United India Insurance Co. Ltd. vs Huchappa and Others

S.N. Satyanarayana, J—First respondent - insurer in MVC. No. 336/2008 on the file of MACT, Bengaluru, has come up in this appeal challenging the judgment and award dated 26.8.2011, wherein compensation is awarded for the injuries suffered by claimant in a road traffic accident involving scooter bearing registration No. KA-05/EV 358 insured with appellant herein. Though this appeal is at the stage of admission, since serious allegations regarding manipulation was made, lower court record is secured with an intention to dispose off this matter at the stage of admission itself.

Heard the learned counsel for appellant and perused the judgment impugned with reference to lower court record. On going through the same this Court observe the following facts;

The case of claimant before tribunal is that he was a pedestrian, hit by scooter bearing registration No. KA-05/EV 358 belonging to second respondent and insured with first respondent before tribunal. It is stated that in the said accident claimant has suffered fracture of mid shaft of femur, injuries to right leg and knee and also fracture of middle 3rd right clavicle. The claimant, who suffered aforesaid injuries in the accident dated 17.9.2007 at about 7.00 pm., was immediately taken to Victoria Hospital, where he was admitted by his own son Munesh. At the time of admitting the claimant to Victoria Hospital, it was stated that he was hit by a car while crossing the road near Sanka Garments on Mysore road. However, a complaint is lodged on 18.9.2007 i.e., next day morning at about 8.50 am. At the time of filing complaint, the very same Munesh, who admitted his father to Victoria Hospital would say that accident is caused by the rider of scooter bearing registration No. KA-05/EV 358. The particulars given with reference to accident before hospital authorities at the time of admission and the particulars furnished to the police on the next day morning i.e., on 18.9.2007 at about 8.50 am., are totally contradictory to each other. However, it is seen that based on complaint, FIR was registered and charge sheet was filed against the rider of motor cycle, who is said to have caused the accident. In the proceedings before tribunal, it is seen that claim petition was initially filed in the name of claimant himself on 16.1.2008. Subsequently, by way of amendment dated 23.3.2010 the petition is continued as if it is filed by wife of claimant as his next friend and guardian, for the reason that claimant was partially disabled and was not able to conduct the case by himself.

In the proceedings before tribunal, on behalf of claimant, his wife has adduced evidence as PW.1. Claimant has also examined Dr. P.K. Raju from Victoria Hospital as PW.2, one Sri. Nagaraja, who is said to be eye-witness to the accident as PW.3 and a police constable who is said to be available at the relevant time of accident as PW.4. In all, claimant has produced and marked 18 documents as Exs.P1 to P18. On behalf of insurance company, it had examined one S.R. Murali, one of its officer as RW.1. The authorization letter given to him for adducing evidence is marked as Ex.R1 and the insurance policy as Ex.R2. The tribunal on appreciation of pleadings, oral and documentary evidence available on record proceeded to allow the claim petition awarding compensation in a sum of Rs. 1,86,000/- and saddled the liability to pay compensation on the owner and insurer of offending scooter. Being aggrieved by the finding of tribunal in saddling liability to pay compensation on it, the insurer has come up in this appeal.

After hearing the counsel for appellant and perusing the grounds of appeal with reference to judgment impugned and lower court record, it is seen that immediately after accident claimant was taken to Victoria hospital by none other than his own son Munesh. He would inform the doctors at Victoria hospital that his father was hit by a speeding car, which has resulted in injuries to him. The said information is recorded in the MLC register maintained by Victoria Hospital and in the wound certificate, which is issued subsequently on 11.2.2008 by the very same hospital. As against this, it is seen that the very same person, who admitted his father to hospital stating that his father has suffered injuries in a road traffic accident involving car, would file a complaint before the Byatarayanapura Traffic Police, Mysore Road, vide Ex.P2, wherein he would come out with a different version stating that his father was hit by the rider of scooter bearing registration No. KA-05/EV 358. Thereafter, entire documents would indicate as if the accident is caused involving aforesaid scooter. Based on that, claim petition is also filed. At the time of evidence, PW.2 in his cross-examination would clearly say that the injured was conscious when he was admitted to hospital, he was able to speak but he was stammering. PW.2 would clearly say that it was informed to hospital that accident has taken place due to rash and negligent driving of car. Suppressing that in the entire proceedings, the involvement of car is converted into that of a scooter from the morning of 18.9.2007 when claimant''s son went to Byatarayanapura Traffic Police Station for lodging the complaint. The contents of complaint are in total deviation from the information, which was given to Victoria hospital.

In the proceedings before tribunal it is seen that the owner of motor cycle - second respondent, which is subsequently planted does not appear before the Tribunal. He does not file written statement and would remain ex-parte. It is seen that when claimant took the trouble of examining PWs.3 and 4 to demonstrate that accident is caused due to involvement of scooter belonging to second respondent and insured with first respondent, deliberately does not examine the complainant. Therefore, if complaint is independently seen as the evidence of complainant Munesh, who is son of claimant, he would state in his complaint that immediately after accident at the place where his father was lying down people surrounded there gave him the particulars of scooter, which caused the accident. That means to say that even before his father was shifted from the place of accident to hospital, he had the information regarding the manner in which accident took place, who caused the accident, number of vehicle and other particulars. If that is to be believed as per the contents of complaint, which is at Ex.P2, then why the very same person who took his father to Victoria hospital would inform to the hospital authorities that his father was hit by a car resulting in injuries to him, does not stand to reason. Therefore, the only thing this Court can understand is, whatever that is stated by the son of claimant immediately after the accident in informing the same to hospital authorities as caused due to rash and negligent of a car, is the correct information. However, the information which is provided at the time of lodging complaint is an improvement over the facts to suite the requirement of claimant and his family members. This simple thing is not seen by the tribunal. Assuming that the same is understood by the tribunal, for the reasons best know to it, it has ignored the same. Infact, there is sufficient material to support this in the evidence of doctor - PW2, who has treated the claimant at Victoria Hospital, who would also say that as per the records the claimant was injured by a car, which caused said accident. In that view of the matter, this Court feel that entire proceedings before tribunal is doctored with the assistance of police and the so called eye-witnesses PWs.3 and 4 in trying to suppress the correct information, which was given regarding the accident at the earliest point of time. In that view of the matter, judgment and award dated 26.8.2011, so far as it pertains to saddling liability on the insurer of alleged scooter bearing registration No. KA-05/EV 358 is required to be set aside by allowing this appeal.

Accordingly, the appeal is allowed. The judgment and award dated 26.08.2011 passed in MVC. No. 336/2008 on the file of MACT, Bengaluru is set aside and the insurance company is absolved of its liability. In view of the appeal being allowed, the amount in deposit is ordered to be refunded to appellant.