Sri.Abbanna S/o Venkataswamappa vs Appanna S/o Ramakrishnappa, & Anr.

This appeal is directed against the judgment and order passed by MACT, (S.C.C.H.12), Bengaluru (''Tribunal'' for short) in MVC.No.1593/2008.

Briefly stated the facts are:

The appellant filed claim petition before the Tribunal seeking compensation for the injuries alleged to be sustained in the motor vehicle accident which occurred on 14.12.2007, while he was proceeding in a victor motorcycle bearing registration No.KA-07-L-5447, owing to the negligence of the driver of the lorry bearing registration No.KA-01-2998, which was duly insured with the insurer - respondent No.2 herein. The respondent No.2 herein - insurer, entered appearance after issuance of service of notice and contested the claim.

On evaluating the evidence on record, the Tribunal dismissed the claim petition with costs. Aggrieved by the same, the appellant is before this Court.

The learned counsel - Sri.Harish Kumar.L, appearing for the appellant, vehemently contended that the trial Court erred in mechanically dismissing the petition on the ground that the claimant did not know the lorry number, without appreciating the real fact that the Tribunal had wrongly recorded the name of one Sri.Vinay as the rider of the motorcycle in which the victim/appellant was traveling instead of Sri.Munaiah @ Muniyappa. The approach of the Tribunal that said driver Munaiah @ Muniyappa was not examined by the appellant is an erroneous conclusion. Non-examination of the rider of the vehicle in question would not disentitle the appellant to claim the compensation for the injuries sustained by him in the road traffic accident. It is further contended that the respondents have not examined any witnesses to discard the evidence of the appellant. The guilt pleaded and the acquittal of the driver of the lorry (offending vehicle) was lost sight of by the tribunal. In such factual situation, the Tribunal dismissing the claim petition is wholly perverse and untenable. That the learned counsel for appellant seeks to set aside the impugned judgment and order and to award the compensation in accordance with law.

Per contra, learned counsel Sri.Jwala Kumar, appearing for the insurance company - respondent No.2 justifying the impugned order, contends that the variance between the FIR and the evidence is apparent exfacie, that though the accident said to have been occurred on 14.12.2007, the complaint was lodged by one Mr.Muninarayanappa on 23.12.2007 with the delay of 9 days. Besides the said delay, the documents produced by the appellant itself speaks that the appellant was not traveling as a pillion rider as contended by the appellant. It is only with the sinister object of making the wrongful gain, the lorry number which was not actually involved in the accident was shown as offending vehicle which was duly insured with the insurance company. The series of discrepancies found in the documents would establish that the offending vehicle - lorry was wrongly implicated in collusion with the owner of the said lorry. Any admission of guilt by the driver/owner of the offending vehicle - lorry in the criminal proceedings would not assist the appellant/claimant to claim the compensation under the provisions of the Motor Vehicles Act, 1988. Thus, the learned counsel seeks for dismissal of the appeal, affirming the order passed by the Tribunal.

Heard the learned counsel for the parties and perused the material on record.

At the first instance, the claim petition discloses that on 14.12.2007 at about 8.00 a.m., the petitioner after carefully observing the traffical movements slowly and cautiously was riding the victor motorcycle bearing registration No.KA-07-L-5447 on Takel village road, while so proceeding, reached at K.G.Halli railway track, at that time suddenly the driver of lorry bearing registration No.KA-01-2998 driven by its driver in a rash and negligent manner, endangering to human life, without observing any of the traffic rules and regulations and dashed against the petitioner''s motorcycle due to which the petitioner fell down and sustained grievous injuries as stated in column No.11 of the petition, in the said accident, the petitioner''s motorcycle was also extensively damaged. An amendment was carried out to this paragraph as per the order dated 23.01.2009 wherein it was amended that, on 14.12.2007 at about 08.00 a.m., the petitioner was proceeding in a victor motorcycle bearing registration No.KA-07-L-5447 on Tekal village road while so proceeding, reached on K.G.Halli. Despite amendment, it does not indicate that the appellant was traveling as a pillion rider in the victor motorcycle bearing registration No.KA-07-L-5447. The original claim petition suggests that the appellant himself was riding the victor motorcycle bearing registration No.KA-07-L-5447. In the cross-examination of the PW.1

