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Judgment
Admit. Learned advocate Mr. Dakshesh Mehta waives service of notice of admission on behalf of respondent no.3.
Having regard to controversy in narrow compass, with consent of learned advocates for the respective parties, the matter is taken up for final
hearing today.
This appeal is filed under Section 173 of the Motor Vehicles Act, 1988 challenging the judgment and award dated 11.04.2018 passed by the Motor
Accident Claims Tribunal (Aux.), Bhavnagar in M.A.C.P. No.129 of 2006, whereby the tribunal has dismissed the claim petition.
The brief facts giving rise to the present appeal are that on 23.01.2006, the appellant-claimant went at G.I.D.C., Chitra to see his friend on the Luna
No. GJ-4-AA-7967 of his friend Narendrabhai and thereafter, at about 11:00 a.m., when they were returning on such Luna Moped, at that time, when
they reached at Gadhechi Vadla Circle, the respondent no.1 came by driving Santro car No.GJ-4-D-8302 with full speed, in rash and negligent manner
so as to endanger human life and dashed with the appellant-claimant, causing grievous injuries to him. A FIR was registered against the respondent
no.1 with ‘D’ Division Police Station, Bhavnagar bearing I â€" C.R. No.20/2006. After the accident, the appellant was shifted and admitted as
an indoor patient at the hospital of Dr. Tushar Trivedi, M.S.(Ortho.), Bhavnagar where he was operated for fracture injury at right leg thigh and
plate/screw were inserted. He remained as an indoor patient for many days and after discharge, he was required to take rest at home. That due to
such injuries, he has sustained permanent disablement. That at the time of accident, he was 33 years old, hale and hearty and not addicted to any vices
and he was earning Rs.3000/- per month by doing car driving work and overtime in vacation period.
On service of summons issued by the tribunal, respondent nos.1 and 2 â€" original opponents did not file written statement before the tribunal.
Respondent no.3 â€" Royal Sundaram Alliance Insurance Co. Ltd. filed its written statement at Exh.15 denying all the averments made in the claim
petition and contended that the claimant was required to prove the facts stated in the claim petition. It was clearly denied that the respondent no.3 had
no knowledge about the age, income, injuries alleged to have been sustained by the claimant. It was further pointed out at para 12 of the claim petition
that the driver of Luna was sole responsible for the accident whereas at para 7(a), which appears to have been added afterward, it was contended
that the petitioner and his relatives at the time of admission at the hospital of Doctor Trivedi, stated that the injury was caused due to fell down from
the staircase. It was further submitted that the appellant claimant made an excessive claim.
The tribunal, after framing of issues at Exh.28, considered the affidavit of examination in chief, filed by the appellant-claimant at Exh.31, supporting
the averments made in the claim petition. The tribunal, further considered cross-examination of the appellant-claimant made by the respondent no.3
â€" Insurance Company wherein the appellant has admitted that at the time of accident, he was doing the business of driving and had experience of
driving for 6 to 7 years prior to the accident. It was further admitted that he was aware about the difference between the injuries sustained in a
vehicular accident and injuries sustained on falling down from the staircase. It was stated by the appellant-claimant in his cross examination that
respondent no.1-Bhaveshbhai Trivedi shifted him to the hospital and thereafter, he came into contact with him. He did not know respondent no. 2 â€
Yogeshbhai Govindbhai Sanga.
The tribunal also cross â€" examined the appellant-claimant considering the nature of the case wherein he has admitted that when he was shifted
on stretcher to the hospital, he was conscious. It was admitted by him that he was accompanied by his friend Narendrabhai and at that point of time,
respondent nos.1 and 2 did not register the case but they were with him. He also stated in his cross examination that he sustained injuries in vehicular
accident. However, thereafter Dr. Tusharbhai Trivedi was informed on next day that he sustained injury in vehicular accident near Vadla. It was
further stated by him in cross-examination that he was not aware about fact that if the vehicle is insured then compensation can be claimed nor he
was aware about the ownership of the Luna involved in the accident.
