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Judgment
S.N. Satyanarayana, J.—These two appeals arise out of the judgment and award dated 12.12.2006 passed in MVC No. 4318/2004 on the file of the Motor Accidents Claims Tribunal, Bangalore. The appeal in MFA 3959/2007 is filed by the claimant seeking enhancement of compensation awarded by the Tribunal whereas, the appeal in MFA 5580/2007 is filed by the contesting second respondent -Insurance Company before the Tribunal challenging the liability. Since these two appeals arise out of the same judgment, they have taken up together for disposal.
The brief facts leading to these two appeals are as under:
The claimant before the Tribunal is one Shantharaj, appellant in MFA 3959/2007. According to him, on 15.7.2004 at about 8.00 p.m. while he was walking on the extreme left side of the road near Thattikere road, Lokanayaka Thandya, within the limits of Harohalli Police Station, a motor cycle bearing No. KA.02.EE.7273 belonging to the first respondent before the Tribunal, insured with the second respondent therein, came and dashed against him, resulting in grievous injuries.
It is stated that, immediately after the accident, he was taken to Sanjay Gandhi Hospital, where he was admitted as inpatient from 15.7.2004 to 6.09.2004 for the fracture of right femur and other related injuries. Subsequently, it is seen that, a claim petition is filed by him against the owner and insurer of the motor cycle bearing No. KA.02.EE.7273 seeking compensation for the injuries said to have caused to him in the accident dated 15.7.2004 allegedly involving the aforesaid hero honda motor cycle.
In the proceedings before the Tribunal, claimant examined himself as PW1. In support of the injuries suffered and treatment that was provided to him in Sanjay Gandhi Hospital, he examined PW2- Dr. Prakashappa, Orthopedic surgeon of Sanjay Gandhi Hospital. In the said proceedings, he also examined another person by name Subramani as PW3 stating that he was an eye witnesses to the accident in which he was injured involving motor cycle bearing No. KA.02.EE.7273. In support of his claim, he also produced and marked in all 07 documents as Exs.P1 to P7. On behalf of respondents, one of its officers by name B.R. Navalgund, has been examined as RW1 to substantiate denial of involvement of the vehicle bearing No. KA.02.EE.7273, on behalf of respondent- Insurance Company three documents were produced and marked as Exs. R1, R2 and R3.
The Tribunal, on appreciation of the pleadings, oral and documentary evidence available on record, proceeded to accept that the accident has taken place as stated by the claimant involving motor cycle bearing No. KA.02.EE.7273 belonging to first respondent and insured with the second respondent and also accepted the evidence regarding the disability suffered by the claimant in the aforesaid accident and the length of treatment which was provided to him in Sanjay Gandhi Hospital and proceeded to allow the claim petition awarding a global compensation in a sum of Rs. 28,000/- payable with interest at 6% p.a., from the date of petition till the deposit of the entire amount.
The claimant not being satisfied with the quantum of compensation has come up in appeal in MFA 3959/2007. Similarly, the second respondent- Insurance Company being aggrieved by the finding of the Tribunal that the accident is caused due to involvement of vehicle bearing No. KA.02.EE.7273 has come up in this appeal, challenging the finding of the Tribunal regarding the involvement of the aforesaid vehicle and consequently liability being saddled on it in respect of the accident in which the said vehicle has not been involved.
Heard the counsel for the appellant in both the appeals who are respectively claimant and contesting respondent -Insurance Company before the Tribunal. On going through the grounds of appeal in both the appeal memorandums, with reference to the finding of Tribunal in the judgment impugned and also the pleadings, oral and documentary evidence available on record, the following points arise for consideration:
(i) Whether the finding of the Tribunal holding that the accident resulting in injuries to claimant is caused by motor vehicle bearing No. KA.02.EE.7273 is just and proper?
