also seen that he underwent tracheostomy wound debridement for forearm, open reduction and internal fixation of mandibular fractures, extraction of teeth, secondary repair of facial lacerations, POP cast during the period of his treatment there from 2.1.99 to 27.1.99. It further shows that POP cast and arch bars were removed on 27.2.99. He was again admitted there, on 7.4.99 with residual deformity for which sagittal split osteotomy was done. He was discharged from there, on 16.4.99. Thereafter he was again admitted on 24.5.99 for removal of arch bars and elastics, root canal treatment etc.
Before the Tribunal evidence was adduced examining P.Ws. 1 to 4 and marking Exts. A1 to A17. The appellant was examined as P.W. 1, his wife Smt. Mangala was examined as P.W. 2, an outsider Sri Karthikeyan was examined as P.W. 3 and Surveyor was examined as P.W. 4. Respondents 1 and 2 - KSRTC and driver of the bus, remained exparte. The 3rd respondent Insurance Company, though filed a counter affidavit, did not adduce any evidence. The appellant''s wife had also filed O.P.(MV) 706/2000 seeking compensation towards injuries she sustained in the very same accident. Both the cases were tried together.
Issue No. 2 considered by the Tribunal was: whether the incident occurred due to rash and negligent driving of the 2nd respondent. In the claim petition as well as in the deposition, P.Ws. 1 and 2 asserted that the accident occurred on account of the negligence of the driver of the KSRTC bus. At the same time it was the case of the Insurance Company that, the accident occurred on account of the negligence of the appellant herein. In the F.I. statement as well as the crime registered, the driver of the bus was implicated as the accused. In the final report filed by the Police, the appellant was shown as accused. However he was acquitted by the Magistrate Court by judgment in C.C. No. 110/1999. The Tribunal found that the testimony of P.Ws. 1 and 2, i.e. that of the appellant and of his wife were self serving and interested. Regarding the independent witness P.W. 3, the Tribunal found that he was not a genuine eye witness to the occurrence. It was further stated that he was not a witness to the prosecution charges and he could not state the actual colour of the car. For these reasons, the Tribunal came to the conclusion that the appellant failed to prove negligence on the part of the driver of the bus. The Tribunal also found fault with the appellant in not producing the scene mahazar, observing that it was a vital document capable of drawing adverse inference against them. A further reasoning for the finding against the appellant was that the claim petition was initially filed under Sections 163A as well as 166 of the Motor Vehicles Act. According to the Tribunal the very act in filing the petition under that provision - Section 163A, was also a pointer to infer his role in the mishap. The Tribunal further found that even after the implication of the 2nd respondent driver of KSRTC bus as the accused in the F.I. statement and the crime, the Police had finally come against the appellant. It was therefore found that the claimants ought to have adduced fool proof evidence on the rashness and negligence on the part of the 2nd respondent, in which they failed. The Tribunal drew adverse inference against the appellant for not producing the scene mahazar. On the basis of these findings both the claim petitions were rejected.
The learned counsel appearing for the appellant contended that the findings rendered by the Tribunal are contrary to the evidence on record and there was no reason to disbelieve the claimants or the independent witnesses. It was pointed out that the appellant herein was driving the car with due care and caution. He is a retired Lieutenant Colonel, who was running a business after his retirement from Army. He was driving his car along with his wife, who retired as a Principal. The accident occurred at about 11 a.m. on 1.1.1999. It is pointed out that in the absence of any evidence to the contrary and especially when the Insurance Company did not adduce any evidence, the Tribunal ought not have rejected the claim petition. It is also pointed out that mere non production of scene mahazar cannot be a ground for drawing adverse inference and to dismiss the claim petition. The appellant and his wife sustained very severe injuries. The stage carriage bus was coming in the opposite direction. As far as the testimony of P.W. 3 independent witness is concerned, it was not correct on the part of the Tribunal to disbelieve him on the ground that he was not aware of the colour of the car. It is asserted that P.W. 3 had answered the question regarding the colour of the car correctly, despite the fact that evidence was adduced in the year 2007, whereas the accident took place in the year 1999.
The learned counsel appearing for the Insurance Company vehemently opposed the contentions raised on behalf of the appellant. It was pointed out that the scene mahazar would have been the best evidence to prove the negligence and that the appellant and his wife did not substantiate their contentions regarding negligence on the part of the driver of the KSRTC bus.
