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Judgment
S.N. Satyanarayana, J.
The second respondent - insurance company in MVC. No. 3845/2009 on the file of MACT, Bangalore, has come up in this appeal challenging the finding of tribunal in holding that claimant before tribunal, first respondent herein has suffered injuries in a road traffic accident dated 27.2.2009 involving motor cycle bearing registration No. KA-01/EH-1211 belonging to second respondent herein and insured with appellant. Though this appeal has come up for admission, since lower court record is received, at the request of counsel for the parties it is taken up for final disposal.
Heard the learned counsel for appellant - insurance company and respondent - claimant. The case of claimant is that on 27.2.2009 at about 8.30 pm., when he was proceeding on the motor cycle belonging to him bearing registration No. KA-02/EQ.4060 he was hit by the rider of motor cycle bearing registration No. KA-01/EH 1211 near Madagondanahalli on NH.48. It is stated that in said accident claimant has suffered the following injures:--
"(1) right foot exposing tenderness, (2) right leg 1 x 1 cm., (3)right heel pad injuries, (4) right forearm with abrasion, (5) GCS 7/15, (6) left shaft of humerus fracture, (7) right foot 4th metatarsal fracture, (8) right foot 5th metarasal fracture (9) right 3rd toe injuring with dislocation, (10) right foot crush injury, (11) CT revealed (R), (12) left temporal bone fracture, (13) left side chest injuries with pneumotherax, and (14) 9 and 10th RIB fracture."
It is stated that he was immediately taken to Harsha hospital, Nelamangala, at about 9.00 pm., on the same day he was admitted there as inpatient where his injuries are said to have attended to and in the process the injury was stabilized by debridement and also amputation of third toe was conducted on his right leg by resuturing the operated area. It is also stated that he was inpatient in said hospital from 27.2.2009 to 12.3.2009 and thereafter, it is stated that he was readmitted to Adichunchanagiri hospital from 12.3.2009 to 25.3.2009. The treatment, which was provided to him in Harsha hospital is extended there. Subsequently, the claim petition is filed seeking compensation from the owner and insurer of the offending motor cycle.
In the proceeding before tribunal the claimant has relied on the complaint, which was filed by his brother with Kudur police of Magadi Taluk, Ramanagara District, on 3.3.2009. The said document is marked as Ex. P2. Based on Ex. P1 - FIR is registered. On going through Ex. P1, it is seen that there is reference to accident having taken place on 27.2.2009 at about 8.00 pm., in the night. The entire complaint which is drafted on a white sheet does not contain number of vehicle, which is said to have caused the accident, in other words there is reference to the motor cycle of claimant being hit by another two wheeler coming from the opposite direction. However, there is insertion of the number KA-01/EH-1211 and below that Honda splendor in Kannada language is inserted subsequently and the way in which it is inserted would clearly indicate that the vehicle number was not given at the time of registering the complaint. This presumption can be drawn for the reason that in the complaint the vehicle number of claimant is written legibly in a particular handwriting and colour of the ink, whereas insertion of KA-01/EH-1211 on the left side margin is in different handwriting and in different style of writing which does not gel or tally with the contents of complaint. In addition to that it is seen from the records that when complaint is lodged on 3.3.2009 at about 9.30 in the morning, the spot mahazar is drawn on the same day between 12.30 pm., and 1.15. pm. It is seen that admittedly as observed above, the number of vehicle was not there at the time of filing of compliant but, one Lakkanna was waiting for the police at the alleged place of accident waiting for them to come and draw the mahazar, which is drawn as stated above and to that mahazar signature of Lakkanna is also taken.
Based on these two documents further documents are generated to demonstrate as if the accident has taken place. However, the wound certificate which is produced and relied on by claimant at Ex. P6, which is issued on 27.2.2009 does not refer to the injury suffered by claimant as injury suffered in MLC (Medico Legal Case). It is further seen that no acceptable reason is given by the claimant to demonstrate why the complaint was not lodged with the police either on the same day of accident or immediately on the next day morning. Assuming for a moment that claimant was taken to Harsha hospital on 27.2.2009 with a history of injury suffered in a road traffic accident, why the same is not referred to in the wound certificate, which is at Ex. P6 is not explained. It is further seen that if only the claimant had stated that injuries are suffered in a road traffic accident, it would have been the responsibility of hospital to inform the jurisdictional police immediately thereafter. It is also not done. Surprisingly from 27.2.2009 nothing has taken place in the matter till 3.3.2009 9.30 am.
On 3.3.2009 at 9.30 am, in the morning a complaint which is at Ex. P2 is filed by the brother of claimant who admittedly is not an eye-witness to the accident. There is nothing on record to demonstrate as to when police identified the vehicle, which caused the accident, when the notice was sent by them to owner calling upon him to produce the same for inspection is not at all shown in the police records. It is further seen that the motor vehicle department has conducted inspection of the vehicle belonging to claimant and the alleged offending vehicle on 11.3.2009. There is nothing on record to demonstrate when the said vehicle was apprehended, when it was referred for IMV inspection and when the said inspection was conducted. With this, it is clearly seen that the entire claim is a doctored one i.e., the vehicle is planted, documents are fabricated to hold that the claimant who is said to have suffered some injury involving his vehicle was hit by another vehicle. However, the contention that it is due to collision with another vehicle is not properly established, more particularly involvement of the vehicle said to be belonging to second respondent and insured with appellant.
The learned counsel for claimant tried to substantiate that second respondent herein, owner of offending motor cycle bearing No. KA-01/EH.1211 has appeared before the police, admitted his guilt and paid fine for having caused the accident. This Court would observe that, since accident being a tortuous act and injury suffered is arising out of tortuous act of said owner and driver of offending vehicle and if, he admits that he has caused the accident, this Court find that there is absolutely no impediment for the claimant to proceed against him and receive compensation. However, in the facts and circumstances, when the entire material is appreciated with reference to the pleading, oral and documentary evidence available on record, it is prima facie seen that involvement of vehicle bearing registration No. KA-01/EH.1211 belonging to second respondent and insured with appellant has no nexus to the accident. It is clearly seen that said vehicle is planted subsequently by claimant and his well wishers with the active connivance of jurisdictional police in identifying the aforesaid vehicle and fixing the same as vehicle casing the accident. It is needless to say that the owner and rider of vehicle when admitted his guilt before police shied away from the tribunal i.e., he neither appeared before the tribunal and supported the fact that accident is caused by his rash and negligent driving nor opposed the same. Instead, he has chosen to remain ex parte and away from the proceeding, consequently assisting the claimant to seek compensation with himself being placed ex parte.
In that view of the matter, this Court feel that this is one more fraudulent case which is foisted by the claimant with the assistance of police with a sole intention of trying to make unlawful gain out of an unfortunate incident of accident involving the vehicle of claimant himself. How the accident has taken place and how the injuries are suffered are not forthcoming in the documents available on record. However, the version that is given by claimant appears to be total false in the background of discussion as above.
In that view of the matter, the appeal filed by the insurance company is allowed. The judgment and decree dated 19.3.2011 passed in MVC. No. 3845/2009 on the file of 3845/2009 is modified. The liability fixed on the insurance company to pay compensation to claimant in a sum of Rs. 3,90,800/- payable with interest at 6% pa., from the date of petition till date of payment of entire amount is hereby set aside.
In view of the appeal being allowed, the amount in deposit is ordered to be released in favour of appellant.