(ii) What order?
this Court, after hearing the counsel for appellant and respondent and on going through the judgment impugned and the material on record, proceed to answer the aforesaid point in the negative and in favour of Insurance Company, for the following reasons:
The fact that claimant Shantharaj met with an accident on 15.7.2004 is not in dispute. It is further not in dispute that in the said accident, he suffered fracture of left femur of his leg and also other bodily injuries as stated in the wound certificate issued by the Sanjay Gandhi Hospital. It is also seen that, he was inpatient in the said hospital for the period from 15.7.2004 to 6.9.2004, during which period, he was treated for the aforesaid injuries. However, the material available on record discloses that, when the claimant was admitted to hospital immediately after the accident, based on his statement, it is recorded by the Doctor in Sanjay Gandhi Hospital that, the road traffic accident said to have been caused on 15.7.2004 due to hit by a tempo while claimant was walking on the road. In the said document, which is the case summary and discharge record, which is at Ex. P2, it is seen that the claimant was also under the influence of alcohol at the relevant point of time. In fact, Ex. P2 runs into several pages including case summary and discharge record and also the accident details recorded under inpatient No. 29437. So far as document, which is referred to as details of accident attached to Ex. P2 discloses that, in the column meant for history of present injury, it is stated as under " was knocked down by a tempo while walking on road". This appears to have been recorded initially at the time of his admission. Thereafter, it is seen that the word ''Tempo'' is struck down and on top of that, ''two wheeler'' is written. While doing correction, care is not taken to see that the same word is inserted wherever the word tempo is repeated. This one isolated correction which has taken place altering the word ''tempo'' being the cause of accident has remained unaltered.
It is also seen from the record that, in the said proceeding, an FIR is lodged after the accident, wherein, it is stated that accident is caused due to rash and negligent driving of vehicle bearing No. KA.02.CC.7273, the name of the owner and driver of the vehicle is stated to be unknown in the aid FIR which is lodged on 18.7.2004 at 4.00 p.m. The delay of 3 days in lodging the FIR is not forthcoming in the said document. Contrary to the document at Exs.P1 and P2, the claimant proceeded to state in his evidence as PW1 that, he was hit by motor cycle No. KA.02.EE.7273. In the evidence, he admits that only one complaint was lodged by him on 18.7.2004 and he also clearly admits that, he has not filed second complaint and no second FIR is recorded subsequent to Ex. P1. However, he states in his evidence that, charge-sheet is filed against motor cycle No. KA.02.EE.7273 by the police. When admittedly, he has referred to the vehicle No. KA.02.CC.7273 in FIR at Ex. P1, what is the basis for the police to implicate the vehicle bearing No. KA.02.EE.7273 is not forthcoming from records.
Admittedly, there is no second complaint either by the claimant or anybody else. Strangely, in this case, though charge sheet is said to have filed by the police, copy of the same is not produced and marked. In addition to that, a total stranger is brought before the Court by complainant as PW3-eyewitness. The said eye witness also does not stand by his own statement in asserting that he has seen the accident being caused by the vehicle KA.02.EE.7273. He admits that he went to police station, no police complaint is lodged by him, it appears police told him to wait near hospital and they would come and record his statement in the hospital which has not taken place. All these lacuna in the oral and documentary evidence clearly shows that, the documents which are relied are fabricated documents. The entire proceedings leads to manipulation and deceit. There is nothing on record to show the involvement of vehicle bearing No. KA.02.EE.7273. Police have failed to explain how did they come to know about involvement of this vehicle being the cause for accident.
Though there is nothing on record to show involvement of motor cycle bearing No. KA.02.EE.7273, the Tribunal has happily proceeded to accept these fabricated documents and deliberately refused to look into the lacunas therein and has proceeded to allow the claim petition to award compensation. This clearly indicates that the Tribunal has dealt with this case in the most shabbiest way. In that view of the matter, it is clearly seen that the judgment and award passed by the Tribunal in allowing the claim petition in MVC 4318/2004 does not stand to reason, in the light of the aforesaid lacunas in the documents and also the oral evidence which is totally contrary to their own pleadings and also in ignoring the admission of PW1. Taking all these things into consideration, aforesaid point is answered in favour of the appellant- Insurance Company in MFA 5580/2007 and accordingly, the said appeal is allowed, the judgment and award dated 12.12.2006 passed in MVC 4318/2004 is set aside. Consequently, the claim petition is rejected. In view of the judgment and award passed in MVC 4318/2004 is set aside, the appeal filed by the claimant in MFA 3959/2007 does not survive for consideration. Accordingly, the same is also dismissed.
In view of Insurance Company appeal being allowed, the amount deposited by the Insurance Company is ordered to be released in its favour.