We have considered the rival contentions on either side, with reference to the materials on record.
In support of the contention of the appellant that the accident occurred on account of the negligence of the driver of the KSRTC bus, the appellant had produced Ext. A14 F.I. statement, Ext. A1 F.I.R. in Crime No. 2 of 1999 of Kareekulangara Police Station, Ext A9 judgment in C.C. No. 110/1999, Ext. A10 report of the A.M.V.I., apart from the photographs of the damaged car, survey reports, wound certificate, treatment certificate, etc. F.I. statement was given by the wife of the appellant, in which it was recorded that the accident occurred on account of the negligence of the driver of the K.S.R.T.C. bus. In the F.I.R. leading to Crime No. 2/99, which was marked as Ext. A1, the 2nd respondent driver was implicated as the accused. Ext. A9 is the judgment in C.C. No. 110/1999 by which the appellant was acquitted under Section 255(1) Cr.P.C. Hence there is nothing on record which shows any negligence on the part of the appellant. Nothing was brought about in the cross examination to indicate anything against the appellant. There is no circumstance to disbelieve their testimony. All the witnesses deposed to the effect that the bus came in high speed after overtaking another vehicle, hit the car and dragged it. According to P.W. 3, a labourer he was engaged for construction work of a road near the place of accident and he witnessed the accident on the way to tea shop. He deposed that the bus which came from the opposite direction after overtaking a vehicle, hit the car and dragged it, when it turned around and went to the other side of the road. Even though he initially deposed that the colour of the car was green, he subsequently corrected it as white.
On a perusal of the evidence on record, we find that there is no evidence to the contrary adduced by the respondents in order to arrive at a finding that the cause for the accident was not because of the negligence on the part of the driver of the bus. Before the Tribunal respondents 1 and 2 herein remained exparte in both cases. Thus they have not denied the allegation of negligence on the part of the 2nd respondent driver. A head on collision had occurred and the Contessa car, in which the appellant and his wife were travelling, sustained heavy damage; while the appellant and his wife sustained very severe injuries also.
In the light of the judgment of the Supreme Court in Jiju Kuruvila and Others Vs. Kunjujamma Mohan and Others, and Meera Devi and Another Vs. H.R.T.C. and Others, , there cannot be any finding regarding negligence or even contributory negligence in the absence of any independent and cogent evidence. In Jiju Kuruvila''s case the Tribunal had found 25% negligence on the deceased who was driving the car. High Court enhanced it to 50%. The insurance company relied on the scene mahazar and postmortem report to suggest negligence on the part of the deceased and that he was intoxicated. Regarding the conclusions based on scene mahazar, the Apex court held as follows.
"24. The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc., From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.
Post Mortem report, Ext.-A5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal as his stomach was half full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit.
The aforesaid evidence, Ext.-A5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext.-B2, ''Scene Mahazar'' and the Ext.-A5, post mortem report cannot take the place of evidence, particularly, when the direct evidence like P.W. 3, independent eye-witness, Ext.-A1(FIR), Ext.-A4(charge-sheet) and Ext.-B1(F.I. statement) are on record.�
In the present case,the intensity of collision is evident from the damages sustained on the contessa car of appellant, which is clear from the testimony of witnesses as well as the report of the Surveyor and from the photographs. The evidence on record before the Tribunal was sufficient to substantiate the claim of the appellant regarding negligence of the driver of the stage carriage bus. Therefore, we vacate the finding rendered by the Tribunal that the accident occurred on account of the negligence of the appellant.
Once we have found that the accident occurred due to negligence on the part of the driver of the offending vehicle, we have to look into the damages sustained and the compensation payable towards the same. The Tribunal has not looked into the claims regarding compensation, on account of the findings rendered by it on issue No. 2, against the appellant. Since the accident occurred in the year 1999 and records are available for assessing the compensation, we are of the view that justice will be rendered if we consider the claims on the basis of the materials available on record and fix the quantum of compensation based on it.
