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Judgment
H.S. Kempanna, J.—This appeal by the claimant is directed against the judgment and award dated 4.4.2009 passed in MVC No. 2061/09 by the MACT and Court of Small Causes (SCCH-7) Bangalore City dismissing the claim petition filed by the Appellant-claimant.
The brief facts of the case are:
The Appellant-claimant filed the claim petition before the tribunal claiming compensation in respect of the injuries which he had sustained in the motor accident that, took place on 2.10.2006 at about 7.30 a.m. near Baptist hospital situated on Bangalore-Bellary road involving the lorry bearing Regn. No. KA-05 C 9122, owned by the first Respondent driven by the second Respondent and insured with the third Respondent at the relevant point of time. In the impugned accident, the claimant sustained grievous injuries comprising of fracture for which he took treatment in the hospital by spending huge amount. Despite the same, he is not completely cured of the injuries. As such, he is unable to discharge his functions as an official of the High Court which has come in the way of his promotional prospects. Accordingly, he sought for grant of compensation from the Respondents.
After service of notice, the second Respondent-driver remained absent and hence he was placed exparte. However, Respondents 1 and 3 who are the owner and insurer of the offending lorry appeared and contested claim of the Petitioner.
The first Respondent-owner contended that the accident has not taken place on account of the negligent driving of the lorry by its driver-Respondent No. 2. It was specifically contended that the lorry owned by him is not at all involved in the accident, on the other hand, it has been falsely planted in the east as having been involved in the accident. He also denied the age, avocation, the injuries sustained, treatment taken and the amount spent for the same by the claimant. It was further contended that the lorry in question had been insured by him with the third Respondent at the relevant point of time and if for any reason he is held liable, the liability to pay any compensation be saddled on the third Respondent-insurer.
The third Respondent-insurer also contended that the accident in question has not taken place on account of the fault of the driver of the lorry. They also denied the vehicle having not been involved in the accident, and their liability is subject to the terms and conditions of the policy and subject to the proof that the second Respondent did not possess valid and effective driving licence to drive the lorry in question at the time of accident. They also denied all other averments made by the claimant in his petition. Accordingly, they sought for dismissal of the petition as against them.
On the basis of the above pleadings, the Tribunal framed the following issues:
Whether the Petitioner proves that he sustained injuries in a load traffic accident that occurred on 2.10.2006 at about 7.30 p.m., at Canara Bank near Baptist Hospital, Bangalore-Bellary main road, Bangalore, within the jurisdiction of RT Nagar Traffic Police Station, was due to rash and negligent driving of Corporation Lorry bearing registration No. KA-05-C-9122 by its driver?
Whether the Petitioner is entitled for compensation? If so, what amount and from whom?
What order or award?
The claimant in support of his case got himself examined as PW1, an eye-witness to the accident as PW2 and the doctor who has treated him as PW3. He produced 12 documents which came to be marked as exhibits P1 to P12. On behalf of the Respondent Insurance Co., they examined their Administrative Officer as RW1 and Medical Record Technician of Baptist hospital as RW2. They produced 12 documents which came to be marked as R1 to R12. However, Respondent No. 1-owner did not choose to lead any evidence nor produced any documents in support of his case.
8, The Tribunal on consideration of the oral and documentary evidence on record came to the conclusion that the claimant has failed to establish that the accident in question took place involving the lorry bearing Regn. No. KA-05 C 9122 and accordingly without going into the second issue raised by him dismissed the claim petition of the claimant.
The Appellant/claimant being aggrieved of the impugned judgment and order of the Tribunal dismissing his claim petition is in appeal before this Court.
The learned Counsel for the Appellant claimant submitted that the tribunal has erred in dismissing the claim petition of the claimant despite the claimant having placed clinching evidence on record before the Court which discloses that the driver of the offending lorry had been convicted by the Criminal Court for having caused the impugned accident. That establishes that that the owner of the offending lorry is acquiesced of his lorry having been involved in the accident as claimed by the claimant and likewise the third Respondent insurer automatically becomes liable for payment of compensation as they have not disputed the lorry having been insured with them at the relevant point of time. Further, the learned Counsel drawing my attention to the records and the evidence on record submitted that the finding of the Tribunal that the claimant has failed to establish that the offending vehicle viz. the lorry owned by the first Respondent and insured with the third Respondent is not involved in the accident is not correct and accordingly, the same cannot be sustained. Hence, a case for interference is made out.