The tribunal, thereafter considered the deposition of Dr. Tusharbhai Trivedi at Exh.43, wherein he has stated that the appellant-claimant came for
treatment on 23.01.2006 and stated that he sustained injury as he fell down from the staircase. The relatives of the appellant were also present and the
doctor took his signature on the history at the time of treatment, which is produced at Exh.44. It is only on the second day, when after the operation
performed by the doctor, he was informed that the appellant-claimant sustained injuries due to vehicular accident. He therefore, informed police about
the accident and police obtained injury certificate from the doctor during the investigation. In the medical certificate issued at Exh.45 by the doctor, it
was stated by the doctor that the injuries suffered/sustained by the appellant-claimant would also be caused due to fall down from the staircase. He
further stated that the injuries suffered by the appellant claimant is also possible by the vehicular accident. In the cross examination by the respondent
no.3, Dr. Trivedi has stated that the patient was conscious when he was brought before him and he was aware about the fact that if he fell down from
the staircase then the injuries in hip is possible. He also stated that the appellant -claimant has no injury over other parts of the body except hip. He
further stated that the patient did not inform him as to how the accident occurred and the place of accident. The patient did not inform number of the
vehicle.
The tribunal thereafter, considered evidence of examination in chief of Narendrabhai Ambalal Kansara at Exh.57, wherein he has deposed that on
23.01.2006 at about 11:00 a.m, when he was proceeding from RTO circle to Gadhechi Vadla Circle on Luna, bearing registration No.GJ-4-AA-7967,
of the ownership of his brother -Rakeshbhai Ambalal Kansara, at that time, when his friend Harvijaysinh Dilubha Gohil i.e. appellant-claimant was
pillion rider were proceeding on correct side at moderate speed, respondent no.1 came by driving Santro motor car, bearing registration No.GJ-4D-
8308 with full speed, in rash and negligent manner so as to endanger human life, dashed with the Luna and thereby the appellant-claimant fell down
and sustained injuries on his leg. He deposed that he also fell down but sustained normal injuries. He has further stated that the appellant â€" claimant
was admitted at hospital of Dr. Tusharbhai Trivedi, Orthopedic Surgeon, at that time, driver and owner of the Santro car, which dashed with the Luna
also came and asked not to file complaint and assured that he would bare the expenditure of the treatment of the appellant-claimant and therefore, the
appellant- claimant stated that he fell down from the staircase, but on the second day, driver and owner of the santro car refused to give expenditure
for treatment of the doctor. The appellant-claimant informed to police station and complaint was filed against the driver of the car by the appellant-
claimant. In the cross examination, he admitted that after the accident, he took the appellant-claimant to the hospital and at that time, owner of the
Santro car did not come but only driver came and the driver assured that he would bare the medical expenditure. Complaint was filed on the second
day, when the driver and owner of the Santro car refused for making payment of medical expenditure. In further cross examination made on behalf of
the respondent no.3, witness admitted that when he went for registering the case in hospital, he stated that the appellant-claimant fell down from the
staircase. In the cross examination by the tribunal, he admitted that he went on second day at 10’O Clock in the morning to the hospital, at that
time, it was decided to file complaint and thereafter, he along with brother of the appellant â€" claimant, went at police station at about 12.00 noon.
The complaint was lodged by the brother of the appellant-claimant. He further stated that he was not aware about as to whether the Luna was
insured or not but he came to know that the Luna was not insured after a week of the accident. He also admitted that he did not go with the police to
show the place of accident on 24.01.2006. On seeing Panchnama at Exh.37, he stated that he was not called for any panchnama. It was thus admitted
by the respondent no.4 that no complaint was filed on the day of accident but it was filed on the second day of the accident i.e. 24.01.2006.
