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Judgment
G. Narendar, J. - Heard the learned counsel for the appellant.
The appeal is listed for admission.
Being aggrieved by the impugned judgment and award of the Tribunal rendered in M.V.C. No. 2327/2004 dated 21-8-2009, the appellant-insurer is before this Court.
It is the case of the appellant that on 2-7-2004, the 1st respondent-claimant was proceeding on a motorcycle bearing No. KA-22/U-7939 as a pillion rider from Belgaum to Bagalkot road. The said motorcycle was being driven by the 1st respondent-claimant and that he was driving it in a rash and negligent manner. When they reached near Mutaga, i.e., the accident spot, at about 20.00 hours, a dog suddenly ran across the road, thereby the rider was constrained to apply brakes abruptly resulting in the vehicle skidding on the road and resulting in the accident. On account of the accident, the 1st respondent-claimant sustained grievous injuries to head and backbone and that he was shifted to KLE Hospital Belgaum, wherein he was treated as indoor patient and spent huge sum of money and still he is undergoing follow up treatment. It is also stated that he is a person with handicap.
It is also the case of the 1st respondent-claimant that at the time of the accident, he was hale and healthy. He was doing business and agriculture and he was earning a handsome amount of Rs. 10,000/- per month, out of which he was maintaining the family members. But now due to the injuries suffered on account of the accident, he has suffered mentally, physically, financially and has become permanently disabled and not in a position to earn his livelihood and that the accident had virtually ruined his life. It is asserted by the 1st respondent-claimant that the accident occurred solely on account of rash and negligent riding of the motorcycle bearing No. KA22/U-7939. Hence, he prayed for an award of Rs. 5,00,000/-.
The appellant-insurer entered appearance and filed statement of objections. The standard defences were raised and the case of the 1st respondent-claimant was denied.
The 1st respondent-claimant entered appearance and admitted the accident. At paragraph 5 of the objections'' statement, the 1st respondent-claimant has stated as below:
"(5) ...............This respondent submits that the said accident occurred due to unavoidable circumstances on the part of this respondent."
The 1st respondent before the Tribunal is the owner of the offending vehicle i.e., the motorcycle bearing No. KA-22/U-7939. It is the case of the 1st respondent herein that on suffering injury, he was rendered unconscious and in fact he was unconscious for almost eight days.
The Tribunal after considering the pleadings on record and the evidence adduced was pleased to award a sum of Rs 88,100/- with interest at 6% per annum.
Learned counsel for the appellant-in surer would vehemently submit that this is a concocted and false case and a fraud has been played upon the Court. He would submit that the wound certificate - Ex. P-5 clearly demonstrates that offending vehicle was not involved and that the 1st respondent-claimant had fallen from his own three wheeler scooter and sustained the injuries. In fact, the appellant-insurer has tendered evidence only on the said point alone. Additionally, it is argued that the rider of the motorcycle did not possess valid driving licence.
On behalf of the 1st respondent-claimant, the 1st respondent-injured claimant has examined himself as P.W. 1 and he has also got examined his son who furnished the information to the hospital authorities as P.W. 2. Additionally, the doctor has also been examined as P.W. 3. The appellant-insurer had examined one of its officers as R.W. 1. As stated above, the only defence by the appellant at the time of evidence is that the offending vehicle is not involved in the said accident and this is based solely on the information recorded in the wound certificate.
In the light of the above contentions, this Court is constrained to look into the material on record. It is a fact that P.W. 2, the son of the 1st respondent-injured claimant was not an eye-witness nor he was at the scene of accident. This fact is not disputed by the appellant-injured. It is an admitted case of the 1st respondent-claimant and the son who have been examined as P.Ws. 1 and 2. It is not in dispute that P.W. 2 furnished the information to the hospital authorities. It is asserted by P.W. 2 (victim''s son) that it was on account of misconception and that he was not aware as to how the accident had occurred. In fact P.W. 2 has sworn to an affidavit to this effect. A perusal of the cross-examination of P.W. 2 does not demonstrate anything adverse to the stand taken by P.W. 2 which is also the case of the claimant. In fact nothing has been elicited in the course of cross-examination which would cast any doubt on the veracity of his statement. A perusal of the examination-in-chief and cross-examination of P.W. 1, the victim, would demonstrate that nothing adverse has been elicited in the course of cross-examination. In fact, P.W. 1 has clarified that on account of fall from the motorcycle, he lost his consciousness and he was unconscious for several days and hence, they could not immediately lodge the complaint or inform the jurisdictional police. The victim and his son, P.Ws. 1 and 2 have withstood the cross-examination and nothing adverse has been elicited to disbelieve their assertions. That apart, the factum of accident has also been admitted by owner of the motorcycle and the person who was riding it. It is also seen that the jurisdictional Police have registered FIR and investigated the matter and nothing adverse to the claim of the victim has been discovered in the course of investigation. It is true that the content of a FIR is not of a probative value, but is a persuasive value. It is seen that the material on record i.e., the statement of objections filed by the 1st respondent and the affidavit filed in support of the case of the victim probabilize the case made out by the 1st respondent-claimant. The learned counsel for the appellant would strenuously contend that the entry in the wound certificate or injury certificate regarding the accident is of probative value and the same has been upheld by a Division Bench of this Court in M.F.A. No. 3792/2006 disposed of on 11-12-2008 which would read in paragraph 2 of the said judgment as follows :
"2. The counsel for the insurer submits that the injury is not on account of the motor vehicle accident. The wound certificate produced shows that the petitioner sustained injury on account of fall from a slide. The counsel submitted that although appeal is not filed against the award, the insurer is entitled to resist the enhancement on the basis of the material on record. The contention of the counsel for the insurer appears to be sound and proper. The wound certificate does not disclose that the injury is on account of the motor vehicle accident. In that view, the appeal is dismissed."
The said judgment has not disclosed the facts and circumstances in which it has been rendered. On the contrary, the material on record, more particularly the evidence of P.W. 2 and the statement of the 1st respondent (before the Tribunal) corroborate and probabilize the case of the 1st respondent-claimant. No searching or serious cross-examination of the witnesses has been done by the appellant. The cross-examination are perfunctory and that apart, no other material has been placed on record by the appellant which would falsify or even cast on a doubt about the veracity of the case made out by the victim/claimant. The appellant counsel relies upon another judgment of this Court in M.F.A. No. 7025/2011, which this Court while rejecting the claim has been pleased to observe that on account of raise in fraudulent claims, the mere filing of Police complaint or charge-sheet by itself is no proof of involvement in the vehicle and the accident. When allegations of the false implication of vehicle has been made, the stricter scrutiny of evidence is required.
The facts and circumstances and the material on record including the evidence in the case on hand are on various facts discussed in the above said judgment. In the case on hand, the information given to the hospital authorities i.e., the son of the victim was clearly and unambiguously stated on oath that he gave the information to the hospital authorities under a misconception, as his father regularly uses the three wheeler motorcycle for his mobility and under a mistaken notion that his father might have travelled using the same vehicle tendered the information to the hospital authorities. He has further stated that subsequently he came to know about the factum of his father having travelled on the offending vehicle as a pillion rider nothing is elicited in the cross-examination which would excite this Court to disbelieve the version as set out by P.W. 2. In fact, the factum of accident has been admitted by the owner itself and as stated above, the Police complaint and the FIR only aid this Court in probabilizing the fact of the accident as pleaded by the victim.
In view of the above discussion, this Court does not find any ground, which warrants interference in the impugned judgment and award. Accordingly, the appeal is dismissed without admitting.