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Judgment
Aravind Kumar, J.—Insurer is in appeal questioning the Judgment and award passed by MACT, Mysore in MVC 1137/2010 dated 31.08.2010 whereunder claim petition filed by first respondent herein (claimant) seeking compensation of Rs. 11,55,000/- on account of injuries sustained in a road traffic accident that took place on 10.03.2007 came to be allowed in part and a total compensation of Rs. 91,000/- with interest @ 6% p.a. from the date of petition till date of deposit by fastening the liability on appellant-insurer. I have heard the arguments of Smt. H.R. Renuka, learned counsel appearing for insurer and Sri. Harish Chandra, learned counsel appearing on behalf of Sri. K.N. Phanindra, for respondent No. 3. Respondents 1 and 2 are served and unrepresented.
It is the contention of Smt. H.R. Renuka, learned counsel for insurer that very involvement of insured vehicle itself is in doubt or dispute, inasmuch as Exhibit P-4 namely wound certificate relied upon by the claimant before tribunal would itself indicate that claimant had sustained injuries in a road traffic accident while travelling in a luggage Auto bearing registration No. KA-11-7251 and claim is against the insured and insurer in respect of vehicle bearing registration No. KA-09-A-4145 and tribunal committed a serious error in ignoring the entry found in Exhibit P-4 to the said effect and as such it has erroneously fastened the liability jointly and severally on the insured as well insurer and has directed the insurance company namely insurer to indemnify the claim. Hence, she seeks for setting aside the Judgment and award passed by tribunal and prays for dismissal of the claim petition by allowing the appeal. In support of her submission she has relied upon the Judgment of Hon''ble Apex Court in the case of North West Karnataka Rd. Transport Corp. Vs. Gourabai and Others, .
Per contra, Sri. Harish Chandra, learned counsel appearing on behalf of Sri. K.N. Phanindra, for Respondent No. 3 would support the Judgment and award passed by tribunal and seeks for dismissal of the appeal. Respondents 1 and 2 are served and unrepresented.
Having heard the learned advocates appearing for the parties and on perusal of Judgment and award in question as well as records secured from the Tribunal, I am of the considered view that following points would arise for my consideration:
Whether the Judgment and award passed by tribunal fastening the liability on the insurer by concluding or holding that vehicle bearing registration No. KA-09-A-4145 was involved in the road traffic accident that occurred on 10.03.2007 is just and proper or it requires to be set aside.
What order?
RE: POINT NO. 1:
The very accident involving the vehicle said to have been insured by appellant herein bearing registration No. KA-09-A-4145 is in dispute. However, insurer does not dispute the fact that the said vehicle was insured by third respondent in this appeal namely owner of vehicle and policy issued to said vehicle being in force or vogue as on the date of accident.
First respondent herein filed a claim petition u/s 166 of the Motor Vehicles Act seeking compensation of Rs. 11,55,000/- contending inter alia that in a road traffic accident that occurred on 10.03.2007 at about 4.15 P.M. while he was travelling in a luggage Auto bearing registration No. KA-09-A-4145 it got turtled on account of which he sustained injuries and was admitted to K.R. Hospital, Mysore and was treated thereat and hence, he sought for payment of compensation. Owner and driver of the offending vehicle appeared before the tribunal and filed their written statement by contending that said vehicle was having a valid insurance. It was also contended that averments made in the claim petition are false. Appellant herein who was third respondent-insurer before tribunal filed a detailed written statement denying the averments made in the claim petition. The insured vehicle being involved in the accident in question was not admitted or in other words involvement of the insured vehicle came to be denied. Claimant in support of contentions raised in the claim petition got himself examined and got marked in all 66 documents Exhibits P-1 to P-66 and relied upon those documents. Owner and driver of the vehicle bearing registration No. KA-09-A-4145 did not enter the witness box. However, PW-1 was cross examined on behalf of owner and driver on 25.09.2009. Insurer also cross examined PW-1. On the basis of the pleadings of the parties and on evaluation of entire evidence tendered by both the parties tribunal allowed the claim petition in part and directed the insurer to indemnify the claim.
It is not in dispute that the accident took place on 10.03.2007. However, the claimant did not lodge complaint till 31.03.2007. On 31.03.2007 complaint came to be lodged before the jurisdictional police, on the basis of which FIR came to be registered as per Exhibit P-2. Thereafter investigation has been taken up by the jurisdictional police. Perusal of the averments made in the claim petition would indicate that immediately after the accident, claimant had been shifted to K.R. Hospital, Mysore. At paragraph 13 of the claim petition it is contended that he was an inpatient from 10.03.2007 to 04.04.2007. However, not a piece of document has been produced to substantiate said claim. The only document which was available on record before the Tribunal is the wound certificate Exhibit P-4. A perusal of the said wound certificate Exhibit P-4 would indicate that claimant had sustained injuries in a road traffic accident "while travelling in luggage Auto bearing No. KA-11-7251". Other documents are medical records produced by claimant which are medical bills Exhibits P-7 to P-65 which do not indicate as to which vehicle claimant was travelling. There are no other records available to establish the injuries sustained by claimant. Though at this juncture Exhibits P-1 to P-65 may not be of any relevance to adjudicate point No. 1 formulated hereinabove, I am of the considered view that other medical records like discharge summary, disability certificate etc., would have thrown light on the merits of the claim or in other words it would have been helpful for the claimant himself to establish that he had sustained injuries in a road traffic accident in question while proceeding in the vehicle insured by appellant.
