P.F. Thomas vs K.R. Augustine and Others

B.M. Thulasidas, J.—The 1st respondent in O.P. (M.V.) 335 of 1983 on the file of the Motor Accidents Claims Tribunal, Ernakulam, is the appellant. In the application filed u/s 110A of the Motor Vehicles Act compensation of Rs. 2,92,950/- was claimed alleging that in an accident which took place on 7-3-1981 at about 10 a.m. near Ayyappankavu, Ernakulam, involving motor car No. K.L.O. 2080, owned by the appellant, the 1st respondent-claimant sustained injuries, particularly to his head as a result of which he became mentally sick. The vehicle at the time of the incident was driven by the 2nd respondent. The 1st respondent alleged that the accident was caused by the negligence of the driver of the car. The appellant was also in the car at the time of the incident and he was vicariously liable.

There is a delay of over one year nine months to file the petition which was condoned by the Tribunal by order in I. A. No. 719(a)/83. The 3rd respondent, father was permitted to prosecute the petition on behalf of his son, 1st respondent

The appellant denied that any accident took place as allege. In particular he denied that the vehicle was driven rashly and negligently. He set out the circumstances under which the incident look place and stated that the amount claimed is excessive.

The 2nd respondent, driver also denied that the vehicle was driven rashly and negligently and maintained that the 1st respondent himself was responsible for the accident. Exception was taken to the claim on several grounds as well, which are, however, not material for the purpose of this appeal.

The 3rd respondent admitted that it was the insurer of the vehicle,

The Tribunal raised proper issues for decision and found that the incident as set out by the claimant-1st respondent did happen on account of rash and negligent driving by the 2nd respondent driver. The contentions of the 2nd and 3rd respondent were disbelieved. The Tribunal found that the 1st respondent sustained injury to his head which made him mentally ill. The various items of claims were considered by the Tribunal and by the impugned award, the Tribunal awarded an amount of Rs. 84,150/- as compensation which was directed to be paid by the 3rd respondent. The award is challenged in this appeal.

Though several contentions have been taken in the memorandum of appeal, counsel stressed only one point, namely, that there was no acceptable proof to show that the 1st respondent sustained any head injury which made him a mental patient. It was urged that the Tribunal was wrong to accept the evidence of P.Ws. 1 and 2 and of the doctors of whom P.Ws. 3 and 4 were alleged to have treated him for his ailment. There was no causal connection between the incident and the alleged head injury stated to have been sustained by the claimant, and the Tribunal was unjustified to hold to the contrary.

The question as to whether the motor car K.L.O. 2080 belonging to the appellant got involved in the accident is unnecessary to be considered because the only point pressed is the one mentioned in the preceding paragraph. We therefore proceed on the basis that the finding the Tribunal, entered on issue No. 1 namely:

In the light of the above discussion taking into the evidence on record the circumstances and probabilities of the case I find that the accident as pleaded by the petitioner has taken place and the same took place on account of rash and negligent driving of the car by the second respondent, who was under the employment of the 1st respondent.

The more important question for consideration is whether the 1st respondent sustained head injury in the accident as alleged that made him a chronic mental patient. The earliest documents pronounced on behalf of the 1st respondent claimant is Ext. AS which showed him to have sustained three injuries which were as follows:

Abrasion left side face 111/2 x 111/2, cm.

Abrasion back of left for earn 1x1 cm.

Abrasion just above left ankle joint 1 x 1 cm. complaints of pain left shoulder and right thigh.

It is clear that the injuries were minor. But, despite this, he was in the hospital from 7.3.1981 to 12-3-1981. Probably, he was kept under observation. But, there is no reference in Ext A-Sofany head injury having been sustained by the claimant-1st respondent We find that on the basis of Ext. A4 dated 3-4-1981, a crime had been registered. In Ext. A4 given by P.M. 1, 1 for the first time it was stated:

The delay in giving the complaint was not adequately explained. The allegation that the 1st respondent sustained extensive injuries to his body, besides an injury to his head as mentioned in Ext. A4, solely rested upon the evidence of P.W. 1, who was not a witness to the occurrence.

