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Judgment
Ravikumar, J.—This appeal is filed against the award in O.P. (MV) No. 1026 of 2004 of the Motor Accidents Claims Tribunal, Thalassery. As per the award, the claim petition filed by the appellant/petitioner u/s 166 of the Motor Vehicles Act, 1988 was dismissed on the ground that he had suppressed the material facts as to the cause of the accident. The case of the appellant was that while he was walking through the road side at Karthikapuram Junction at about 6.30 a.m. on 17.3.2004, he was hit by a jeep bearing Registration No. KL13/A 6351, driven by the second respondent in a rash and negligent manner, coming from Karthikapuram side. According to the appellant/petitioner, he sustained injuries in the said accident and he was, initially, taken to Pariyaram Medical College and, later, to Koyili Hospital, Kannur. It was seeking pecuniary atonement for the same M.A.C.A. No. 441 OF 2012 that he filed the claim petition alleging that the accident had occurred due to the negligence of the second respondent, the driver and making necessary averments against the first and third respondents. The appellant claimed an amount of Rupees Two lakhs as compensation from respondents 1 to 3, jointly and severally. During the pendency of the petition, the first respondent died and subsequently, his legal representatives were impleaded as supplemental respondents 5 to 10.
The third respondent, the insurer, filed a written statement raising the following contentions: Rashness and negligence alleged against the second respondent in the matter of accident is false. Going by the policy conditions, the insured was duty bound to inform the accident and also to produce the vehicle records and the driving licence of the driver for verification. While admitting subsistence of a valid policy in respect of the vehicle allegedly involved in the accident it is specifically stated that such formalities were not complied with.
The second respondent filed a written statement denying the very accident. Invariably, it also carried denial of negligence. The facts that he was holding a valid driving licence and the vehicle was having valid insurance with the third respondent were also highlighted.
Based on the rival contentions, the Tribunal framed the following points for consideration:
(1) Whether there was an accident as alleged by the petitioner and, if so, who is negligent in the matter of accident?
(2) Whether the petitioner is entitled for compensation and, if so, what will be the compensation?
Obviously, the necessity to consider the second limb of the first point as also the second point as such was depending on the decision on the first limb of the first point.
On the side of the appellant/petitioner, he was examined as PW1 and Exts. A1 to A7 were marked. No evidence, either oral or documentary, was adduced from the side of the respondents. Ext. A1 is the copy of the FIR in Crime No. 149 of 2004 of Peringome Police Station. It would reveal that it was registered on 17.3.2004 pursuant to the receipt of the private complaint by the appellant''s wife before the Judicial Magistrate of the First Class, Payyannur on being forwarded for investigation under the provisions of Section 156 (3) of the Code of Criminal Procedure. Ext. A3 is the copy of the treatment certificate dated 5.4.2004 issued from Koyili Hospital, Kannur. The clinical history was shown therein thus:
Fall from jeep near Tabore at about 6.30 AM on 17.3.2004." Ext. A4 is the copy of discharge summary from Koyili Hospital, Kannur, wherein the history and clinic finding in page No. 2 recorded as herein:
Fall from jeep. Head injury.
It is evident from the impugned award that on Court questions, the appellant/petitioner deposed that he was brought to the hospital by his wife and sister, who accompanied him at the time of accident. The appellant has also conceded that at the hospital the details were furnished by his wife and they might be true. As noticed hereinbefore, the alleged cause of accident was specifically stated in Exts. A3 and A4 as "fall from jeep". On a careful evaluation of the evidence on record, oral and documentary, the Tribunal has arrived at the conclusion that no motor accident is involved in the case and the petitioner had actually suppressed the material facts as to the cause of the accident. In the said circumstances, the Tribunal virtually declined to believe the version relying on Ext. Al FIR. It is found that the petitioner had sustained injuries by fall from jeep and not on account of hit by a jeep while walking through the road. Based on the finding that the manner and the nature of the accident as stated in the claim petition is false, it was found that there was no accident as alleged by the petitioner. Consequently, issue No. 1 was answered against the appellant/petitioner. Resultantly, the claim petition was dismissed.
We have heard Sri. Wilson Urmese, the learned Counsel appearing for the appellant/petitioner, and Sri. M.A. George, the Standing Counsel appearing for the third respondent. There can be no doubt with respect to the position that to claim compensation u/s 166 of the Motor Vehicles Act, the application must have been one arising out of an accident of the nature specified in sub-section (1) of Section 165. Going by sub-section (1) of Section 165, the claim for compensation must be in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles. It is to be noted that the second respondent-driver specifically denied the very accident. Thus, a perusal of the aforesaid provisions would undoubtedly show that use of the vehicle is a sine qua non for entertaining a claim for compensation. In other words, the use of the vehicle allegedly involved in the accident has to be established by the claimant to get entitlement to claim compensation. The general position of law that one has to adduce evidence to prove the case pleaded cannot be given a go-by, as such, merely because an application u/s 166 of the Motor Vehicles Act is a claim for compensation. In fact, the petitioner had not adduced sufficient evidence even to arrive at a finding that the fall from the jeep had occurred in such circumstances to bring it under an accident arising out of the use of the motor vehicle driven by the second respondent. As stated earlier, use of the vehicle in question involved in the accident has to be proved. To say that one has sustained injuries by the hitting of a jeep while walking through the road side is one thing and to say that he has sustained injuries on falling from the jeep is another thing. The latter would invariably to suggest that the injured was inside the vehicle in question. For passing an award the Tribunal has to be satisfied that there was use of the vehicle concerned in respect of the accident and that the accident in question was due to the use of that vehicle. So also, the liabilities of the person/persons who are involved in the use of the vehicle and the person/persons who are vicariously liable, also could not be ascertained by the Tribunal in case of failure to establish the use of a particular vehicle and the nature of the accident. The petitioner did not have a case that he was a passenger in the jeep allegedly involved in the alleged accident. His case was that at the time of the accident he was accompanied by his wife and sister. The appellant has not cared to adduce evidence through either of them. It is alleged that his wife had filed a private complaint that led to the registration of Crime No. 149/04 of Peringome Police Station, but, had not adduced any evidence as to what its outcome. It is to be noted that the said crime was registered in the year 1994 and award in O.P. (MV) No. 1026 of 2004 was passed only on 28.2.2011. The Tribunal arrived at the finding, taking into account the evidence on record, that it is nothing but an after thought with a view to gather the fruits of a welfare legislation and that the appellant had failed to prove the alleged accident. In the circumstances, the observations of the Tribunal that the appellant/petitioner had suppressed the material facts as to the cause of the accident cannot be said to be unfounded. Evidently, the petitioner has allowed the cause of the injuries to remain shrouded in mystery. In short, it is evident that the appellant/petitioner had failed to establish that he had sustained injuries in a motor accident to claim compensation u/s 166 of the Motor Vehicles Act. In view of the said circumstances, we find no reason to interfere with the award passed by the Tribunal dismissing the claim petition. We also find no reason to interfere with the direction to forward the copy of the award to the District Collector, Kannur for realization of court fee.
This appeal is liable to fail and, accordingly, it is dismissed.