When the insurer has taken a specific plea in the written statement denying the involvement of vehicle the burden was equally cast on the claimant also to prove that accident in question had occurred while he was travelling in the vehicle insured by the appellant. It is no doubt true that investigating authorities have taken up the investigation based on the complaint lodged on 31.03.2007 Exhibit P-2 and conducted the investigation and charge sheeted the driver of the Autorickshaw bearing No. KA-09-A-4145. The statement of one of the charge sheet witness namely Sri. Mahadev, owner of the insured vehicle which came to be recorded by investigating authorities on 08.04.2007 would indicate that said vehicle namely No. KA-09-A-4145 was seized on 08.04.2007 and driver was also arrested on the same day and enlarged on police bail. Even according to the claimant accident occurred on 10.03.2007. Complaint has been lodged after a period of 21 days i.e., 31.03.2007. There is absolutely no explanation forthcoming either in the claim petition or in evidence as to the reason for delay in lodging the complaint. This is where the first stage at which the claim made by the claimant arouses suspicion. It is no doubt true delay does not defeat the legitimate claim. The burden is cast on the claimant to allay such suspicion if any. When the matter is further probed and examined from the available records to ascertain whether such suspicion has been cleared the answer has to be necessarily in the negative for the reason that Exhibit P-4 wound certificate produced by claimant and relied upon by him would itself indicate that he has stated before the doctor who treated him at the time of admission on 10.03.2007 that the vehicle involved in road traffic accident was KA-11-7251 and not the vehicle insured by the appellant insurer. Owner and driver of offending vehicle in their written statement have denied each and every averment made in the claim petition except to the extent that the vehicle owned by Sri. Mahadev was insured with the appellant herein and said policy was in vogue. In that view of the matter burden was cast very heavily on the claimant also to prove the involvement of the vehicle in question namely No. KA-09-A-4145 by proving the entry found in Exhibit P-4 was incorrect.
One another factor which would tilt in favour of appellant-insurer to accept its contention is vehicle in dispute was not involved in the accident is IMV report Exhibit P-6. A perusal of the said document would indicate that there was absolutely no damages caused to the vehicle bearing registration No. KA-09-A-4145. Claimant has stated that goods auto he was travelling got turtled. It would necessarily mean it would have suffered atleast some amount of damages and in the absence of any such damages being found on the vehicle insured by the appellant it give rise for second stage of suspicion. Same has also remained unresolved by claimant.
Even according to the claimant two other persons have accompanied him along with driver of the goods Auto. If it were to be so, nothing prevented the claimant to examine atleast his co-passengers who were proceeding with him to establish that they were travelling together in the vehicle insured by the appellant. Tribunal while considering the claim of insurer has not taken note of the entry found in the wound certificate Exhibit P-4 which would clearly indicate the number of the vehicle which was involved in the accident. However it has proceeded to conclude that in view of jurisdictional police having initiated proceedings against driver of the vehicle No. KA-09-A-4145 it is presumed that the said vehicle was involved in the accident. At this juncture it would be appropriate to note the judgment of Apex Court in the case of North West Karnataka Road Transport Corporation Vs. Gourabai and others referred to hereinabove which reads as under:
Challenge in this appeal is to the order passed by the learned Single Judge of the Karnataka High Court dismissing the appeal filed by the appellant. Challenge in the said appeal was to an award made by the Motor Accident Claims Tribunal No. VII, Bijapur (in short MACT). An award of Rs. 2,59,400/- was made. The man contention of the appellant before the MACT as well as before the High Court was that the deceased did not sustain any injury in any accident involving the bus of the corporation. Reference was made to the evidence of the doctor, who had admitted the deceased to the hospital, that the deceased had suffered head injury due to fall from the height of 8 to 10 feet of his own house. Though this was specifically stated in the written statement, the MACT and the High court brushed aside the same stating that there was indirect admission about the deceased having sustained injury in vehicular accident. The effect of the evidence of the doctor and exhibit R-1 does not appear to have been looked into by the MACT and the High Court. MACT did not place reliance on the document R-1 on the ground that the brother of the injured stated that he did not know what was written in the document and his signature was taken on one page. This conclusion overlooks from the fact that a doctor will not take a signature on a piece of paper mentioning something which is not correct. Exhibit R-1 establishes beyond the shadow of doubt that the injuries sustained were not on account of any vehicular accident. That being so, the MACT and the High Court were not justified in making any award. The order of the MACT and High Court stands set aside.
The appeal is accordingly, allowed.
Omission to take note of relevant entry found in a document exhibit relied upon by either of parties would amount to erroneous appreciation of evidence or non appreciation of material evidence available on record. In the instant case in Exhibit P-4 there is a specific entry that the vehicle involved in the accident was KA-11-7251. Neither in the pleadings nor in the evidence there is absolutely no explanation offered by the claimant as to how the said vehicle number has been noted in the wound certificate, which is a document relied upon by the claimant himself. In that view of the matter, it would give rise for third stage of suspicion. Same has also remained unresolved or allayed by the claimant.
Hence, I am of the considered view that Point No. 1 has to be answered in favour of appellant-insurer and against claimant-respondent No. 1 herein.
RE: POINT NO. 2:
For reasons aforestated following order is passed:
ORDER
Appeal is hereby allowed.
Judgment and award passed by MACT, Mysore dated 31.08.2010 in MVC 1137/2010 is hereby set aside and claim petition filed u/s 166 of IMV Act is hereby dismissed. Dismissal of the claim petition would not come in the way of claimant initiating appropriate proceedings against the insurer of the vehicle involved in the accident if so, advised and all contentions in this regard are left open.
In view of claimant having not appeared though served, costs are made easy.
Amount in deposit is ordered to be refunded to appellant-insurer by the registry on proper identification of the official.