Dinakar vs Basawaraj

A.V. Chandrashekara, J.—Present appeal is filed by the claimant of a case bearing MVC No. 1316/2009, which was pending on the file of MACT at Gulbarga. Claim petition has been dismissed on the ground that there was delay of five months in filing the complaint to the police. Therefore, the Tribunal has suspected the genuineness of the accident and the appellant being involved in the accident said to have taken place at about 5.00 p.m. on 27.02.2009 in Ganga Nagar near Hanuman Temple of Gulbarga.

According to the appellant, he was proceeding on a motorcycle bearing Regn. No. KA-32/Q-3458 and when he reached a place near Hanuman Temple in Ganga Nagar, Gulbarga, the rider of motorcycle bearing Regn. No. KA-32/U-5866 came from the opposite direction, being driven rashly and negligently and dashed against his motorcycle. As a result of the same, the appellant is said to have fallen down from the motorcycle and sustained injuries. He was immediately, admitted to Dr. S.G. Shah Sanjota Hospital at Gulbarga. He is stated to have spent sufficient amount for his treatment and his future working capacity has came down on account of the accident due to the negligence of the rider of the motorcycle bearing No. KA-32/U-5866.

Respondent No. 1 - the owner had been duly served and represented by an Advocate. Respondent No. 2 - the insurer of the motorcycle bearing No. KA-32/U-5866 has contested the matter, denying the occurrence of the accident and involvement of the petitioner in the accident.

On the basis of the above, the following issues came to be framed:

"1. Whether the petitioner proves that on 27.2.2009 at about 5.00 pm. the petitioner was going towards his house at Ganga Nagar from Market on Motor cycle brg. No. KA-32/Q-3458, near Hanuman Temple one motor cycle brg. No. KA-32/U-5866 came from opposite direction in high speed an in rash and negligent manner dashed to the petitioner's vehicle, due to which petitioner sustained grievous injuries?

Whether the respondent No. 2 proves that the rider of the offending vehicle not holding valid and effective DL at the of accident and also violated the terms and conditions of the policy?

Whether the Respondent No. 2 further proves that there is contributory negligence on the part of vehicles involved in the accident?

Whether the petitioner is entitled for compensation? If so, what amount and from whom?

What award or order?"

The petitioner-appellant is examined as P.W. 1 and Dr. Subhash Shah, who had treated him in the hospital is examined as P.W. 2. 12 Exhibits have been got marked on his behalf. Mr. Vitthal, a responsible officer of the 2nd respondent is examined as R.W.1 and insurance policy is got marked, since the alleged offending vehicle has been duly insured at the relevant point of time.

After hearing the arguments, issue No. 1 has been answered in negative and issue Nos. 2 and 3 have not been considered on the ground that they do not survive for consideration. Issue No. 4 is answered in negative. Consequently, the claim petition is dismissed. Hence, the judgment and award dated 21.09.2011 passed in MVC No. 1316/2009 is challenged before this Court on various grounds.

Entire records of MVC No. 1316/2009 have been called for. Perused the records.

According to the appellant, he had sustained severe injuries and was not in position to move about and therefore, he could not file the complaint in time. He has been cross-examined at length. During the course of cross-examination, he has denied all the suggestions put to him.

Admittedly, the appellant is a teacher. He chose to lodge a complaint to the police only on 28.07.2009, on the basis of which, a case was registered in Crime No. 124/2009 on the file of Additional Traffic Police Station, Gulbarga for the offences punishable under Sections 279 and 338 of IPC R/W Section 187 of the Indian Motor Vehicles Act. After conducting the investigation, final report has been filed by the police. Copy of the charge-sheet is marked as Ex. P2. The names of the persons who witnessed the accident and the persons who attested the spot mahazer have also been sited as witnesses.

Dr. Subhash Shah who treated the appellant in Dr. S.G. Shah Hospital at Gulbarga is examined as P.W. 2. of course in Ex. P7 issued by Sanjot Hospital, in which Dr. Subhash Shah was working as Orthopedic Surgeon, the history of accident is mentioned as "Accident: fall today at 5.00 p.m. and injury to right knee".

Admittedly, Sanjot Hospital is a big hospital in Gulbarga. Each hospital is expected to maintain Medico Legal Register whenever a person is admitted with the history of road accident involving motor vehicles.

The trial Court has disbelieved the certified copy of the final report i.e., charge-sheet filed against the driver of the offending vehicle on the ground that complaint was filed five months after the accident.

Dr. Subhash Shah has deposed that he had not intimated about the MLC report to the police. He is not in a position to say whether the injuries are sustained in an accident involving motor vehicles or mere accidental injuries.

Motor Accidents Claims Tribunal is always expected to make an honest effort to find out as to whether a road accident involving motor vehicles really took place. Even if the party does not produce requisite documents, it is incumbent upon the Tribunal to know whether any intimation was given by the injured to the hospital at the earliest point of time regarding accident and whether it was intimated to the police. In this regard, the Tribunal was expected to summon or get MLC Register from the hospital, in which Dr. Subhash Shah was working as an Orthopedic Surgeon. In order to ascertain the genuineness of the contents of Ex. P7 - the discharge card, the original MLC Register ought to have been summoned by the Tribunal. Having not done so, the Tribunal has committed a serious error in dismissing the petition holding that the accident appears to be doubtful, in view of the inordinate delay in lodging the complaint.

The Motor Accidents Claims Tribunals have been set up with an award object to suitably compensate the victims of road accident. In this regard, all necessary steps are to be taken by the Tribunal, more especially, keeping in view the object for which MACTs have been established.

Ex. P2 - the copy of the charge-sheet has been ignored without assigning any valid reasons, except stating that complaint was lodged five months after the alleged accident. The reasons so assigned by the Tribunal to suspect Ex. P2 are not cogent and convincing. Hence, the appeal will have to be allowed and the matter needs to be remitted to the Tribunal to take all steps to ascertain the truthfulness or otherwise of the claim made by the appellant/claimant after getting original MLC Register from Sanjot Hospital, in which Dr. Subhash Shah was working as an Orthopedic Surgeon.

ORDER

Appeal is allowed. The judgment and award dated 21.09.2011 passed in MVC No. 1316/2011 by the II Additional Senior Civil Judge & MACT at Gulbarga are set aside. Matter is remitted to the Tribunal to give comprehensive finding on issue Nos. 2 and 3 after getting MLC Register from Sanjot Hospital and if possible, summoning the police Officer, who conducted the investigation and filed the charge-sheet.

The parties shall to appear before the Tribunal on or before 12.01.2015 without awaiting further notice from the Tribunal and thereafter, the Tribunal to dispose of the matter within three months without fail in accordance with law.

Office to send a copy of this judgment to the concerned Tribunal at the earliest.