- appellant, it is stated that the appellant was traveling in the motorcycle and one Mr.Vinay was riding the vehicle. Mr.Vinay had the driving license to drive the vehicle. It is further stated that the appellant cannot give the number of the lorry involved in the accident. In the cross-examination portion of paragraphs, the name of Mr.Vinay has appeared repeatedly. The argument now advanced by the learned counsel for the appellant that, the Tribunal has wrongly recorded the name of Mr.Vinay instead of Munaiah @ Muniyappa as the rider of the motorcycle cannot be countenanced, at this appellate stage, on perusal of the records, more particularly the cross-examination part of PW-1. Even if any such error if appeared, the appellant had not taken any action to get it corrected. In such circumstances, the evidence of the appellant recorded in the cross- examination cannot be ignored or discarded as wrongly recorded, in the absence of any material evidence to the contrary. Ex.P-2 is the complaint lodged by Mr.Muninarayanappa, the brother of the appellant on 23.12.2007 which indicates that the accident in question occurred on 14.12.2007 due to the negligence of the driver of the lorry bearing registration No.KA-01- 2998. In the said complaint, the complainant has contended that the driver of the said lorry rammed to the vehicle victor bearing registration No.KA-07-L-5447 in which, his brother was traveling. Further it is contended that, one Sri.C.Muniyappa S/o Chinnappa was the eyewitness to the said accident, who had shifted the victim to the hospital at Kolar for the medical treatment. Nowhere the said complaint discloses that said C.Muniyappa was the rider of the vehicle nor the appellant was traveling as a pillion rider. At this juncture, it would be apt to refer to the judgment of the Hon''ble Apex Court in the case of Ravi V/s. Badrinarayan and others, reported in 2011 AIR SCW 1530, wherein the Hon''ble Apex Court has held that - "In accident cases, human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the Courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinized more carefully."

Applying the principles of law enunciated by the Hon''ble Apex Court, all that the delay of 9 days in lodging the complaint, the petition cannot be thrown out at the threshold only on the point of delay in lodging the complaint but the same has to be examined and scrutinized more carefully and particularly with regard to the evidence and contents of the FIR. The contents of the FIR read with the evidence of PW-1 disclose the discrepancies. As aforesaid, PW-1 himself has clearly admitted that one Mr.Vinay was riding the motorcycle whereas no such name of Mr.Vinay appears in the complaint lodged by Muninarayanappa, the brother of the victim. The claim petition filed at the first instance, thereafter which was amended also does not disclose that the appellant was the pillion rider and Mr.Vinay or Muninarayanappa was the rider. These inconsistencies coupled with the other documents clearly establishes that the lorry bearing registration No.KA-01-2998 which was duly insured, was not at all involved in the accident. In such circumstances, any guilt admitted by the driver of the lorry before the Criminal Court is not binding on the Tribunal while awarding the compensation under the Motor Vehicles Act, 1988. Though much emphasis was placed by the learned counsel for the appellant on the said guilt accepted by the driver of the lorry and acquittal by the Criminal Court that would not come to the assistance of the appellant in these proceedings. In addition to this, the Ex.P-7 - Medical legal certificate; Ex.P-8 - Discharge card; Ex.P-9 - Out patient card; and Ex.P-13 - Inpatient admission record - would not support the case of the appellant that he sustained the accidental injuries on 14.02.2017 due to the negligence of the driver of the lorry bearing registration No.KA-01-2998.

For the reasons aforesaid, no irregularity or infirmity is found in the impugned judgment and order.

The appeal stands dismissed as devoid of merits. No order as to costs.