Indeed, the claimant was obliged to establish that he sustained head injury which was the proximate cause of his all aged mental ailment. The evidence of P.W. 1, as already noted does not prove this aspect of the matter. We are now left with the evidence of PWs. 3 and 4 and R.W. 1, P.Ws. 3 and 4 had examined the claimant-1st respondent. But, they did not examine him immediately after the occurrence. Therefore, it is difficult to accept their evidence as proving the case of the claimant that his mental ailment was the result of the alleged head injury sustained by him in the accident. In this context, we would like to refer to Ext. AB issued by the Superintendent of General Hospital, Ernakulam dated 13-4-1983 from where it can be seen that the boy was admitted to the hospital on 7-3-1981 and discharged on 12-3-1981 and that he had some abrasion on the chest. He was again admitted to the hospital on 3-4-1981 and discharged on 25-4-1981. He was then suffering from Post Transmatic Nerosis. The doctor who treated the boy was not examined. The records relating to his treatment were not produced. In these circumstances, it could be held that Ext. A8 was given on the basis of the information given to the doctor either by the injured himself or someone interested in him. This could be the only conclusion possible in the light of Ext. AS which was the earliest document about the injures sustained by the claimant. P.W. 3 who was the doctor attached to the Kusumagiri Mental Health Centre, Kakkand, would say, that he had treated the claimant for chronic psychosis from 25-12-1982 to 31-1-1983. Ext. A 9 is the certificate issued by him in which he has stated. ''There is a possibility of this disease being consequential to a head injury, he sustained 2 years back in a car accident". Obviously, this observation is based on the information review by a person interested in the claimant because the doctor admittedly had no direct knowledge of the involvement of the claimant in a car accident, resulting in head injury. In fact, the certificate does not show that the claimant carried any mark of a head injury to alert the doctor that the injured must have had the disease as a result of the head injury. One would be justified to say with regard to the word head injury'' that it was an injury that was visible to the eye and not any internal injury which would have escaped notice on examination. The evidence of this witness does not show that the claimant sustained any head injury in the accident, involving car No. KLO 2080 Pn 7-3-1981 at about 10 a.m. near Ayyappankavu. P.W. 4, Psychiatrist attached to the Woman and Children's Hospital, Mattancherry, had issued Ext. A14 dated 1-7-1987. It mentions that the claimant was under treatment for schizophrenia which rendered him unable to earn his livelihood. No doubt, this witness stated that the claimant was admitted to the General Hospital Emakulam. while he was working there. But, no records were produced to show that he had treated him. We have only his version in this regard. Even assuming that this doctor had treated the claimant a stated by him, it did not follow that the treatment was in connection with the mental disease that developed in the wake of the car accident in which he was involved on 7-3-1981, near Ayyappankavu.

The evidence and records did not show that the 1st respondent had sustained head injury in the accident. The Tribunal's conclusion to the contrary cannot be accepted. It went wrong to hold that the mental ailment of the 1st respondent should be attributed to the head injury that he sustained in the accident. In our view, the ailment that the 1st respondent was found suffering from was there even before the accident and not as a result of the head injury that he sustained in the accident as alleged in the petition.

In this vie w of the matter, it is unnecessary to go into the other aspects dealt with in the award, he would, however, wish to note here that a contention was advanced by the counsel for the 1st respondent regarding the maintainability of the appeal. This contention cannot in our view, be accepted in view of the Division Bench ruling reported in Visalakshi v. Hamsa (1988) KLT 802.

No other points arise for determination in this appeal.

In the result, we hold that the award of Motor Accidents Claims Tribunal, under challenge, is not sustainable. It is hence set aside. The appeal is allowed but, in the circumstances, without any order.