The tribunal, after considering the oral as well as documentary evidences adduced on behalf of the parties and after perusal of the FIR at Exh.36
and Panchnama at Exh.37 analyzed the facts on record and came to the conclusion that the appellant-claimant had informed the Doctor on the second
day of accident that he sustained injuries on account of vehicular accident was incorrect. The tribunal considered medical case papers at Exh.44 and
45, which shows facts completely different than what is stated in the oral evidence of the appellant- claimant.
The tribunal further relied upon the signature of the appellant- claimant at Exh.44 on medical history, wherein it is stated that the appellant had fell
down from the staircase. In his cross examination, Narendrabhai witness of respondent no.4 also admitted by seeing panchnama at Exh.37 that he did
not go to the show the place of accident and has further submitted that on second day i.e. 24.01.2006, he had gone to the hospital at around 10.00 a.m.
and thereafter, he went to the police station and after returning from the police station, he stayed at the hospital up to 10:00 p.m and therefore, he was
not present when the panchnama was prepared during the 17:10 to 17:40 hours.
On perusal of the panchnama at Exh.37 of place of accident, it further transpires that no remarkable marks were found from the spot or vehicles
alleged to have been involved were also found at the spot of the accident. In the further cross examination by the tribunal, witness Narendrabhai
admitted that he had put his Luna at the spot i.e. side of the road and he went at the spot to bring it back after two days of the accident. However, in
the panchnama prepared on the next day, there was no mention about Luna as the vehicle was not found at the spot.
The tribunal, after considering the aforesaid evidence held that Shri Narendrabhai Kansara, appears to have changed his version about the manner
in which the appellant -claimant has sustained injuries as his oral evidence is contrary to the facts so as to help the appellant-claimant to get the
compensation.
The tribunal has therefore, concluded that the said witness had stated false facts. The tribunal after relying upon the oral evidence of the doctor,
who is independent witness, wherein he stated that on the date of accident on 23.01.2006, it was informed to him that the injuries sustained by the
appellant-claimant as he fell down from the staircase. The tribunal therefore, relying upon the deposition of the doctor as well as documents submitted
by the doctor came to the conclusion that the facts stated in the FIR are not true and correct as the doctor has no reason to write false history in his
records and as the doctor has not supported the case of the appellant- claimant, the deposition of the claimant was discarded.
The tribunal therefore, considering the conduct of the appellant- claimant and his witnesses as well as documentary evidences available on record,
came to the conclusion that possibility of false case cannot be ruled out and conduct of every person connected with the case except doctor is found
suspicious. The tribunal, therefore discarded the chargesheet filed by the police under Section 337 of the Indian Penal Code against the respondent
no.1.
Learned advocate Mr. Kaash K. Thakkar for the appellant- claimant submitted that the tribunal has passed the impugned order only on the basis
of assumption and presumption as the tribunal failed to appreciate that there was no reason to discard opinion of the Investigating Officer and the
chargesheet along with the statement of the appellant and witnesses. He relied upon the decision of the Supreme Court in case of Mangla Ram Vs.
The Oriental Insurance Co. Ltd. rendered on 06.04.2018 in Civil Appeal Nos. 2499-2500 of 2018 to point out that once police has filed chargesheet
against the respondent no.1, tribunal could not have concluded that accident has not taken place. He further relied upon the decision of Apex Court in
case of Duclina Fernandes Vs. Joaquim Xavier Cruz reported in (2013) 10 SCC 646 to submit that the tribunal could not overlook investigation of the
case registered against the respondent which prima facie shows negligency on the part of the respondent no.1 for causing the accident. It was further
submitted that the respondent no.1 had confessed his crime in Lok Adalat and fine of Rs.300/- was also imposed upon him and therefore, it could not
be said that no accident has taken place. Reliance was also placed on decision of Hon’ble Supreme Court in case of N.K.V. Bros. (P) Ltd. Vs.
