D.S. Vanajaksha vs Basava Raju T. and Others

Rathnakala, J.

This appeal is preferred challenging the dismissal of the claim petition filed by the appellant herein claiming compensation for the injuries suffered by him in the vehicular accident dated 30.05.2008, under Section 166 of the M.V. Act by the Presiding Officer, FTC - V and Motor Accident Claims Tribunal, Mysore (hereinafter referred to as ''the Tribunal'' for brevity) vide judgment and award dated 19.02.2010, on her file in MVC No. 307/2008.

The case in brevity:

"That on 30.05.2008, at 7.45 p.m., on Devarahalli -Nyamanahalli road, near the bridge, while appellant/claimant was proceeding on his Hero Honda bike bearing registration No. KA 05 ET 3975 towards Pandavapura, the offending vehicle Bajaj Discover motorcycle bearing registration No. KA 09 EL 5113 came from opposite direction in a rash and negligent manner and dashed against the Hero Honda, owing to which he fell down along with his vehicle and suffered severe injuries on his head, brain and other parts of the body. Immediately he was shifted to General Hospital, Pandavapura and after first aid treatment, he was shifted to Apollo BGS Hospital, Mysuru, wherein he was treated as inpatient for 53 days from 30.05.2008 to 22.07.2008. Now, he has lost his memory, unable to speak and disabled. His family members have spent huge amount towards medical and incidental expenses. The case was presented and prosecuted by the father of the claimant, since the claimant had lost his mental ability."

The case was contested by both respondents i.e., rider and insurer of offending vehicle. After holding a full fledged enquiry and after giving audience to both parties, the Tribunal found that it was a case of self fall: there was a delay of 40 days in lodging the complaint to the police about the accident. The history of injuries as per Ex. P.16, recorded by B.G.S. Hospital where he was immediately given first aid treatment, thereby implicating Bajaj Motorcycle bearing registration No. KA 09/EL 5113 creates doubt. Subsequent to lodging complaint to the police on 09.07.2008, the complainant was treated at NIMHANS between 09.01.2009 and 24.01.2009. The history given at the said hospital was, ''skid and fall from a two wheeler''. The MVA report did not reveal any damage to the offending vehicle. On above finding of facts, the petition came to be dismissed by disbelieving the case of the appellant.

Sri C.R. Gopalaswamy, learned Counsel for the appellant submits that the person who shifted the appellant to the hospital has given the history that the injured was hit by Bajaj Discover Motor Cycle bearing registration No. KA 09 EL 5113 while traveling in the said Hero Honda motorcycle. The same history is reflected in the wound certificate/Ex. P.2. The father of the claimant while lodging the complaint to the police had categorically stated the reasons for lodging the complaint belatedly. Without considering these aspects of the matter, the learned Tribunal has drawn a perverse inference that the history was given by the Investigating Officer while collecting the medical certificate. By the time the vehicle was inspected by the Motor Vehicle Inspector, it had already been repaired. The driver of the said vehicle was prosecuted and he pleaded guilty before the criminal Court. The hospital on admission of the injured had sent intimation to the jurisdictional police on the same day. Hence, there was no fault on the part of the father of the claimant in lodging the complaint belatedly. Lodging a police complaint about the accident is not a prerequisite to claim compensation under M.V. Act. The injured was hale and healthy at the time of the accident. Due to the head injury sustained during the accident, he has lost his memory and totally disabled. Under the circumstance, the impugned order may be set side by awarding reasonable compensation.

Smt. H.R. Renuka, learned Counsel for the third respondent/Insurance Company submits that the Tribunal has taken note of the documentary evidence that the history given to NIMHANS was due to the fall from the two wheeler vehicle on which the claimant was traveling. Subsequently, though the rider of the offending vehicle was charged for the offences under Sections 279 and 338 of IPC, he preferred to plead guilty possibly to get himself relieved of the predicament of attending the Court Hearings etc. Said fact cannot be a ground to claim compensation unless claimant establishes the involvement of the offending vehicle in the alleged accident. The Tribunal has rejected the claim on an overall appreciation of the evidenciary material both oral and documentary and the said order is well reasoned and does not call for interference.

