NATIONAL INSURANCE COMPANY LTD Vs. SHAJU T THURUTHEL

JUDGEMENT

(1.) THIS appeal is filed by the Insurance company. Respondent sustained serious injuries in an accident. According to the appellant, while he was travelling in a scooter bearing registration No. KL-5a 6199, motor car bearing registration No. KL-6 1297 came from the opposite direction and dashed against the scooter and as a result of the collusion he fell down and sustained serious injuries, namely, left temporal contusion, linear fracture of right temporal bone, tenderness on right upper chin, fracture on right clavicle, contusion with abrasion on the right scapula, contusion on the right shoulder, abrasion on the right hand and L. M. N. facial palsy. The accident occurred at 9. 15 p. m. on 25th July, 1995 at Mundupalam in Pala-Ramapuram road. The accident occurred because of the negligence of the driver of the car KL-61297. Information was given to the police and crime case No. 344/95 was registered in Pala Police station. He was removed to the nearby cherupushpam Hospital immediately after the accident and he was referred to the medical College Hospital, Kottayam where he was admitted as an inpatient and treated for a few days. But, for better management of the injuries, he was removed to the Medical trust Hospital wherein he was admitted and treated as an inpatient from 26th July, 1995 till 9th August, 1995, on which date he was discharged. He claimed compensation of rs. 4,24,500/ -. First and second respondents are the same as he was driver-cum-owner. Third respondent is the Insurance Company. Coverage of the offending car owned by the first respondent by the policy of insurance issued by the third respondent Insurance company at the time of accident is not disputed. First respondent in the written statement denied the accident involving his vehicle. He also stated that even though police registered crime (Ext. A-1 is the F. I. R.), after investigation a refer report (Ext. B-1)was filed. According to the first respondent, he found the petitioner lying on the road at perumalakunnu Bhagom whereupon the first respondent stopped his car and took the injured petitioner to hospital as an act of help and there was absolutely no fault on the part of the first respondent and there was no accident as stated in the petition.

(2.) THIRD respondent filed written statement advancing similar contentions and it is further contended by the third respondent that the car bearing registration No. KL-6 1297 was insured with them for a period from 16th december, 1994 to. 15th December, 1995 as a taxi car, that the driver of the car, at the time of the accident was not holding a valid driving licence with endorsement of badge to drive the vehicle and since possession of badge is mandatory for driving a transport vehicle, the act of the driver in the case at hand was illegal and hence the Insurance Company is not liable, that the claimant was riding his scooter and due to some reason he lost control of the vehicle and he fell down and sustained injuries and there was absolutely no connection between the car and the scooter and there was no accident as stated in the petition and hence the claimant is not entitled to recover any compensation, that the amount of compensation claimed is highly excessive and disproportionate, that according to the police, the case was false and hence the police referred the case and filed a refer report that the claimant is not entitled to recover any compensation and that the petition is liable to be dismissed. First respondent produced Ext. B-3 driving licence to prove that he was having valid driving licence and Ext. B-6 permit to show that there was valid permit to the car.

(3.) CLAIMANT got himself examined as p. W. 1. He reiterated the averments in the application. He has narrated the accident and it is seen that the scooterist had taken his driver as his pillion-rider and dropped him in the bus stop to enable him to catch a bus to go home. After dropping the driver in the bus stop, the scooterist was returning when he found the car coming against along the wrong side and hit his two wheeler. P. W. 1 has categorically stated that he was proceeding along the eastern side of the road towards south whereas the car came at a very high speed along the wrong side and knocked him down. P. W. 2 Shaji is stated to be an eyewitness. A perusal of his testimony would show that he was the driver carried by the claimant in the latter's scooter and was dropped in the bus stop. According to P. W. 2, he was proceeding towards the nearby shop to purchase a candle and match box when he found the car coming against the scooter which was proceeding after dropping him and the car came along the wrong side and hit the scooter. It is further seen stated by him that only one of the head lights of the car was on. He deposed clearly that he had seen the accident in hitting of the car on the scooter. The scooterist fell down. First respondent who was driving the car reversed his vehicle and with the help of P. W. 2 the injured was taken into the car and was removed to cherupushpam Hospital. From the evidence of P. W. 2, it can be seen that the driver of the car was known to P. W. 2 even prior to the accident and hence he could be easily identified. Furthermore, they together took the injured to the hospital. Accordingly to the tribunal, who saw the demeanour of the witness, evidence of P. Ws. 1 and 2 are consistent and they can be believed. Their cross-examination was not at all helpful to the respondent.