M. Karumai Ammal reported in (1980) 3 SCC 457 in support of his submission. It was therefore, submitted that the principle that appellant â€
claimant failed to establish his case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt, could not be
applied by the tribunal under the provisions of the Act. Learned advocate further submitted that it was not necessary for the claimant to give strict
proof of accident caused by a particular vehicle in a particular manner as it may not be possible and it was only necessary to establish the prima facie
case on the touchstone of preponderance of probability. It was therefore, submitted that the tribunal could not have rejected the claim petition in-spite
of evidence to the effect that claimant injury had taken place due to accident involving motor vehicle. Reliance was placed in case of Bimla Devi Vs.
Himachal Road Transport Corporation reported in (2009) 13 SCC 530.
On the other hand, learned advocate Mr. Dakshesh Mehta for the respondent no.3 â€" Insurance Company submitted that the tribunal has rightly
come to the conclusion that no accident has taken place in view of the inconsistency of documentary evidences available on record. He further
submitted that the tribunal after considering the fact that the Doctor, who is independent witness, has produced on record medical history signed by the
appellant-claimant, wherein it is stated that he suffered injury as he fell down from the staircase. Reliance was placed on decision of Apex Court in
case of North West Karnataka Road Transport Corporation Vs. Gourabai and Others reported in (2009) 15 SCC 165 to submit that the medical
evidence showed that the appellant suffered injury as he fell down from the stair case and the evidence produced by the Doctor wherein signature of
the appellant was taken on it stating that he had fell down from the staircase and therefore, the doctor would not have taken signature mentioning
something incorrect. It was therefore submitted that after taking into consideration the medical history at Exh.44 and other oral evidence of witnesses
and incorrect stand of the appellant, the Tribunal has rightly come to the conclusion that no accident has taken place due to which the appellant-
claimant suffered any injury. It was therefore, submitted that the tribunal while analyzing the evidence on record, has considered evidence before it so
as to discard the police complaint, chargesheet and the compounding of offence by the respondent no.1 in Lok Adalat by payment of fine of Rs.300/-.
I have considered the rival submissions made by learned advocates for the respective parties as well as documentary and oral evidences produced
on record. It transpires that the case sought to be put up by the appellant â€" claimant that he suffered injury on his right hip due to accident, which
occurred on 21.03.2006 between the Luna and Santro Car, driven by the respondent no.1. However, when the appellant has given his medical history
before Dr. Trivedi, such fact of accident was not stated by him. Moreover, the Doctor has also admitted in his deposition as well as cross examination
that the fact of accident was not disclosed to him at the first instance, and only on second day, such fact was disclosed to him. The tribunal has further
considered evidence of witness Narendrabhai Kansara at Exh.57, who has alleged to have driven the Luna, which is of ownership of the respondent
no.4.
On analysis of his deposition as well as cross examination, contradictory stand taken by him is coming on record that though, he was present in the
hospital, in the panchnama at Exh. 37, it is stated3 that he was present at the time, when the panchnama was drawn. Moreover, in his deposition as
well as cross examination, it was stated that he kept Luna, which is involved in the accident, on the side of the road had gone to take Luna after two
days of the accident but in the panchnama, no vehicle like Luna was found. Moreover, no marks of any type was found in the panchnama.
It also emerges from the record that neither the extent of damage to the Santro Car or the Luna is shown, which are alleged to have been involved
in the accident and no claim for such damages was made before the tribunal by any of the parties. Reliance placed by the learned advocate of the
appellant on the various decisions cited by him, are not applicable to the facts of the case, as the tribunal after considering the aforesaid evidences has
arrived at finding of fact that no accident had taken place and the appellant-claimant has sustained injury as he fell down from the staircase.
In view of the facts and reasons recorded herein above, no interference is called for in the impugned judgment and award passed by the tribunal
whereby the claim petition of the appellant- claimant is rejected. The appeal therefore, fails and is accordingly dismissed.
Record and Proceedings be sent back to the concerned tribunal forthwith.