Kumara vs Kalasappa and Others

A.V. Chandrashekara, J.—Heard. The appeals are admitted and with the consent of learned Counsel appearing for the parties, it is taken up for final disposal.

MFA No. 1113/2010 has been filed by the claimant in MVC No. 1/2004 which was pending in MACT, Holenarasipura. The connected appeal MFA No. 3256/2010 has been filed by the Insurer on the ground that the Tribunal could not have mulcted liability on the insurer when it is a clear case of fraud.

According to learned Counsel for the Insurer, the very discharge summary issued by Abhaya Hospital, Bengaluru, disclosed that the claimant Kumara did not sustain any injury in a road accident involving a vehicle, but had sustained injuries due to fall from his two wheeler at about 5.30 pm on 26.12.2002 near Holenarasipur. According to learned Counsel for the Insurer, the vehicle that the claimant was riding at that point of time got skid and as a result of the same, he fell down and lost consciousness because of the injury.

Learned Counsel for the claimant has argued that the Insurer has not taken any defence to that effect in the written objections filed before the Tribunal and this is urged for the first time and that the contents of the discharge summary were blown out of proportion to non suit the claimant.

Learned Counsel for the appellant-claimant has argued that the Motor Accident Claims Tribunal have been set up with an avowed object of suitably compensating the victims of road accident and the detailed Judgment and Award passed by the Tribunal cannot be set at knot at this stage.

Per contra, learned Counsel for the Insurer has urged that even though specific evidence is not taken in regard to the false claim being made, nothing comes in the way of the Insurer to point out the unequivocal evidence placed before the Court.

There appears to be strong force in the said submission.

As can be seen from the records, discharge summary issued by Abhaya Hospital, Bengaluru, in which the claimant had been treated as inpatient because of head injury, discloses that he had fallen from his two wheeler at about 5.30 pm near Holenarasipur and the said fall was due to the skidding of the vehicle and consequently sustaining injuries. This information, it appears, had been given by the Attendant while admitting the injured who was unconscious.

Ex. P4 would certificate issued by the Hospital on 19.2.2003 in respect of claimant Kumara discloses that he was admitted by one Nanjunde gowda to Abhaya Hospital. Of course, said Nanjundegowda has not been examined by the claimant. Said Nanjundegowda, according to learned Counsel for the Insurer is none other than father of the claimant.

P.W.2 - Surendra who is brother-in-law of the claimant is said to be eye witness. There is corroboration in regard to the manner in which accident took place in the version of PWs. 1 and 2. Both of them have consistently deposed that the claimant and P.W.2 were proceeding by walk together by the side of the road and motor vehicle came from behind and dashed against the claimant as a result of which he fell down and sustained injuries.

It is not advisable to allow the appeal of the Insurer in its entirety and set aside the Award passed by the Tribunal. It is true that the Tribunal should have adverted its attention towards the contents of discharge summary, more particularly, the history column and relevant entry found in Ex. P4 wound certificate which speaks about one Nanjundegowda having admitted the injured to the said Hospital. In the facts and circumstances of the case, it is better to give an opportunity to the claimants to have their say in regard to the relevant history portion found in discharge summary and the fact of Nanjundegowda having admitted Kumara who was in unconscious state to Abhaya Hospital, Bengaluru.

Accordingly, appeal of the claimant will have to be dismissed and appeal of the insurer will have to be allowed.

ORDER

The appeal filed by the claimant is dismissed and appeal filed by the insurer is allowed.

The Judgment and Award passed in MVC No. 1/2004 pending on the file of Fast Track and MACT, Holenarasipura, is set aside and the matter is remitted to the Tribunal for consideration of the entire matter afresh including the aspect of the cause of accident and the quantum of compensation.

Notwithstanding dismissal of the appeal by the claimant, the Tribunal would be at liberty to consider the question of granting suitable compensation within the purview of sections 166 and 168 of Motor Vehicles Act, 1988, in case it were to allow the petition.

It is also made clear that learned Presiding Officer of the Tribunal to give opportunities to both the parties to lead additional evidence, if any, and to dispose of the matter after hearing the arguments and keeping in mind inconsistencies now brought to the notice of this Court.

Parties are at liberty to amend the pleadings suitably and opportunity be given to the parties to amend their petitions. Since the matter is of the year 2002, learned Judge to dispose of the matter within four months from 4.3.2015.

Parties shall appear before the Tribunal on 4.3.2015 without waiting further notice. The amount in deposit be returned to the Insurer.

There is no order as to costs.