Chandra vs Shivalinge Gowda

B.S. Patil, J.—This appeal is filed by the claimant whose claim petition has been dismissed by the Motor Accident Claims Tribunal, Bangalore City. The Claims Tribunal has found that claimant failed to establish the involvement of tractor and trailer bearing registration Nos. KA-5-T3706 and KA-5-T3707 as alleged by claimant.

Facts leading to this appeal, stated in nutshell are, on 12-04-2004 at about 9.30 p.m. when the petitioner was riding the motor cycle on M.G. Road, Kanakapura Town, a tractor and trailer bearing registration Nos. KA-5-T3706 and KA-5-T3707 came from opposite direction in a rash and negligent manner and allegedly dashed against - claimant. He was shifted to Kanakapura Government Hospital and after first aid, he was shifted to KIMS Hospital at Bangalore for further treatment. Complaint was lodged on 16-04-2004 after four days from the date of accident. In the complaint, injured/claimant has mentioned the model number of the vehicle and also chassis number. He did not mention the registration number of tractor. However, he has stated in the complaint that as the registration number of the tractor was not available, he could not mention the said number.

Claimant has examined himself before the Claims Tribunal as P.W.1. Two doctors by name Dr. Somashekar and Dr. P. Niranjan Murthy have been examined as P.W.2 and P.W.3, Exs. P1 to P.23 have been marked in evidence. On the part of respondents, R.W.1 - S.R. Naik, Senior Assistant of the Insurance Company who conducted investigation in the matter at the instance of the Insurance Company has been examined. However, he has not produced the report of investigation.

The Tribunal has held that as the complaint did not disclose the registration number of tractor; and the complaint was filed after four days from the date of incident; as there was nothing to show why he did not mention engine and chassis number while he was admitted to the hospital and further as it was doubtful how he could see the chassis and model number while he had suffered fracture in the accident; coupled with the fact that police had taken nearly 14 days to seize the said vehicle and no scratches were found on the tractor or trailer, case put forward by claimant regarding involvement of tractor and trailer could not be believed. The Tribunal having held that claimant had failed to establish involvement of tractor and trailer has opined that there was no need on his part to deal with any other question including as regards actionable negligence or quantum of compensation let alone the liability of respondents to pay compensation. It has therefore dismissed the claim petition.

Having heard the learned counsel for both parties and on perusal of the evidence on record both oral and documentary, the point that arises for consideration is:

Whether finding recorded by the Tribunal holding that claimant failed to establish involvement of tractor and trailer bearing registration Nos. KA-5-T3706 and KA-5-T3707 in the accident is legally sustainable and is supportable from evidence on record?

Fact that accident occurred on 12-4-2004 at 9.30 p.m. when petitioner was riding the motor cycle at M.G. Road, Kanakapura Town in which he suffered fractural injuries to both bones of right leg has been found established. The question is with regard to involvement of tractor and trailer bearing registration No. KA-5-T3706 and KA-5-T3707. Why the claimant could not mention the registration number of tractor in the complaint lodged has been stated in complaint. He has stated that the registration number contained in the name plate i.e., number plate of vehicle was not found on the vehicle and therefore, he had given the model and chassis number of vehicle. In the examination-in-chief he has stated that driver of tractor and trailer bearing registration number mentioned above came from opposite direction in high speed driven in a reckless, rash and negligent manner and dashed against him. He has also narrated the details with regard to he being shifted to the Government Hospital at Kanakapura at first instance and thereafter to KIMS Hospital at Bangalore. He has also stated in the examination-in-chief that Kanakapura police registered a criminal case against the driver of tractor and trailer in Crime No. 38/2004.

In the cross-examination he has stated that the tractor did not stop as he fell down from the motor cycle. He has also stated that he gave complaint to the police noting the number. He asserts that on the same night he lodged the complaint but further states that complaint was indeed given on 16-04-2004. It is this inconsistency in his evidence in the cross-examination that has persuaded the Tribunal to hold that he was not disclosing true facts.

What is discernable from the materials on record which has been lost sight of by the Tribunal is that, based on the complaint lodged, police have conducted investigation and charge-sheet was filed against the tractor and its driver. It is urged before this Court that the driver of the vehicle against whom the complaint had been filed pleaded guilty. Owner of the vehicle did not refute the allegation regarding the involvement of tractor and trailer in the accident. In such circumstances, reasoning assigned by the Claims Tribunal holding that as the claimant did not give particulars of model and chassis number before the doctor when he was admitted to hospital and as he had failed to furnish the registration number in the complaint or before the doctor and as there was delay of 4 days in lodging complaint his version had to be rejected outright suffers from illegality. The Tribunal ought to have examined the totality of evidence on record to record a finding in this regard.

In the cross-examination, claimant has stated that one of the members of public gave him the engine and model number of tractor when he was at the accident spot and therefore, he had stated the same before the police. Merely because this aspect was not stated in the complaint, it cannot be said that his version had to be totally disbelieved. The approach adopted by the Tribunal in this regard is highly technical in appreciating and analysing the evidence on record. Therefore, in my view, this finding recorded by the Tribunal cannot be sustained in law having regard to the totality of the circumstances and keeping in mind the contents of Ex.P.1 wherein the claimant had asserted that tractor and trailer did not bear the number plate at the time when the accident occurred and that a member of general public gave him the model and chassis number of tractor.

The claimant was seriously injured and was initially admitted to Government Hospital and later on shifted to KIMS Hospital at Bangalore. Discrepancy in his evidence in not mentioning the registration number of tractor and in not filing the complaint immediately cannot be made basis to discredit him and disbelieve his version. Hence, the findings recorded by the Tribunal in this regard deserve to be interfered with. The Tribunal has not examined any other aspect including as regards actionable negligence, quantum of compensation and the liability of owner/insurer and the insured to pay compensation.

Therefore, I am constrained to set aside the judgment and award passed by the Tribunal and remit the matter back to the Claims Tribunal to record a fresh finding with regard to the actionable negligence on the part of driver of tractor and trailer and the quantum of compensation payable and as also the liability of owner and driver to pay the same. The Tribunal is directed to provide opportunity to all the parties to lead fresh evidence insofar as aforementioned aspects are concerned and record a finding on the same and dispose of the case as expeditiously as possible, at any rate within a period of four months from the date of receipt of a copy of this order and the records.

There was delay of 211 days in filing this appeal which has been condoned. The matter was dismissed for default in the year 2009. Application to restore the appeal was filed after delay of 2313 days. This was also condoned. Therefore, as the delay of 2524 days was due to the negligence on the part of claimant, respondents cannot be held liable to pay interest in case claimant succeeds in establishing actionable negligence on the part of driver of tractor. Hence it is made clear that the Tribunal shall not award interest for the aforementioned delayed period while passing/any order granting compensation.