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Judgment
A.S. Pachhapure
The Insurer has filed this appeal challenging the Award granting compensation to the 1st respondent herein, who is said to have suffered injuries in a motor vehicle accident. The facts relevant for the purpose of this appeal are as under:
The parties are referred to as they were referred before the Tribunal, For the purpose of convenience.
Respondent No. 1 herein is the petitioner, whereas respondent No. 2, the appellant and respondent No. 3 are respondent Nos.1 to 3 respectively before the Tribunal. The petition was filed u/s 166 of the Motor Vehicles Act alleging that on 25.04.2007 at about 5.30 p.m., when the petitioner was proceeding on his Honda Activa bearing registration No. KA-41 H-6872 as a pillion rider, car bearing registration No. KA-01 Z-7666 came in a high speed driven by its driver in a rash and negligent manner and hit the scooter. The petitioner is said to have sustained grievous injuries and was taken to the hospital for treatment. He incurred huge expenses and suffered disability. Hence the petitioner tiled a Claim Petition seeking a sum of Rs. 3,50,000/- as compensation for the injuries sustained.
The respondents contested the claim and the insurer was permitted to contest the claim on all the grounds. During the enquiry the petitioner, is examined as P.W.1, the doctor P.W.2 and in their evidence got marked the documents Exs.P-1 to P-12. The respondent No. 2 examined one of its Senior Executive Officer as R.W.1 and in his evidence got marked Exs.R-1 to R-4. The Tribunal after hearing the counsel for the parties and on appreciation of materials on record, held actionable negligence on the part of the driver of the car and granted compensation of Rs. 2,17,030/- with interest at 8%. Aggrieved by the said judgment and award, the present appeal has been filed.
I have heard the learned counsel for the appellant. Respondents though served with the notice, are absent.
The point that arise for my consideration is:
Whether the material placed on record is sufficient to prove the accident due to rash and negligent driving of the car bearing registration No. KA-01 Z-7666 by its driver?
To prove the occurrence of accident and rash and negligent driving of the car it is the oral evidence of P.W.1 alone in addition to the documents produced which will have to be taken into consideration to find out the involvement of the car and rash and negligent driving by its driver. As could be seen from the cross examination, after the accident petitioner was admitted in Sagar Apollo Hospital and he was treated as inpatient. He states in the cross examination that he stated about the manner of accident in Sagar Apollo Hospital. Ex.P-7 is the discharge summary issued by the Sagar Apollo Hospital and as could be seen from the history of incident, it is stated "History of RTA on 25/04/07 at 5:00 p.m., in Goodshed Road near Majestic. Patient was riding a two wheeler, when the oilier two wheeler was passing by, incidentally touched the handle of the bike. He lost his control and put his right leg over the ground to avoid fall. Then he developed pain and swelling over the right foot suddenly. Was shown to Dr. Khincha and advised for x-ray, found to have fracture right anterior tibial spine. Has come here for further management." It is evident from Ex.P-7 that the petitioner was admitted in the hospital on 26.04.2007 at 11.54 a.m., and was discharged on 01.05.2007. Despite the fact that it was a medico legal case, the hospital authority did not sent an intimation to the police about the occurrence of this accident. Likewise the insurer has produced Ex.R-2, discharge summary and in the history of the incident in addition to whatever is stated in Ex.P-7, an additional word has been used as Avenue Road/Goodshed road near Majestic. So this is the earliest information of the accident to the hospital authorities, particularly to the doctor and they have made an entry of the history of the accident in records. So prima facie looking to these documents, it could be inferred that the accident was as stated in the history of the incident recorded by the Sagar Apollo Hospital on the first day of admission of the petitioner in the hospital.
