Lekshmy, W/O.Sivasubramanian @ Mohan vs Krishna Pandi, S/O.Thirumal

C.S.Dias, J

The appellants were the petitioners in O.P (MV) No.952/2003 on the file of the Motor Accidents Claims Tribunal, Neyyattinkara. The respondents in

the appeal were the respondents before the Tribunal.

The brief facts relevant for the determination of the appeal, are: the appellants had filed the claim petition under Section 166 of the Motor Vehicles

Act,1988 (for brevity referred to as “Actâ€) claiming compensation on account of the death of Sivasubramanian@Mohan (deceased) â€" the

husband of the 1st appellant, the father of the 2nd appellant and the son of the appellants 3 and 4 . It was their case that on 3.4.2003 while the

deceased was walking along the road in front of S.P.Office, Nagercoil, he was knocked down by an autoricishaw bearing Reg.No.TN-74-D-9865

driven by the 2nd respondent in a rash and negligent manner. The deceased sustained serious injuries and was taken to Nagarajan Hospital, Nagercoil

and then shifted to District Head Quarters Hospital, Nagercoil. He succumbed to the injuries on 7.4.2003. The deceased was a flower vendor and

earning a monthly income of Rs.5,000/-. The deceased was the sole bread-winner of the family and the appellants were dependents on him. The

autorickshaw was owned by the 1st respondent and insured with the 3rd respondent. Hence, the appellants claimed an amount of Rs.9,34,000/- from

the respondents, which was limited to Rs.7,50,000/-.

The respondents 1 and 2 did not contest the proceedings and were set ex parte.

The 3rd respondent - the Insurance Company â€" filed a written statement, inter alia, contending that the appellants were not residing in the address

shown in the cause title. The autorickshaw bearing Reg. No.TN-74-D -9865 was not involved in the accident. The entire allegations in the claim

petition were concocted in an unscrupulous attempt to grab money from the insurance company. On enquiry by the 3rd respondent, it was learnt that

another autorickshaw, which did not have a valid insurance policy, was involved in the accident. Therefore, the appellants planted the present vehicle

to unlawfully enrich themselves. Hence the claim petition is to be dismissed.

The 1st appellant was examined as PW1 and Exts. A1 to A5 were marked through her. The 3rd respondent produced and marked Exts.B1 and B2

in evidence.

The Tribunal, after analysing the pleadings and materials on record, by the impugned award dismissed the claim petition holding that the appellants

have not proved that the accident was caused by the autorickshaw bearing Reg. No. TN-74D 9865 as alleged in the claim petition. It was also found

that the appellants have deliberately not produced the final report prepared by the Police.

Aggrieved by the impugned award, the petitioners/appellants are in appeal.

Heard the learned counsel appearing for the appellants/petitioners and the learned counsel appearing for the 3rd respondent â€" insurance

company.

The sole question that arises for consideration in the appeal is whether the impugned award passed by the Tribunal is sustainable in law or not?

The specific case of the appellants in the claim petition was that on 3.4.2003 while the deceased was walking on the road, an autorickshaw

bearing Reg. No.TN-74D-9865 driven by the 2nd respondent hit the deceased and he fell unconscious. He was taken to the Nagarajan Hospital,

Nagercoil and, thereafter, to the District Headquarters Hospital, Nagercoil, where he lost his life on 7.4.2003. It was averred that the autorickshaw

belonged to the 1st respondent and was insured with the 3rd respondent.

11. The appellants produced Ext.A1 F.I.R which was registered on 7.4.2003 and submitted before the Court of the Judicial Magistrate-III,

Nagercoil. The information was given to the Police by one Muthukaruppan, who claimed to be the younger brother of the

deceased. The informant told the Police that while he and the deceased were walking along the road, an autorickshaw came from the rear side and

knocked down the deceased, who fell unconscious and was taken to the Nagarajan Hospital, Nagercoil. However, , the autorickshaw driver drove

away the vehicle. Therefore, the registration number of the vehicle could not be noted. According to him, the deceased succumbed to the injuries on

7.4.2003 at 7.15 p.m. He also stated that after the accident on 3.4.2003, the father and relatives of the deceased went to the Nagarajan Hospital on

the following day and as advised the deceased was shifted to the Medical College Hospital, Kottar. Then, the deceased passed away on 7.4.2003 and

the F.I.R was lodged.

The 1st appellant â€" the wife of the deceased - who was examined as PW1, gave a totally contradictory version in her oral testimony. She

deposed that it was while she and the deceased were walking along the road an autorickshaw knocked down the deceased and he sustained injuries

and he lost his life on 7.4.2003. She did not mention anything about Muthukaruppan, the first informant. Similarly, in Ext.A3 post-morterm certificate

the cause of death was mentioned as head injury and there is no mention about a road traffic incident as stated in Ext.A1 F.I.R.

The Tribunal on a threadbare analysis of the pleadings and materials on record, particularly after evaluating the oral testimony of

PW1 - who claimed to be an eye-witness to the incident, found that there were contradictions and inconsistencies in the testimony of PW1 when read

with the materials on record.

The most glaring aspect in the whole case is that despite the Tribunal affording the appellants an opportunity to produce the final report filed by the

Police, the same was withheld from the Tribunal.

Even at the time of hearing of the appeal, this Court had orally directed the appellants to produce the final report, so as to ascertain the actual

cause of the accident. It was submitted by the learned counsel for the appellants that as the appellants are illiterate persons, it would be difficult for

them to produce the said document.

It is to be noted that PW1 gave evidence on 31.1.2009 i.e, nearly after six years after the accident. She had all the time in the world to have

obtained the final report and produced the same before the Tribunal, so that the real cause of death could have been ascertained. For reasons best

known to the appellants, the said cardinal document was withheld from the Tribunal, that is why the Tribunal has rightly held ' it was grouping in the

dark' to ascertain the actual cause of the accident.

On a total re-appreciation of the pleadings and materials on record, particularly the fact that the final report/charge sheet, the best piece of

evidence, has been withheld and there are contradictions and inconsistencies in the materials on record, I do not find any error or illegality in the

finding of the Tribunal, that the accident was not caused on account of the involvement of autorickshaw bearing Reg. No.TN-74D-9865.

In the result, I confirm the findings of the Tribunal and dismiss the appeal. The parties shall bear their respective costs.