The Oriental Insurance Co. Ltd. vs Dhananjaya and Others

B. Sreenivas Gowda, J.

This appeal is by the Insurer of Tipper Lorry challenging the Judgment and Award passed in MVC No. 452/2008 by the Tribunal at Tumakuru on the ground of negligence and liability since the vehicle was not involved in the accident.

For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.

I have heard learned counsel appearing for the appellant-Insurer of Tipper Lorry and perused the Judgment and Award passed by the Tribunal including its records. The respondents Nos. 1 and 2 who are the claimant and owner of the vehicle respectively though were served with the notice of this appeal, have remained unrepresented.

Sri S.V. Hegde Mulkhand, learned counsel for the appellant submits, claimant who had sustained injuries on account of falling from his bicycle while proceeding to school with an intention to get compensation has filed a false claim petition as if he sustained injuries in the road traffic accident by involvement of a Tipper lorry. The Tribunal, without considering this actual fact has committed an error in allowing the claim petition and awarding compensation. Therefore, he prays for allowing the appeal by setting aside the Judgment and Award passed by the Tribunal.

After hearing the learned counsel for the appellant-insurer and perusing the judgment and award, the point that arises for my consideration in this appeal is,

"Whether the Judgment and Award passed by the Tribunal is sustainable in law?"

The claimant filed a claim petition in MVC No. 452/2008 before MACT, Tumakuru seeking compensation from the owner and the insurer of Tipper lorry contending that, on 23.2.2008 when he was proceeding to his school along with his father on the left side of NH 206, near Mayur Hotel in K.B. Cross, a Tipper Lorry bearing Reg. No. KA.44.683 came in a high speed in a rash and negligent manner and dashed against the claimant, as a result, he fell down and sustained multiple bleeding injuries. He was taken to Chikkanayakanahalli Hospital for first aid and thereafter, he was shifted to Siddartha Medical College Hospital, Tumakuru for further treatment. Since he had suffered head injury he was shifted to NIMHANS, Bengaluru and he has already spent Rs. 50,000/- for his treatment and therefore, he prays for allowing the claim petition by awarding just and reasonable compensation.

The owner of Tipper Lorry though was served and represented through an Advocate before the Tribunal but did not choose to file statement of objection contesting the claim petition.

The appellant-insurer arrayed as second respondent in the claim petition before the Tribunal has entered appearance through their counsel and filed statement of objection denying the case of the claimant and prayed to dismiss the claim petition.

The Tribunal based on the rival contentions of the claimant and the insurer of the Tipper Lorry has framed the following points for its consideration:

"1. Whether the claimant proves that on 23.2.2008 at 8.00 a.m. near Mayur Hotel on N.H. Road 206 Road, K.B. Cross, Tiptur taluk, he met with accident due to wrongful use of Tipper Lorry bearing Regn. No. KA.44.683 by its driver thereby the petitioner sustained injuries?

To what compensation the claimant is entitled?

To what order?"

The claimant in support of his claim, has examined his father as PW. 1 and has produced certain documents which were marked as Ex. P1 to P45. On behalf of respondents, no oral evidence was adduced and only the insurance policy was produced and marked as Ex. R1 with the consent of the parties.

PW. 1 the father of the claimant has reiterated in his evidence what was pleaded in the claim petition. Both in the claim petition as well as in the evidence, it is the specific case of the claimant that when he was proceeding to his School along with his father on the left side of the road i.e. N.H.206, near Mayur Hotel, K.B. Cross, a Tipper Lorry came in a rash and negligent manner and dashed against him, as a result, he fell down and sustained injuries. Further PW.1 in the complaint lodged to the Police as well as in his examination in chief has specifically stated that when the claimant was proceeding to his school along with him, the Tipper lorry came and dashed against the claimant and he was immediately shifted to the Government Health Centre, Chikkanayakanahalli and was provided treatment whereas, in his cross-examination, he has stated that his wife has telephoned to him and informed about the accident and till he reached the spot, the claimant was lying at the spot, so, this admission of PW. 1 in his cross-examination shows PW. 1 was not present at the time of alleged accident and he has not seen the accident. Claimant was a minor boy and no person who has seen the accident in which claimant alleged to have sustained injuries in the accident is examined. Whereas, in the discharge summary and the wound certificate marked as Ex. P3 and P7 respectively, history of incident is stated as falling down from the bicycle. The medical records of Government Hospital, Chikkanayakanahalli where claimant stated to have taken first aid is deliberately not produced. Further, complaint is lodged two days after the accident. This fact would also support the contention of the insurer that the claimant had not sustained injury in the alleged accident. The Tribunal, without considering this material aspect of the matter has committed an error in holding that the claimant has proved that he had sustained injuries in the alleged road accident that occurred on 23.2.2008 due to rash and negligent driving of driver of the Tipper Lorry. Therefore, the finding of the Tribunal on Point No. 1 is not sustainable in law and it is liable to be set aside. Consequently, the findings on point Nos. 2 and 3 are also liable to be set aside.

In the appeal, though claimant has been served with the notice of the appeal, he has not chosen to appear, probably for the reason that he is feeling guilty of the fact that he had not sustained injuries in the alleged accident. Hence, the following order:

The appeal is allowed. Judgment and Award dated 25.11.2010 passed in MVC No. 452/2008 by the Additional Senior Civil Judge and CJM, Tumakuru is set aside. Consequently, the claim petition filed in MVC No. 452/2008 is dismissed.

Amount in deposit is ordered to be refunded to the appellant.

No order as to costs.