But as could be seen from the manner of accident in which the petitioner makes a claim before the Tribunal, the complaint in respect of this accident came to be filed before the police on 02.05.2007, there is an inordinate delay of seven days in lodging the complaint. The copy of the complaint has been produced along with the first information report, Ex.P-1. The petitioner stated that on 25.04.2007 at about 5.30 p.m., while he was proceeding on his Honda Activa vehicle bearing registration No. KA-41/H-6872 slowly, cautiously from South to North direction on Avenue Road, while he was in front of Adigas Hotel, at that time a Ford Icon car bearing registration No. KA-01/Z-7666 driven by its driver in a rash and negligent manner coming from behind and dashed with his Honda Activa from behind and due to the terrific impact, he fell down with the vehicle and sustained severe injuries to his right leg resulting in a fracture of knee. He was immediately taken to Shekar Hospital by the public and after first aid, he got admitted at Sagar Apollo Hospital, Jayanagar, So the contents of the first information report which came to be lodged on 02.05.2007 are inconsistent with the history of incident as recorded by the doctors. The reason as to why there is such an inconsistency has not been explained by the petitioner in his evidence. Furthermore, in the cross examination he admit that he has stated the manner of accident in the Sagar Apollo Hospital. He also stated that he was not unconscious after the accident, but he was tired. At another stretch, he states it was the car driver who gave the information about the accident in the hospital, but nowhere in the complaint he states that the car driver accompanied him to the hospital and the medical report also does not reveal that he was accompanied by the driver of the car. So in this controversy, the documents which have been produced by the petitioner and also the respondents, the interested version of P.W.1, the petitioner goes inconsistent with the contents of his own document, Ex.P-7 and also Ex.R-2, the document produced by the insurer. So why he changed his version and in the place of another motet cycle, why the car was substituted, leads to serious doubt and in this context the version of P.W.1 is insufficient to prove the case atleast to the extent of preponderance of probabilities.
Learned counsel for the appellant has placed reliance to on an unreported Judgment, the decision of the unreported Apex Court in Civil Appeal No. 3171/2009 North West Karnataka Rd. Transport Corp. Vs. Gourabai & Ors., the relevant, portion of the judgment reads as under:
The effect of the evidence of the doctor and exhibit R-1 does not appear to have been looked into by the MACT and the High Court. MACT did not place reliance on the document R-1 on the ground that the brother of the injured staled that he did not know what was written in the document and his signature was taken on one page. This conclusion overlooks from the fact that a doctor will not take a signature on a piece of paper mentioning something which is not correct. Exhibit R-1 establishes beyond the shadow of doubt that the injuries sustained were not on account of any vehicular accident. That being so, the MACT and the High Court were not justified in making any award. The order of the MACT and High Court stands set aside.
Here in the above case Ex.R-1, medical record discloses the manner of the accident, which was different from the one stated by the petitioner. In these circumstances, the Apex Court observed that Ex.R-1 establishes beyond the shadow of doubt that the injuries sustained are not on account of any vehicular accident. So prima importance has to be given to the entries made in the medical records unless the first information report is lodged to the police immediately after the accident. Even for the delay in lodging the complaint, there is no acceptable explanation offered by the petitioner These circumstances will lead to only conclusion that the petitioner used the occasion to get the compensation by involving a vehicle, which had no concern with the accident at all. In that view of the matter, I am of the opinion that the Tribunal committed an error in appreciating the evidence and in coming to the conclusion that the accident was due to the rash and negligent driving of the car by its driver. The circumstances stated above have not been considered by the Tribunal while appreciating the material placed on record. Hence the finding arrived at is erroneous and illegal. So far as the quantum of compensation is concerned, though it appears to be reasonable, as the petitioner has failed to establish the occurrence of the accident and the rash and negligent driving of the car by its driver, he is not entitled to any compensation. In that view of the matter, I answer the point in the negative and proceed to pass the following:
ORDER
The appeal is allowed. The Judgment and Award dated 04.12.2009 passed by the Tribunal is set aside. The petition filed by the petitioner u/s 166 of the Motor Vehicles Act is dismissed, with no order as to costs
The amount in deposit shall be refunded to the Insurance Company.