The appellant has claimed a total compensation of Rs. 5 lakhs. We have already explained the injuries sustained by him and the treatment he underwent. The claim raised towards transportation to hospital is Rs. 5,000/-. It is seen that the accident occurred at Kareekulangara in Alappuzha district. The appellant was under treatment for one day in the Medical College Hospital, Alappuzha and thereafter he underwent inpatient treatment at Ernakulam Medical Centre for the period from 2.1.1999 to 27.1.1999 and from 7.4.1999 to 16.4.99, i.e. for a period of 36 days. Apart from that, he had to continue outpatient treatment for a long period. Medical bills have been produced as per Ext. A3 series consisting of, a set of 17 bills for a sum of Rs. 81,573.50, another set of 41 bills for Rs. 34,909.30 and another set of 36 bills for a sum of Rs. 6032/- for the period from 4.1.99 to 26.6.99. Ext. A2 treatment certificate dated 13.7.99 shows the period of treatment in Ernakulam Medical Centre from 2.1.99 to 24.5.99 on intermittent spells, as explained above. It can be seen that the appellant sustained very serious injuries and he had to suffer much on account of the fractures sustained on his arm, ribs, wounds on his face, condyle of mandibles, avulsion of tooth and alveolar fracture. From the treatment certificate itself it can be seen that the appellant had to undertake several visits to the hospital and he had to continue out-patient treatment thereafter. Under the head ''transport to hospital'', we award a sum of Rs. 2,000/-. The appellant has claimed damages to clothings, articles as well as damages caused to the car. Towards damages to clothing, we award a sum of Rs. 500/-.
The appellant has claimed a sum of Rs. 90,000/- towards loss of earnings. It was claimed that the appellant was running a business after his retirement and he was earning Rs. 10,000/- per month. In support of his claim regarding the business, he produced Ext. A4 partnership agreement. As per this deed, the appellant is the managing partner of the partnership company by name ''May King Ventures''. The maximum amount of remuneration payable to the managing partner is stated therein as Rs. 36,000/- per annum. This is apart from the profits and losses of the partnership to be shared as 60% to the Managing Partner, the appellant and 40% to the other partner. In the cross examination, nothing was brought about to refute his claim regarding the income. The appellant deposed that he was unable to do the business subsequent to the accident, on account of the injuries sustained. We are of the view that a sum of Rs. 4000/- can be fixed as his monthly income from the business. Having regard to the fact that the appellant was under inpatient treatment from January, 1999 to May, 1999, it is quite probable that he would have been unable to undertake any work at least for a period of six months. Reckoning his income @ Rs. 4,000/- per mensem, a sum of Rs. 24,000/- is awarded under the head ''loss of earnings''. We award a sum of Rs. 3,000/- towards extra nourishment, Rs. 2,600/- towards attendant expenses for 26 days and we award the entire amount covered by Ext. A3 series of medical bills, i.e. Rs. 1,23,000/- towards medical expenses. The appellant has claimed a sum of Rs. 1,00,000/- towards pain and suffering, Rs. 30,000/- towards disfiguration, Rs. 1,00,000/- towards compensation for disability, Rs. 2,00,000/- for loss of earning power and Rs. 50,000/- each for loss of amenities, shortening expectation in life, loss of 4 teeth and for future treatment. There is no document assessing the disability or disfiguration of the appellant. On account of the accident, the appellant had sustained very severe injuries and pain which he would have suffered consequent to this. On account of alveolar fracture, fracture of bones on his arm, to the ribs etc. the appellant would have caused very serious discomfort and inconvenience to him. Therefore, we award a sum of Rs. 25,000/- towards pain and sufferings. It is seen that he had lost 4 teeth. Therefore we award a sum of Rs. 20,000/- towards the same. Having regard to the fact that the injuries sustained on the appellant had very seriously affected him, especially the fracture on his ribs, wounds on his face, etc. and he had deposed that he was unable to carry on his business any further, subsequent to the accident, we award a sum of Rs. 50,000/- under the head ''disability compensation''.
Accordingly we award the compensation in the following manner:
The appellant will be entitled to a total compensation of Rs. 2,51,100/- (Rupees Two lakhs fifty one thousand and one hundred only) and the amount will carry interest @ 9% per annum from the date of petition.
Respondents 1 and 2 are liable to compensate the appellant. As there is a valid insurance policy for the offending vehicle, the 3rd respondent has to indemnify them. Hence the 3rd respondent is given 3 months'' time to deposit the amount of Rs. 2,51,000/- before the Tribunal and on such deposit being made, the claimant can withdraw the amount.
The appeal is allowed accordingly. The parties will bear their respective costs in the appeal.