In the light of the facts and circumstances of the case, the point that arise for our consideration is:

"Whether the appellant is entitled for compensation under Section 166 of the M.V. Act?"

The claimant has filed an application I.A. No. 1/2014 seeking permission to produce additional documents i.e., a certificate issued by the Chief Medical Officer, Sub-Division Hospital, Pandavapura, regarding sending intimation to the police in respect of the injuries sustained by the appellant in RTA occurred on 30.05.2008 and three documents pertaining to the criminal case where the driver of the offending vehicle was charge sheeted on the basis of the complaint lodged by the father of the claimant and the accused pleaded guilty of the charges and was imposed fine.

During the enquiry before the Tribunal, the father of the appellant while examining himself as PW.1 admitted during cross-examination that he is not an eyewitness to the incident, though he came to know the registration number of the offending vehicle, he lodged the complaint to the police 39 days thereafter. From Ex. P.16/case sheet and Ex. P.4/discharge summary from Apollo BGS Hospital, Mysuru and Ex. P.4(4)/discharge summary of Nimhans, the Tribunal has noticed that the history was mentioned as ''RTA on 30.05.2008 at 7.00 p.m. near Nyamanahalli, Pandavapura, Mandya H/o. skid and fall from two wheeler''. Rightly, the Tribunal doubted the involvement of Discover motorcycle bearing registration No. KA 09 EL 5113 in the accident.

On his own showing, the father of the claimant is a teacher and it was he who shifted the injured/claimant to the hospital from the site of the accident. Though delay by itself is not a criteria to suspect a complaint. In this case, the delay of 40 days in lodging the complaint to the jurisdictional police and the documentary evidence in respect of the history of the accident has come in the way of the Tribunal in accepting the case of the claimant. Added to that, as per the motor vehicle accident report/Ex. P.13, the offending vehicle had not sustained any damage. The Tribunal remarks that the Investigating Officer has not made any attempt to collect information whether the vehicle was repaired or not recently after the alleged incident. Though there is mention in the medical certificate/Ex. P.2 issued by General Hospital Pandavapura about the history to the effect that the claimant was hit by Bajaj Discover motorcycle, the Tribunal on facts infers that the history is not given by the father of the claimant/appellant, but by the Investigating Officer while collecting the medical certificate /Ex. P.2 during the course of investigation. The hospital did not identify claimant''s case as a medico-legal case after the admission of the injured to the hospital. Though there is enough of evidence before the Tribunal that the claimant is rendered disable because of the head injury suffered by him in a RTA that occurred on 30.05.2008, since, he failed to establish the nexus of the said accident to the Bajaj Discover motorcycle bearing registration No. KA 09 EL 5113, no fault can be found in the finding returned by the Tribunal that this case is an attempt by the father of the appellant to make wrongful gain.

The appellant now has filed I.A. No. 1/2014 seeking permission to produce additional documents like a certificate issued by the CEO of the Sub-Division Hospital, Pandavapura regarding entries and information sent to the police in respect of the injuries sustained in the RTA occurred on 30.05.2008 and the certified copy of the order sheet of the criminal case whereby, the driver of the offending vehicle was prosecuted for the offences under Sections 279 and 338 of IPC and was convicted on his pleading guilty for the charges. Even if these documents are admitted in evidence, in our considered opinion, they will not anymore improve the case of the claimant. If any such intimation was sent to the Hospital immediately after receipt of the intimation, why the jurisdictional police did not approach the concerned hospital to record the statement of the injured or any of the concerned to register the case, still remains a riddle.

On a perusal of the copy of order sheet in criminal case, it goes to show that the driver of the offending vehicle/accused in the criminal case was convicted. Even that were to be so, filing of the complaint, charge sheeting the accused and his conviction based on his own pleading guilty before the Court, are all mockery of our criminal justice system, probabilising that the accused, complainant and the Investigating officer are all in connivance with each other to make out a case for compensation before the Motor Vehicle Accident Tribunal. Hence, there are no compelling grounds to allow I.A. No. 1/2014.

On a careful consideration of the evidence presented before the Tribunal, we hold that the finding reached by the Tribunal is neither arbitrary nor perverse. There is no merit in the grounds urged in the appeal.

Accordingly, I.A. No. 1/2014 and so also the appeal are dismissed. No costs.