Per contra, the learned Counsel for the contesting insurer supported the impugned judgment and award of the Tribunal.
Taking the rival submissions into consideration, the evidence and the documents on record, the point that arises of my consideration is:
Whether the impugned judgment and order passed by the Tribunal dismissing the claim petition of the Appellant-claimant is sustainable?
The facts are not in dispute. It is an unfortunate case where the Appellant has met with an accident and has sustained serious injuries. It is the case of the Appellant-claimant that he met with accident, sustained injuries and took treatment for the same by spending huge money. According to him he sustained injuries in the accident on account of the rash and negligent driving of the lorry bearing Regn. No. KA-05 C 9122 driven by the second Respondent owned by the first Respondent and insured with the third Respondent at the relevant point of time. No doubt in the evidence he has stated that the driver of the offending lorry came from his behind while he was proceeding on his scooter and dashed against him due to which he sustained severe injuries. In support of the same, he produced the documents which are at Exhibits P1 to P4, P7 and P12 which are certified copies of FIR, FI, sketch, mahazar, wound certificate and charge sheet and certified copy of the order sheet in C.C. No. 1704/2007 respectively. No doubt, the police papers produced by the claimant reveals that the lorry in question is involved in the accident. Apart from the same, Ex.P12 certified copy of the order sheet reveals that the second Respondent-driver of the offending lorry has pleaded guilty and has been convicted by the criminal court. Relying on these documents the learned Counsel submits that it prima facie goes to show that the claimant has established that it was the lorry bearing Regn. No. KA-05 C 9122 involved in the accident. However, the records placed reveal that the claimant had been brought to the hospital i.e. Baptist hospital at about 12.45 p.m. and in the case sheet the entry reveals that he has been treated at 12.45 p.m.. but it has been corrected as 7.45 a.m. If according to the claimant the accident has taken place at 7.30 a.m. on 2.10.2006, the hospital records viz. the Baptist hospital records should have revealed that he had been brought to the hospital at 7.30 a.m. and not. at 12.45 p.m. Apart from this, there is a delay in filing the first information in respect of the accident before the jurisdictional police. The documents placed on record reveal that the first information has been filed before the police on 20.12.2006 nearly about 21/2 months after the date of accident which took place on 2.10.2006. Merely because the driver of the offending lorry has pleaded guilty before the Criminal Court, that does not by itself establish that the lorry in question is involved in the accident. The evidence and the documents on record reveal that the claimant has met with an accident and has sustained injuries. Unfortunately, the evidence does not clinchingly establish that the claimant has sustained injuries in the accident involving the lorry bearing Regn. No. KA 05 C 9122. The Tribunal in its order has clearly reflected the various entries in the case sheet and also the evidence of the claimant to come to the conclusion that the claimant has failed to establish that it was lorry bearing Regn. No. KA-05 C 9122 that was involved in the accident. Further, the material on record reveals that the claimant had been furnished with the vehicle number that caused him the accident on the very date of accident. Unfortunately, that document has not been produced before the Tribunal and if according to the claimant he had been furnished the number of the vehicle involved in the accident he would not have failed to take steps to file first information before the police immediately involving the lorry in question. In the absence of the same, having regard to the materials on record it: is difficult to accept the case of the claimant as rightly reflected in its order passed by the Tribunal that he has not established that in the impugned accident that it was the lorry bearing Regn. No. KA-05C 9122 that was involved in the accident resulting in injuries to him. As already pointed, out ii is an unfortunate case where the claimant has sustained severe injuries in the accident. However, for want of clinching evidence to establish that he met with an accident involving the impugned lorry, the impugned order dismissing the petition does not call for any interference in this appeal.
Accordingly, I proceed to pass the following order:
The appeal is dismissed.